THE STATE OF WESTERN AUSTRALIA -v- CUNNINGHAM [No 3] [2018] WASCA 207 (23 November 2018)

THE STATE OF WESTERN AUSTRALIA -v- CUNNINGHAM [No 3] [2018] WASCA 207 (23 November 2018) - WASCA 2018 case summary — Zoe

[68]

On 2 November 2008, just prior to 1.00 am, Dr Cunningham and Ms Atoms were walking back from Little Creatures Brewery, with Ms Atoms' friend, to where they had parked their bicycles in order to go home. On their way, they noticed three young people (two men and one woman) sitting on the low wall of a garden bed which ran along the outside of the Esplanade Hotel in Essex Street.[8]
Dr Cunningham and Ms Atoms observed one of the men fall backwards into the bushes in the garden bed. The other man went to help him but was either pulled or fell into the garden bed himself. The first man got out, but the second remained in the garden bed.[9]
Despite being strangers, Dr Cunningham and Ms Atoms stopped to help the group of young people. Ms Atoms initially stood on the footpath giving directions. Dr Cunningham, with the assistance of another person who arrived on the scene, tried to pull the man out of the garden bed. Ms Atoms assisted by grabbing his legs. Dr Cunningham, however, was then pushed into the garden bed by another male who subsequently went into the garden bed himself. At this time, Ms Atoms moved back to the footpath with her friend and stood there watching.[10]
Officers Traynor and Clark then arrived on the scene. Officer Traynor spoke to Ms Atoms. Officer Clark, after having attended to the other people at the scene, joined Ms Atoms and Officer Traynor.[11]
There was a dispute before the primary judge about what was discussed or said between Ms Atoms and the two police officers. It was alleged against Ms Atoms that she said, 'Haven't you got anything better to f... do. Go and arrest some proper criminals [sic]'.[12] It was alleged that these words, and the way they were said, constituted disorderly behaviour. Ms Atoms denied that she swore or said these words.[13]
The judge found that Ms Atoms did not use these words at the scene.[14] Rather, the judge found that Officer Traynor accused Ms Atoms of actually having been in the bushes. He first mentioned that she would have to pay for damage to the bushes and then told her that he had been watching her jump in and out of the bushes. Ms Atoms spoke up for herself and explained to Officer Traynor that she had been stopping to help and had not been in the bushes. She was not angry or aggressive when she spoke to Officer Traynor. She was calm and composed. Officer Traynor then said something to Ms Atoms about having to get out of Fremantle. Ms Atoms responded by telling Officer Traynor that she lived in Fremantle and did not understand. At this stage, the two officers had in mind to issue Ms Atoms a move on notice, motivated by the fact that she had spoken up and asserted her innocence, although they did not ask for her name and address to do so.[15]

[155]

