New South Wales v Bryant [2005] NSWCA 393 | Case summary

New South Wales v Bryant [2005] NSWCA 393 | Case summary | Zoe

[12]

16 November 2005 STATE OF NEW SOUTH WALES v BRYANT Mr Bryant, while driving his car, was pursued and then stopped by police in connection with an alleged offence of "breaking traction" with the road. In the course of arresting Mr Bryant, a police officer drew his revolver and Mr Bryant was subjected to violent conduct. In upholding a claim by Mr Bryant against the State of New South Wales for trespass to the person, wrongful arrest and false imprisonment, the District Court awarded exemplary damages to Mr Bryant. Held in relation to exemplary damages: Per Basten JA (Beazley and McColl JJA agreeing):

Section 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW) makes the Crown liable in respect of "the tort" of the person in its service, which includes the acts, the state of mind accompanying the acts and the breach of duty: at [5] - [15]. Darling Island Stevedoring and Lighterage Co Ltd v Long (1956-57) 97 CLR 36 at 61 discussed. Canterbury Bankstown Rugby League Football Club Ltd v Rogers (1993) Aust Torts Reps (81-246) distinguished.
The statement in s8(1) of the Act that the Crown is vicariously liable "in respect of" a tort committed by a police officer, means that the Crown is responsible for payment of any damages and should not be read down so as to apply only to compensatory damages, to the exclusion of exemplary damages: at [16].
While the introduction of the new Part 4 of the Act makes the State solely liable for torts committed by police officers in performance or purported performance of their functions, the purpose of the new Part 4 was to protect police officers and not to diminish the rights of citizens who may be the victims of conscious wrongdoing in contumelious disregard of their rights. Accordingly, since there was no reason to suppose that police officers could not be liable for exemplary damages prior to the introduction of s 9B of the Act, in circumstances where the Crown was vicariously liable pursuant to s 8(1), s9B must have been introduced on the assumption that the Crown was liable for exemplary damages, and would remain so: at [16] - [21].
As a matter of statutory construction, the State can be liable for exemplary damages, in circumstances where the conduct of police officers would, under the general law, have justified such an award against an individual officer. That result is not changed by the grant of immunity from suit for individual officers. Nor need any additional element of contumelious conduct on the part of some superior officer be established, the liability of the State being vicarious and not direct: at [31]. Hollis v Vabu Pty Ltd (2001) 207 CLR 21, Gray v Motor Accident Commission (1998) 196 CLR 1 and Lamb v Cotogno (1987) 164 CLR 1 discussed.

[15]

16 November 2005 STATE OF NEW SOUTH WALES v BRYANT Judgment 1 BEAZLEY JA: I agree with Basten JA. 2 McCOLL JA: I agree with Basten JA. 3 BASTEN JA: The primary issue in this case is whether the trial judge was correct in awarding, in relation to tortious conduct of a police officer, an amount by way of exemplary damages, to be paid by the State of New South Wales. 4 The circumstances in which the issue arose involved an arrest carried out by a police constable on the evening of 27 June 1998. Mr Bryant, the plaintiff in the Court below, was the driver of a motor vehicle with a powerful engine, who was said to have committed the offence of "breaking traction" and spinning his wheels whilst driving from an unsealed area on an industrial estate onto a public road. Police pursued the plaintiff's vehicle and, when it stopped, attempted to arrest the plaintiff. During the course of the arrest, a police officer drew his service revolver and the plaintiff was grabbed by the arms as he left the vehicle, pulled over and thrown on the bonnet of the police vehicle. He was handcuffed with sufficient force to break his left wrist. At some stage it appears that he was thrown onto the ground and hit his head on the roadway. He was eventually taken to a police station, and charged with resisting arrest, breaking traction and assaulting police. Although convicted in the Local Court of the first two charges, both convictions were quashed on appeal. 5 There were significant differences between the story told by the plaintiff, corroborated in significant respects by three friends who had been with him in the car, and the story told by the police. The trial judge was satisfied that the events occurred largely as the plaintiff had described them. The plaintiff was awarded damages for trespass to the person, wrongful arrest and false imprisonment. The factual findings were not challenged on appeal, nor were the awards of general damages, past expenses and past economic loss, totalling some $56,000. Leave was sought, however, to challenge the award of $50,000 on account of exemplary damages and $25,000 on account of future loss of earning capacity. It is convenient to deal first with the question of exemplary damages.

