In another passage he said:-
"This is a unique case involving this plaintiff in his particular environment which was controlled by the police, he being a servant of the police.. in this particular case."
30 It is not entirely clear whether his Honour was of the view that these findings absolved the PCYC from its employer's duty to the plaintiff to provide him with a reasonably safe working environment. However, even if the continuance of this duty was contemplated in the unique situation found by his Honour, it is clear that his Honour was of the view that the plaintiff also failed against the PCYC on the issue of causation. He found that, even if the PCYC had had in place a policy and a structure for dealing with harassment in the workplace, the plaintiff would not have availed himself of it. This was made clear by his reaction, referred to above, to Mr Hardy's suggestion that he should report the matter of Sergeant's Spiteri's behaviour. Had the PCYC fulfilled its duty to him by providing him with a viable means of complaint to it, he would not, on the evidence, have utilised it.
31 Consequent upon his findings, the trial judge held the State liable to the plaintiff but found a verdict in favour of the PCYC on the plaintiff's claim against it. The cross-claims were decided accordingly.
32 The Appeal
The State appealed against his Honour's decision. The notice of appeal contained a number of grounds. However in argument before the Court these were distilled into four main propositions. Mr Finnane QC, dealing with the tortious conduct of Sergeant Spiteri said:-
"The first submission I make is that we are not responsible for his duties within the organisation, unless he is actually executing the office of a constable, and he is not executing the office of a constable when he is working as an administrator.
Secondly, if the Police Service is responsible, it is not responsible for anything that he does outside the course of his employment. Thirdly, what occurred, his acts and the consequences were not foreseeable. Fourthly, the employer was the organisation which had the duty to set up the system. It is not the Police Service."
33 The first submission related to the purported allocation of roles in the agreement referred to above. I am satisfied that his Honour was entitled to ignore the terms of this document, in the face of the evidence from, particularly, Acting Inspector Crook, as to the way in which the day to day activities in the unit, occurred. The evidence established that the Sergeant acted, in all respects, as a police officer in charge of a police operation and not as an administrator in the employ of PCYC. As such, he exerted authority and control over Mr Jeffery in his work inside and outside the head office premises. He was responsible to the Police Service and at all stages amenable to its discipline. No control was exercised over him by the PCYC. The first submission, in my opinion, fails.
34 The second submission involves the question of vicarious liability. The trial judge, in finding against the State, did not find it necessary to resort to this doctrine. However, it clearly arose as on issue in the pleadings and it has been accepted as a live question in the appeal. Although, in his dealings with Mr Jeffery, the Sergeant was acting as a police officer with the result that, at common law, the State could not be vicariously liable for his actions, the situation had been changed by legislation, the Law Reform Vicarious Liability Act, 1983, of which s. 8(1) provides:-
"Notwithstanding any law to the contrary, the Crown is vicariously liable in respect of the tort committed by a person in the service of the Crown in the performance or purported performance by the person of a function (including an independent function) where the performance or purported performance of the function:
(a) is in the course of his service with the Crown or is an incident of his service (whether or not it was a term of his appointment to the service of the Crown that he perform the function); or
(b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the Crown."
35 There was no dispute that Sergeant Spiteri was relevantly "a person in the service of the Crown" and that his conduct towards Mr Jeffery was tortious. It was submitted, however, that the sergeant's threatening and abusive acts were not committed in the performance or purported performance of a function in the course of his service with the Crown, and, thus, the State could not be vicariously liable for them and their consequences under this section.
36 In support of this submission reliance was placed upon Deatons Pty Ltd v Flew (1949) 79 CLR 370, the case in which a hotel proprietor was held not to be vicariously liable for the action of a barmaid in throwing beer and a glass at the plaintiff. This case and later cases in the same area were considered by the Court in Prior v State of New South Wales (CA unreported 23 October 1998) in which Sheller JA (Handley JA agreeing) said of it:-
"That case illustrated the difficulty in which a plaintiff may be placed if the plaintiff's case against the employer goes no further than demonstrate an unprovoked and unjustified assault by the employee, for, as Dixon J said at 380, the assault "might have proceeded from private spite on the part of the [employee] or from some other cause quite unconnected with the [employee's] occupation or employment." For that reason, in that case, the Full Court of the Supreme Court set aside the verdict: ((1949) 49 SR (NSW) 210). However, Jordan CJ had thought (see 222) that there might be a reasonable inference that the barmaid's action was an instinctive act of self defence against an assault upon her while she was doing what she was employed to do and that on that basis it would be open to the jury to find that the employer was liable. This suggestion the High Court rejected. Dixon J at 381 observed that the barmaid did not throw the beer or the glass in the course of maintaining discipline or restoring order." His Honour continued:
"The general and somewhat indefinite position was relied upon that the barmaid was there to deal with customers and with situations and this was the manner in which she dealt with the plaintiff and the situation which he caused. It is not a case of a negligent or improper act, due to error or ill judgment, but done in the supposed furtherance of the master's interests. Nor is it one of those wrongful acts done for the servant's own benefit for which the master is liable when they are acts to which the ostensible performance of his master's work gives occasion or which are committed under cover of the authority the servant is held out as possessing or of the position in which he is placed as a representative of his master (see Lloyd v Grace Smith & Co [1912] AC 716; Uxbridge Permanent Building Society v Pickard [1939] 2 KB 248".