The State says, in effect, that on its proper construction, the effect of s 137(5) of the Police Act is that the State is only 'answerable for damage caused by' torts committed by police officers, without malice or corruption, in the performance of their functions as a member of the Police Force.[92] Further, while the State accepts that itself, Officer Traynor, Officer Clark and Mr Caldwell are several and concurrent tortfeasors, it says that the general principle of solidary liability must give way to s 137(5) of the Police Act.[93] That is, s 137(5) operates to make the State liable only for the proportion of damage caused by those acts done without corruption or malice. As a result, where police officers have acted with malice, s 137(5) requires that damage caused by acts done with malice be apportioned from damage caused by acts done without malice. It says a separate judgment should be given against the State in the apportioned sum.[94]
The State relied on the case of Watkins v State of Victoria[95] in support of its contention that s 137 of the Police Act overrides the general principle of solidary liability. The State's submissions on the meaning of 'liable' in s 137(5) of the Police Act are set out in detail in [127] below.
The State says that the primary judge made findings of fact that Officer Traynor, Officer Clark and Mr Caldwell acted with malice as follows:[96]
1. When Officer Traynor grabbed Ms Atoms.[97]
2. When Officer Traynor and Officer Clark took hold of Dr Cunningham.[98]
3. When Mr Caldwell tasered each of Dr Cunningham and Ms Atoms.[99]
4. When Officer Clark pushed Ms Atoms.[100]
5. When Officer Clark launched prosecution of the criminal charges against Dr Cunningham and Ms Atoms 'on obviously insufficient material'.[101]
In relation to grounds 1 - 6 generally, the State says that her Honour erred in failing to apply or properly apply s 137 of the Police Act on its proper construction, and in failing thereby to give separate judgment against the State for apportioned damages caused by the torts of Officer Traynor, Officer Clark and Mr Caldwell which were done without malice.[102]
In particular, in relation to the judge's findings that the State was liable for the tort of false imprisonment (grounds 1(b), 2(c) and 4(b)), the State says that it cannot be made liable for damages for false imprisonment because the false imprisonment itself was a tort that 'results from' the torts committed by Officers Traynor and Clark with malice.[103]
In relation to the finding of battery constituted by Officer Clark pushing away Ms Atoms (ground 5(b)), the State alleges that the judge found, in effect, that Officer Clark acted with malice throughout his dealings with Ms Atoms, and that this must include when he pushed Ms Atoms away. Accordingly, it is said, the State cannot be held liable for the damages arising from that malicious act.[104]
In respect of ground 7, the State says that if the court finds the judge erred in relation to any of the previous grounds, it follows that her Honour also erred in law in holding the State jointly and severally liable with Officer Traynor, Officer Clark and Mr Caldwell for Dr Cunningham's and Ms Atoms' costs of the action.[105] Reference is also made to O 66 r 2(e) of the Rules of the Supreme Court 1971 (WA).[106]

[169]

The primary judge made, in effect, the following findings in relation to the police officers' conduct with respect to Ms Atoms:
1. The conduct of Officer Traynor in grabbing Ms Atoms on the wrist on each of the first and second occasions constituted a battery, was done with malice, and constituted misfeasance in public office.[126]
2. The conduct of Officer Clark in pushing her away constituted battery, but without malice,[127] for which the State was found liable.[128]
3. The conduct of unknown police officers handcuffing and handling her after she had been tasered constituted battery. Her Honour did not find malice in that regard,[129] and found the State liable for this.[130]
4. The conduct by Officer Traynor in grabbing Ms Atoms the second time also constituted detaining her and she was not free to go.[131] Her detention was unlawful and constituted false imprisonment (1) from the time she was grabbed the second time by Officer Traynor until he let her go when he turned to deal with Dr Cunningham, and (2) after she was tasered until she was released on bail.[132] There is no express finding that the detention throughout the whole of the two periods was done with malice. This was although the first period of false imprisonment commenced with the malicious battery by the second grabbing of her arm (see point 1 above), and the second period of false imprisonment commenced with her arrest[133] after the (malicious) tasering, with unknown police officers handcuffing and handling her and putting her into the police van until she was released on bail.[134] There was no finding of malice against the unknown police officers in relation to the second period of false imprisonment.
5. The State was liable for the false imprisonment.[135]
6. The conduct of Officer Traynor in grabbing her, and the conduct of Mr Caldwell in tasering her, involved malice and constituted misfeasance in public office.[136]
7. The conduct by Officer Clark in prosecuting her constituted malicious prosecution.[137]
The conduct of Officer Clark in pushing Ms Atoms away (see point 2 in the preceding paragraph) occurred after she was released by Officer Traynor and before she was tasered.[138] The State contended that her Honour found this battery as having been done with malice. The State relies in particular on [784] and [788] of the primary decision. The judge observed in [784] that (1) Ms Atoms 'could have easily been kept at arm's length', and (2) that Officer Clark 'demonstrated a similar disregard for the plaintiffs'.[139] In her reasons at [788], the judge also said that each of the defendants 'when dealing with the plaintiffs, acted with malice'.
The first of the two observations in [784] referred to above is not inconsistent with the finding of battery without malice. The other observations referred to in [784] and [788] are very general observations, and are inconsistent with her Honour's specific findings with respect to Officer Clark's conduct in pushing Ms Atoms away. Those generalised observations are, however, explicable in the sense that they may apply to the torts committed by Officer Clark against Dr Cunningham and to the malicious prosecution of both Ms Atoms and Dr Cunningham by Officer Clark.
The judge's reasons must be read and construed as a whole. The paragraphs of her Honour's reasons which make it clear that her Honour did not find malice in relation to this battery are footnoted in respect of point 2 of [85] above. When the judgment is read as a whole, the paragraphs relied on by the State do not constitute a finding that the pushing of Ms Atoms was done with malice. The effect of the reasons for judgment, read as a whole on this topic, indicate that the judge found that Officer Clark's conduct in pushing Ms Atoms away was not done with malice.
In relation to the false imprisonment of Ms Atoms (see points 4 and 5 of [85] above), the effect of the judge's findings, when her Honour's reasons are read as a whole, is that:
1. The first period of false imprisonment commenced with the malicious battery by Officer Traynor grabbing her, and she remained under the restraint of the grab until she was released, with the consequence that throughout this period of detention, Officer Traynor's restraint involved malice.
2. The second period of false imprisonment commenced with the restraint imposed by her arrest by the unknown police officers, that was done without malice. Her continued detention pursuant to the arrest, until she was released from Fremantle police station, also occurred without malice.