[16]

Exemplary damages 6 The submissions put on behalf of the State were, in substance, that the focus for determining whether to award exemplary damages should properly be on the state of mind and conduct of the person liable to pay such damages. In accordance with the language of Knox CJ in Whitfeld v De Lauret and Co Ltd (1920) 29 CLR 71 at 77, adopted in the joint judgment in Gray v Motor Accident Commission (1998) 196 CLR 1 at [14] and [20], such damages should normally be awarded only where there has been "conscious wrong doing in contumelious disregard of another's rights". If that can properly be said of the conduct of the police officer responsible for the arrest and taking into custody, absent some statutory protection, an award may properly be made against him. However, the State argued that that is not sufficient to justify an award against it: for such an award to be made, there must be a finding of actual encouragement of or involvement in the conscious wrong doing by a senior officer being in a position of control with respect to the Police Service generally. 7 As will be noted in more detail below, there is some support for that position in jurisdictions applying general law principles in relation to vicarious liability. Thus, in Kuddus v Chief Constable of Leicestershire [2002] 2 AC 122 at 162, Lord Scott of Foscote stated: "The objection to exemplary damages awards in vicarious liability cases seems to me to be fundamental. The only acceptable justification of exemplary damages awards in cases falling within Lord Devlin's first category … 'oppressive, arbitrary or unconstitutional actions by the servants of the government', including police officers, is that the conduct complained of has been so outrageous as to warrant a punitive response. As Lord Devlin said [in Rookes v Barnard [1964] AC 1128 at p 1227] '… the plaintiff cannot recover exemplary damages unless he is the victim of the punishable behaviour.' The other side of the coin is, in my view, equally valid: the defendant should not be liable to pay exemplary damages unless he has committed punishable behaviour. This principle leaves no room for an award of exemplary damages against an individual whose alleged liability is vicarious only and who has not done anything that constitutes punishable behaviour."

[19]

It follows that, where s 8 is otherwise satisfied, it will cover a tort committed by a police officer. 9 In the course of the appeal, no argument was addressed to the operation of s 8(1)(b), nor to the qualification expressed in sub-s (2). 10 According to the argument for the State, s 8(1) renders the Crown liable in respect of "the tort" committed by its officer, but not in respect of the mental element accompanying the officer's conduct which might render him or her liable for exemplary damages. This contention finds its source in the approach adopted by Kitto J, in explaining the nature of vicarious liability under the general law, in Darling Island Stevedoring and Lighterage Co. Ltd v Long (1956-57) 97 CLR 36 at 61. In the passage relied on, Kitto J stated: "The master's liability, when it exists, is not a liability substituted for that of the servant. It exists, I think, not because the servant is liable, but because of what the servant has done. It is a separate and independent liability, resulting from attributing to the master the conduct of the servant, with all its objective qualities, but not with the quality of wrongfulness which, in an action against the servant, it may be held to have because of considerations personal to the servant. The master 'is to answer for the act as if it were his own': … . He is not to answer for the servant's liability, but for his act; and to say that one man must 'answer' for another's act implies that it was a wrongful act for the former to do." 11 It is generally accepted that this explanation was obiter. Fullagar J adopted a different view (at 57): "The rule is, in my opinion, rightly stated, as it always is, in terms of liability and not in terms of duty. The liability is a true vicarious liability: that is to say, the master is liable not for a breach of duty resting on him and broken by him but for a breach of duty resting on another and broken by another." 12 The analysis undertaken by Kitto J was adopted by this Court in Canterbury Bankstown Rugby League Football Club Ltd v Rogers (1993) Aust Torts Reps ¶ 81-246 in considering the vicarious liability of the club for the acts of a player, in determining whether an award of exemplary damages might be made against the club. In that case the offending player, Mr Bugden, had unlawfully hit Mr Rogers across the face with his forearm. This was found to be conduct warranting a relatively small award of $7,500 for exemplary damages against Mr Bugden. In relation to the liability of the club, Giles AJA (Handley JA agreeing) stated (at p 62,554-5): "If Canterbury Bankstown's vicarious liability is the result of attributing to it Bugden's conduct but not the quality of the wrongfulness of that conduct … the qualities warranting exemplary damages should not be attributed to Canterbury Bankstown, and it would be contrary to the justification for exemplary damages to award the same $7,500 against Canterbury Bankstown simply on the ground that it is vicariously liable for what Bugden did. It would have to be shown that Canterbury Bankstown itself engaged in conduct showing a conscious and contumelious disregard for Rogers' rights so that it should be punished and deterred from engaging in like conduct."