At 381-2 Dixon J said that in truth the act of the barmaid was:
"an act of passion and resentment done neither in furtherance of the master's interests nor under his express or implied authority nor as an incident to or in consequence of anything the barmaid was employed to do. It was a spontaneous act of retributive justice. The occasion for administering it and the form it took may have arisen from the fact that she was a barmaid but retribution was not within the course of employment as a barmaid."
In Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 at 721 Gleeson CJ, with whom Mahoney JA and Campbell J agreed, adopted as the relevant distinction for determining whether responsibility for a tortious act, or in that case vicarious criminal responsibility, attached to an employer, the distinction "between a mode, albeit improper, of doing that which the employee is employed to do and conduct which is outside the scope of the employee's employment; compare Canadian Pacific Railway Co v Lockhart [1942] AC 591 and Deatons v Flew". In Commonwealth of Australia v Connell (1986) 5 NSWLR 218 at 221 Glass JA, with whose judgment Samuels and Priestley JJA agreed, said:
"I would conclude that conduct by an apprentice sailor is within the scope of his service or duty or authority if it is authorised expressly or impliedly or is incidental to what he is authorised to do even though it may be performed in an unauthorised way. If, however, it is not authorised expressly or impliedly and is not so connected with authorised conduct as to be an improper mode of performing it, it is an independent unauthorised act and is outside the scope of his service."
37 In my opinion the Sergeant's conduct in the present case was no more than an unauthorised mode of performing an authorised role, that of directing and supervising Mr Jeffery in the performance of his work. It was not a series of independent unauthorised acts outside the scope of his service.
38 The State must be vicariously liable for those acts. In my opinion this submission also fails.
39 I should add that liability for Sergeant Spiteri's conduct carries with it liability to compensate Mr Jeffery for injury and loss which should reasonably have been foreseen by the sergeant as a consequence of that conduct. The type of abuse to which the sergeant subjected the plaintiff would, in my view, clearly carry with it the possibility of psychological injury. Such harm was well within the area of foreseeable risk (Mt. Isa Mines Limited v Pusey (1971) 125 CLR 383).
40 The third submission is that the Police Service (and hence the State) could not reasonably have foreseen that Sergeant Spiteri, its employee, would behave in such a way to Mr Jeffery as to cause him psychological injury. It was contended that there was nothing in the evidence to indicate that those responsible for appointing the Sergeant to his position in the unit should have been aware that he might behave in the way that he did towards the plaintiff or that there was anything which might reasonably produce suspicion that the Sergeant was in fact behaving in such a way. There was, indeed, no evidence pointing to any prior knowledge on the part of any relevant superior officers in the Police Service that the Sergeant had previously behaved in such a way or given any indication that he might do so. However, his Honour, as already indicated, found the Police Service liable for failing to act on suspicions as to the Sergeant's conduct and in failing to supervise the Sergeant and in failing to prevent a working environment in which psychological and/or verbal harassment and abuse existed.