[177]

Mr Caldwell's conduct in tasering Dr Cunningham was done with malice and constituted misfeasance of public office.[151]
The handling of Dr Cunningham by the unknown police officers following the tasering, until he was placed in the police van, constituted battery. Her Honour does not expressly find malice,[152] and found the State liable for this battery.[153]
From the moment Dr Cunningham was first grabbed by Officer Clark until he was released from the Fremantle police station, he was falsely imprisoned.[154] Her Honour did not expressly find malice in that regard, and found the State liable for this.[155]
The prosecution by Officer Clark involved malice and constituted malicious prosecution.[156]
In relation to the false imprisonment of Dr Cunningham (see point 4 in the preceding paragraph), although her Honour did not expressly find malice, she noted that the false imprisonment included all of the batteries involved in the wrongful arrest and the tasering (all of which were malicious), and the handling after the tasering (for which there was no finding of malice).[157] In light of the finding that Dr Cunningham was arrested with malice and the detention resulting from the arrest continued until he was released from Fremantle police station, it might be inferred from the reasons, and the State contends, that the judge found, in effect, that the whole of Dr Cunningham's physical detention throughout that period was actuated by malice. On the other hand, Dr Cunningham contends that properly understood, there was, in substance, a finding of a second period of false imprisonment, starting with the non-malicious conduct of the unknown police officers in bundling Dr Cunningham into the police van to be taken to the police station. In support of that submission, Dr Cunningham refers to the facts that he did not plead malice, or seek exemplary damages in that regard, and that the State had never pleaded or alleged malice in that regard. This question turns, ultimately, on the proper construction of the judge's reasons read as a whole. On balance, it seems to us that whilst the judge found that there was false imprisonment covering the whole of the period from when Dr Cunningham was first arrested, the conduct of the unknown police officers in handling him and bundling him into the van for him to be taken to the police station constituted a separate act of restraint, the effect of which continued whilst he remained in the van and was taken to the police station. As no party alleged that this restraint was done with malice, the better construction of the reasons is that this period of false imprisonment was not affected by malice.

[201]