[20]

Although the sentence commenced as a hypothetical, his Honour appears to have accepted the correctness of the proposition identified. 13 The dichotomy drawn in this passage between "conduct" and "the quality of wrongfulness of that conduct" is by no means clear. For an act of, for example, driving a motor vehicle to be wrongful, it must be done carelessly. The mental state of the driver, demonstrating a lack of attention to other road users, must apparently be attributed to the employer, but not a contumelious disregard for the rights of other road users. This is, in the language of Fullagar J in Darling Island Stevedoring (at 57) adopted by the joint judgment in Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at [34], a distinction which must have been adopted "not by way of an exercise in analytical jurisprudence but as a matter of policy, which did not really need to be juristically rationalised". However, to understand the distinction being drawn by Kitto J, it is necessary to refer to the opening passages in that section of his Honour's judgment in which he identified the issue, to which the passage relied on by the State is the conclusion. 14 As appears at p 60, Kitto J was seeking to demonstrate the unsoundness of the proposition that "whenever a servant incurs a liability in damages by reason of an act or omission in the course of his employment …, the common law subjects his master to a like liability". His Honour continued: "I think it is fair to say that both in judicial statement and in academic writing confusion has arisen at times from the use of language which is ambiguous because it may refer either to a person's acts or omissions considered simply as conduct or to the legal quality of those acts or omissions considered as infringements of some right of another person. Thus 'negligence' is often used to refer to a failure to use reasonable care, without necessarily importing that the failure constitutes in the particular instance a breach of a duty to use reasonable care."

[21]

Thus, the first distinction being drawn by reference to "the quality of wrongfulness" requires a distinction between the conduct and the legal duty. Kitto J continued: "So, too, it is often said that a master is liable for the 'torts' or 'wrongs' of his servant committed in the course of the employment, when all that is in mind is that a master is answerable for acts of his servant which are done in the course of the employment and depart from a standard or course of conduct which happens to be obligatory upon both master and servant. The tendency to confuse the acts of a servant (matters of pure fact) with his torts (matters of mixed fact and law) is fostered by the use of the expression 'vicarious liability'." 15 To the extent that the distinction being drawn by Kitto J in Darling Island Stevedoring is an accurate reflection of the general law, it is clear that a different analysis is required by s 8(1), which makes the Crown liable in respect of "the tort" of the person in its service, an expression which must be understood to encompass both the acts, the state of mind accompanying the acts and the breach of duty. Accordingly, it is the analysis of Fullagar J which is reflected in s 8. Thus the distinction identified in Rogers is not reflected in s 8 and the approach adopted by this Court in that case does not govern the statutory liability of the Crown created by s 8(1) of the Vicarious Liability Act. 16 The statement that the Crown is vicariously liable "in respect of" a tort committed by a police officer, would appear to be a statement that the Crown is responsible for payment of any damages, for which the police officer would be responsible if he or she had been sued. The argument for the State requires that that conclusion be read down so as to apply only to compensatory damages, to the exclusion of exemplary damages. The basis for such a construction is not immediately apparent from the words of the statute. In principle, however, the State seeks to rely upon the policy underlying the imposition of liability for exemplary damages and, to the extent that it assists, extrinsic material in the form of the Second Reading Speech for the Vicarious Liability Act, pursuant to s 34 of the Interpretation Act 1987 (NSW). 17 The latter point may be briefly disposed of. A reading of the Second Reading Speech on the introduction of the Bill for the Vicarious Liability Act into the Legislative Assembly, on 17 March 1983, reveals nothing which would demonstrate any relevant limitation on the language or operation of s 8. 18 On 13 November 2003 the Government introduced in the Legislative Assembly the Police Legislation Amendment (Civil Liability) Bill. That Bill, which was duly enacted and commenced on 1 January 2004, introduced into the Vicarious Liability Act a new Part 4, including s 9B which, relevantly for present purposes, provides: 9B(1) A police tort claim is a claim for damages for a tort allegedly committed by a police officer ( the police officer concerned ) in the performance or purported performance of the officer's functions (including an independent function) as a police officer, whether or not committed jointly or severally with any other person. (2) Except as provided by this Part, a person may not in any legal proceedings make a police tort claim against the police officer concerned, but may instead make the claim against the Crown.