41 It is clear that his Honour based these findings upon inference that the Police Service must necessarily have been aware of the sergeant's behaviour towards the plaintiff, irrespective of any prior knowledge that he might be prone to behave in such a way. The sergeant was in charge of the unit and the other police officer, Sergeant Gerrie was second in charge. There existed an established system of complaints within the Police Service, whereby behaviour of the type engaged in by Sergeant Spiteri should have been reported. The evidence indicated that such behaviour would have been regarded as quite unacceptable. Sergeant Gerrie was witness to at least two significant occasions of harassment, one of a particularly cruel kind, by the Sergeant of Mr Jeffery. He denied being a witness to any other incidents. In this regard, it would appear, that his Honour formed the view that there would have been more than the two incidents observed by Sergeant Gerrie, although he denied that this was so. It must be noted, of course, that the plaintiff's case did not focus upon any allegedly negligent failure, for which the Police Service would be vicariously liable, of Sergeant Gerrie to fulfil his duty to report Sergeant Spiteri's conduct. That was not a case sought to be made. His Honour, however, seems to have drawn a broad inference that there would have been sufficient awareness of what was going on in the unit, reasonably to raise suspicions in superior officers that a situation existed, which would warrant investigation and subsequent correction. Extensive submissions both written and oral have been presented to the Court on this topic. In view of my opinion that the State is clearly vicariously liable for the sergeant's conduct, I do not find it strictly necessary to reach a decision in respect of this part of his Honour's judgment. I am, however, of the view that this area of decision involved so many questions of fact dependent upon his Honour's view of the reliability of witnesses, that it would not be proper to interfere with the decision that he has reached. Accordingly, in my view, this submission should also be rejected.
42 The State's final submission is that it was the duty of the PCYC to set up and maintain a safe system of work for the plaintiff and that it was in breach of that duty; the consequence being either that the State owed no duty to the plaintiff or that the PCYC was in breach of its own duty and, consequently, should be required to contribute to the plaintiff's award of damages.
43 The first of these contentions would, it seems, require a finding that Sergeant Spiteri was not, relevantly, employed by the Police Service in his activities in the unit, but was pro hac vice employed by the PCYC. I am satisfied that this submission cannot be maintained upon the evidence. At all times the Sergeant was acting in his employment as a policeman by the Police Service.
44 The second contention overlapped with the PCYC's submission that, in the circumstances, it had no duty of care towards the plaintiff or that, if it did, no breach of that duty was established. In this context, of course, Mr Jeffery also asserts that the PCYC had a relevant duty of care to him and, in the circumstances, had breached that duty. It is convenient to consider these contentions together.
45 Although statements made by his Honour in his judgment, which have been referred to already, might carry the suggestion that his Honour made a finding that Mr Jeffery, pro hac vice, was an employee of the Police Service in the performance of his duties in the unit, I am satisfied that a reading of the whole of his Honour's judgment indicates that, although he found that the Sergeant had the supervision and control of the plaintiff's work in the unit, the plaintiff nevertheless remained an employee of the PCYC and subject to its overall care and control. His contract of employment was with the PCYC and he was paid by that organisation.
46 I am satisfied, therefore, that the State (through the Police Service) did not owe to the plaintiff an employer's duty of care, although it was liable, vicariously, for the Sergeant's negligent behaviour towards the plaintiff. The plaintiff, in the circumstances, continued to be owed the employer's non-delegable duty of care by the PCYC, whilst performing his role in the unit.
47 His Honour accepted the existence of this duty of care but held that no breach had been established. He found this to be so in the "unique" situation that prevailed in the unit and its operation.
48 It was a small unit of a specialised kind. Both the officer-in-charge and the second in command were police officers. The plaintiff and the other civilian member, Mr Hardy, were at the same level of seniority. The overall command of the PCYC was vested in a police superintendent who wore "two hats" and who, it would appear, was remote from the day to day operations of the unit. Other senior members of the PCYC, who were civilians, were not involved, in any way, in the operations of the unit and were located in offices at a distance from it. In all these circumstances, it, obviously, became a significant question in the case as to what was required of the PCYC to discharge its obligation to the plaintiff to supply him with a reasonably safe working environment. When this question achieved some focus in the case it became an issue as to whether the PCYC should have provided the plaintiff with an independent mechanism or structure which he could utilise for the purpose of making complaints as to untoward behaviour towards him in the workplace.
49 This question had to be considered in the context that the unit was predominantly a police oriented and controlled operation and that there was, in existence, a fully established procedure within the Police Service for the making of such complaints. Furthermore, Mr Jeffery ultimately utilised this very procedure. It is clear that he was, at all times, aware of its existence, as was Mr Hardy who had, himself, been a police officer. Moreover, it was the appropriate mechanism to utilise for making complaints against the police. The civilian administration of the PCYC had no power to discipline a police officer such as Sergeant Spiteri.
50 There was, therefore, a significant question whether, in the circumstances of the existence of the formal police apparatus of complaint, there was an obligation imposed upon the PCYC to set up, for the benefit of civilians employed in the unit, a corresponding mechanism.
51 As I read his judgment, his Honour did not find it necessary to decide this question because he was satisfied that even if such a procedure had been set up, the plaintiff, during the period in which Sergeant Spiteri remained in the unit, would not have utilised it.