[22]

The exceptions are not relevant for present purposes. Nor was this provision in force when the present proceedings were commenced, in 2001. 19 Part 4 also included a new s 9E, which contains the following provision: 9E Nothing in this Part: (a) makes the Crown vicariously liable for a tort committed by a police officer if it would not otherwise be vicariously liable for that tort … . 20 The effect of the new Part 4 of the Vicarious Liability Act, and in particular, s 9B(2), is to make the State solely liable for torts committed by police officers in the performance or purported performance of their functions. However, if, prior to the introduction of that provision, exemplary damages could not generally be obtained against the State, but only against the individual officer, the effect of that provision, so it was argued, was to extinguish any right to exemplary damages by extinguishing the right to bring proceedings against the individual tortfeasor who alone had been liable. As the Second Reading speech for that Bill indicates, the intention was to protect police officers: there is no suggestion that the Bill was intended to diminish the rights of citizens who may be the victims of conscious wrongdoing in contumelious disregard of their rights. Since there was no reason to suppose that police officers could not be liable for exemplary damages, prior to the introduction of s 9B, in circumstances where the Crown was vicariously liable pursuant to s 8(1), the Bill must have been introduced on the assumption that the Crown was liable for exemplary damages, and would remain so. 21 There remains for consideration the State's argument based on policy. The relevant policy identified by the State involved two limbs: namely, first, the basis upon which the Crown was said to be vicariously liable for the torts of police officers and, secondly, the justification more generally for the imposition of exemplary damages in the limited circumstances in which such an award is appropriate. 22 The position of employers generally, in relation to vicarious liability, may need to be distinguished in some respects from the position of the Crown with respect to police officers. Nevertheless, the comments made by the High Court in Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at [32]-[42] are instructive. As already noted, the joint judgment held, at [34], adopting the views of Fullagar in Darling Island Stevedoring, "that the modern doctrine respecting the liability of an employer for the torts of an employee was adopted not by way of an exercise in analytical jurisprudence but as a matter of policy". As their Honours further noted: "[41] In Bazley v Curry [1999] 2 SCR 534 at 552-555, the Supreme Court of Canada saw two fundamental or major concerns as underlying the imposition of vicarious liability. The first is the provision of a just and practical remedy for the harm suffered as a result of the wrongs committed in the course of the conduct of the defendant's enterprise. The second is the deterrence of future harm, by the incentive given to employers to reduce the risk of accident, even where there had been no negligence in the legal sense in the particular case giving rise to the claim. [42] In general, under contemporary Australian conditions, the conduct by the defendant of an enterprise in which persons are identified as representing that enterprise should carry an obligation to third persons to bear the cost of injury or damage to them which may fairly be said to be characteristic of the conduct of that enterprise. In delivering the judgment of the Supreme Court of Canada in Bazley v Curry (at 548), McLachlin J said of such cases that 'the employer's enterprise [has] created the risk that produced the tortious act' and the employer must bear responsibility for it. McLachlin J termed this risk 'enterprise risk' and said that 'where the employee's conduct is closely tied to a risk that the employer's enterprise has placed in the community, the employer may justly be held vicariously liable for the employee's wrong'." 23 This reasoning applies, perhaps with added force, in relation to the Crown and police officers. Thus, the provisions of the Vicarious Liability Act demonstrate an acceptance on the part of the Government that it is both just and practical that citizens who have been unlawfully harmed by police seeking to carry out their duties, should have a remedy against the State, as the representative of the community on whose behalf policing activities are undertaken. Further, there is logic in seeking to deter future harm by imposing on the State, which has responsibility for the appointment, training, promotion and direction of the Police Service, an incentive to take appropriate steps to avoid the risk of future tortious activity. 24 This last consideration involves acceptance that the function of tort liability is not merely to compensate the victims of tortious conduct, but also to deter potential tortfeasors. In that sense, the awarding of exemplary damages need not be seen as an anomalous addition to tort law, but may rather be seen as providing an augmented element of deterrence, in the circumstances where such damages are available. Thus, in Gray v Motor Accident Commission (1998) 196 CLR 1 at [11] the joint judgment of four members of the Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) commented on the view that there were apparent anomalies involved in the availability of exemplary damages, noting at [11]: "As Windeyer J said in Uren [ v John Fairfax and Sons Pty Ltd (1966) 117 CLR 118 at 149-150]: 'Compensation is the dominant remedy if not the purpose of the law of torts today. But fault still has a place in many forms of wrongdoing. And the roots of tort and crime in the law of England are greatly intermingled. Some things that today are seen as anomalies have roots that go deep, too deep for them to be easily uprooted.'"

[24]

The Court held that, because substantial punishment had been imposed on the driver for his conduct which was the subject of the action for exemplary damages, such damages could not be awarded: at [56]. 26 Both the context of the statutory liability considered in Gray, and the language of the statute itself, differ from s 8 of the Vicarious Liability Act: nevertheless, those differences do not militate against the adoption of the same conclusion. The conclusion reached in Gray was reinforced by the power conferred on the compulsory insurer to recover the amount of any money paid or costs incurred by the insurer from the insured: at [37]. A similar right of recovery would appear to arise in the present case. Pursuant to the Employees Liability Act 1991 (NSW) an employee "is not liable to indemnify, or to pay any contribution to," an employer in respect of a liability incurred by the employer for a tort committed by the employee: s 3(1). Nevertheless, that provision does not apply to a tort where the conduct constituting the tort was "serious and wilful misconduct". Although that terminology is not identical with that adopted with respect to liability for exemplary damages, there is likely to be a large measure of overlap. In Police Service (NSW) v Honeysett (2001) 53 NSWLR 592, this Court held that a police officer was an employee for the purposes of the Employees Liability Act: that conclusion was effectively confirmed by the addition of a s 2A, so declaring, pursuant to the Police Legislation Amendment (Civil Liability) Act 2003. 27 The conclusion that the Vicarious Liability Act, in imposing vicarious liability on the State for exemplary damages, is not at odds with the policy of the general law, also obtains support from comments made in the judgment of the High Court in Lamb v Cotogno (1987) 164 CLR 1. That case was concerned, like Gray, with the power to award exemplary damages arising from a tort involving the use of a motor vehicle. Because the injury occurred from the use of a vehicle, in respect of which the driver held compulsory cover under the Motor Vehicles (Third Party Insurance) Act 1942 (NSW), it was the insurer, rather than the driver which would bear ultimate responsibility for paying the exemplary damages. The Court stated (at p 7): "It was accepted upon both sides that the practical effect of the legislation was that the damages, including the exemplary damages, awarded against the defendant would be paid by the authorised insurer. Nor was it contemplated as a practical possibility that it would be necessary for the plaintiff to attempt to execute his judgment against the defendant before recovery against the authorised insurer."

[28]

After setting out the appropriate guidance, the judgment continued (at 517F): "In the case of exemplary damages we have taken into account the fact that the action is normally brought against the chief officer of police and the damages are paid out of police funds for what is usually a vicarious liability for the acts of his officers in relation to which he is a joint tortfeasor (see now s 88 of the Police Act 1996). In these circumstances it appears to us wholly inappropriate to take into account the means of the individual officers except where the action is brought against the individual tortfeasor. This would raise a complication in the event of the chief officer seeking an indemnity or contribution as to his liability from a member of his force. It is our view if this situation does arise it should be resolved by the court exercising its [statutory power] to order that the exemplary damages should not be reimbursed in full or at all if they are disproportionate to the officer's means." 30 For completeness, it may be noted that s 88 of the Police Act 1996 (UK) relevantly provides as follows, in terms not dissimilar to s 8 of the Vicarious Liability Act: 88 Liability for wrongful acts of constables (1) The chief officer of police for a police area shall be liable in respect of any unlawful conduct of constables under his direction and control in the performance or purported performance of their functions in like manner as a master is liable in respect of any unlawful conduct of his servants in the course of their employment, and accordingly shall, in the case of a tort, be treated for all purposes as a joint tortfeasor. (2) There shall be paid out of the police fund - (a) any damages or costs awarded against the chief officer of police in any proceedings brought against him by virtue of this section and any costs incurred by him in any such proceedings so far as not recovered by him in the proceedings; and (b) any sum required in connection with a settlement of any claim made against the chief officer of police by virtue of this section, if the settlement is approved by the police authority. (3) Any proceedings in respect of a claim made by virtue of this section shall be brought against the chief officer of police for the time being … . 31 Accordingly, as a matter of statutory construction the State can be liable for exemplary damages, in circumstances where the conduct of police officers would, under the general law, have justified such an award against an individual officer. That result is not changed by the grant of immunity from suit for individual officers. Nor need any additional element of contumelious conduct on the part of some superior officer be established, the liability of the State being vicarious and not direct.

New South Wales v Bryant

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