52 The evidence in this area was sparse. There was no evidence as to the nature of the complaint mechanism which might have been put in place in fulfilment of the duty of care of the PCYC to the plaintiff. In these circumstances a question necessarily arose as to whether the plaintiff had discharged an onus of proof. Was it a matter of common knowledge that anti-harassment policies and corresponding complaint mechanisms existed and could be utilised, or was it necessary that evidence be given, on behalf of the plaintiff, that such systems existed and that an appropriate mechanism could have been instituted by the PCYC which would have been of assistance to the plaintiff? This question was not, as I understand it, decided by his Honour. He found it unnecessary to do so.
53 Was his Honour in error? I have come to the conclusion that he was not. If such a complaint system were in existence during the period when Sergeant Spiteri was harassing the plaintiff, it would only have availed him if he had had recourse to it. He did not avail himself of the existing police procedures in the relevant period. Would he have sought help from a PCYC civilian mechanism if it were in place? He gave no evidence that he would have done so. It is submitted by the appellant, that the very existence of such a complaint mechanism would have encouraged him to use it to his advantage. His Honour was not prepared to draw this inference. He declined to do so in circumstances where the evidence established that the plaintiff had point blank refused to permit Mr Hardy to make a complaint on his behalf, saying that he would deny that there was any cause for complaint, should Mr Hardy make it. He was not prepared to make a complaint himself because he was in fear of the Sergeant.
54 I am not prepared to find that his Honour was in error in reaching this conclusion. He had, of course, the usual advantage of seeing and hearing the witnesses involved. He was quite entitled, in my view, on the probabilities, to find that the plaintiff would not have made a complaint even if the PCYC had put in place a complaint mechanism.
55 In these circumstances, in my opinion, the appellant's appeal against each respondent should be dismissed with costs.
56 There remains for consideration the cross-appeal brought by the plaintiff on the question of damages. It is submitted that these were inadequate.
57 It is necessary to refer briefly to a factual issue which was the subject of some discussion in the appeal. Reference has already been made to the fact that, after the departure of Sergeant Spiteri, there were some incidents which occasioned the plaintiff considerable concern. His Honour made no finding that Sergeant Spiteri was responsible for these incidents. They had a marked effect upon the plaintiff's emotional condition. It was submitted, accordingly, on behalf of the appellant, that this aspect of Mr Jeffery's injuries could not be the responsibility of the appellant. However, his Honour was satisfied, on the medical evidence, that the Sergeant's behaviour prior to his departure had had a deleterious effect upon the ability of Mr Jeffery to cope emotionally with incidents of such a kind, with the result that their effect upon him was causally connected with the Sergeant's prior tortious behaviour. I can see no error in this approach.
58 It was submitted on behalf of Mr Jeffery that his Honour's award of damages was manifestly inadequate, in relation to the amount allowed for general damages and for future economic loss.
59 This was an unusual case and, quite obviously, presented difficulties in the assessment of damages. Evaluation of the plaintiff and his general motivation was a significant factor in determining the extent of any ongoing psychological damage resulting from the workplace harassment. His Honour obviously sought assistance from the medical reports and oral testimony of the doctors who had treated and examined the plaintiff for the purpose of the litigation. It is clear that his Honour formed the view that the plaintiff was well motivated and had a positive outlook on his problems. Although he was having difficulties with employment, his Honour formed the view that these were not insuperable and that the plaintiff's comparatively young age and his desire to overcome his problems would stand him in good stead. It was a matter for the trial judge to form as clear a view as possible, in an unusual and somewhat confusing case, of what the plaintiff's past pain and suffering had been and of what the future held.
60 It is possible that the figure of $35,000 given for general damages, together with an allowance for interest is somewhat low. However, I am not able to say that it is so low as to indicate a wholly erroneous estimate of this aspect of the plaintiff's damages.
61 As to future economic loss, it is clear that his Honour has approached this aspect of the assessment on the basis of providing what has been called a "cushion" or "buffer" for the plaintiff. He has not accepted submissions that the plaintiff's future earning capacity has been permanently damaged. Again, it is possible that the amount allowed is a fairly low estimate. However, his Honour, in his lengthy judgment has exposed his thinking in relation to the medical evidence and his view of the plaintiff's prospects. I cannot detect any error in his approach. In the circumstances, I am satisfied that it was within the ambit of a proper exercise of judicial discretion for his Honour to choose such a "buffer" figure. It could have been higher, but I am not persuaded that an appellable error has been demonstrated.
62 Accordingly, in my opinion, his Honour's award of damages should not be disturbed.
63 I would propose the following orders:-