Under the common law in England, there developed a collection of rules, compendiously described in their effect as Crown immunity, which reflected the concepts that the courts of justice were those of the Sovereign, that the Sovereign could not be impleaded in his or her own courts, and, in relation to claims in tort, that 'the King can do no wrong'.[162]
Even in England, however, before the reforms made by the Crown Proceedings Act 1947 (UK), Crown immunity was not absolute. The petition of right was available, which was said to give effect to the principle that the subject should receive a redress from the Crown in those cases where redress would be available from a fellow subject.[163] The petition of right applied to claims in contract, but it did not, however, apply to a tortious act done by the Crown, or by a public servant by the authority of the Crown.[164] The exclusion of tort claims from the petition of right effectively 'immunised the Crown from any liability in tort, because no other remedy was available for the purpose'.[165]
Nevertheless, a servant of the Crown was responsible at common law for a tortious act done to a fellow subject, although done by the authority of the Crown, and, to that tortfeasor, the immunity of the Crown afforded no defence. Further, in most instances, the action against the officer or servant of the Crown would have the same effect as a petition of right. That is because, in a proper case, the Crown would defend its officer and become responsible for any damages awarded.[166]
In Australia, before federation, all the Australian colonies, save Victoria, had legislation (which, for convenience, may be described as 'Crown suits legislation') establishing procedures whereby claims in tort, as well as in contract, might be brought against the colonial governments.[167] In Western Australia, the relevant statute was the Crown Suits Act 1898 (WA).[168] That statute was the predecessor to the current Crown Suits Act 1947 (WA). Section 5 of the latter statute provides, in effect, that, subject to that Act, the Crown (defined to mean the Crown in right of the government of Western Australia) may sue and be sued in any court in the same manner as a subject. In Bell v The State of Western Australia,[169] McLure J said, by reference to Mewett, that at common law the Crown was always liable in tort but enjoyed an immunity from liability, and that the Crown Suits Act had removed the immunity with the effect that any pre-existing liability could be enforced.
In relation to torts, the removal of Crown immunity by legislation meant that, in general terms, whenever the relation of the Crown to its employees was such that in a similar case, an individual would be liable for the acts of his or her employee, the Crown would be liable for the acts of its employees.[170] The liability was vicarious and not direct.[171]
The removal of Crown immunity for vicarious liability in this regard did not, however, make the Crown liable for the tortious conduct of police officers in the performance, or supposed performance, of the powers and duties imposed on them by law. That was because under the common law the Crown had no vicarious liability in any event in those circumstances. Rather, under the common law, public officers whom the law charged with a discretion and responsibility in the execution of an independent legal duty were alone responsible for tortious acts which they committed in the course of their office, and for such acts, the government, or body whom they served or which appointed them, incurred no vicarious liability.[172]

[220]

For present purposes, the following observations may be made. First, s 137(3) provides that an 'action does not lie' in the circumstances referred to. It is directed principally to the protection of police officers acting without corruption or malice. Section 137(3) operates, in general terms, (not unlike its predecessor, s 57A) positively to provide immunity from 'action' in tort, to police officers performing or purporting to perform their functions for anything done without corruption or malice. When s 137(3) is engaged, it confers immunity from action.[207] It alters the position at common law,[208] insofar as and to the extent that under the common law, an action could lie against a police officer in tort even where the police officer has acted without malice or corruption. It nevertheless leaves the common law to apply to torts where police officers in the performance, or purported performance, of their powers and duties, act with corruption or malice. The liability of police officers in such circumstances could include liability for both aggravated and exemplary damages.
Section 137(5) is directed to the protection of members of the public who suffer loss or damage consequent upon the tortious conduct of police officers insofar as it makes the Crown 'liable for a tort that results from ... anything done by [the police officers] without corruption or malice' whilst performing or purporting to perform their functions. Section 137(5), in effect, gives the victims of tort redress against the State in circumstances where the police officer has acted without malice or corruption. The provision imposes a positive liability. It is to be understood in the context of the operation of s 137(3), referred to above. Its principal purpose is, evidently, to abrogate the common law rule that the Crown is immune from liability for the tortious conduct of police officers in the performance, or supposed performance, of the powers and duties imposed on them by law, insofar as the common law rule would apply to circumstances where the police officers have acted without corruption or malice.[209]
On the other hand, insofar as the tortious conduct of the police officer is done with corruption or malice, the State has no liability under s 137(5). The common law rule,[210] which has the effect of making the police officer, not the State, liable in those circumstances, remains unaffected.
Section 137(5) is a beneficial provision and is to be given the fullest relief which the fair meaning of its language will allow.[211]
The words 'result from' in this context have their ordinary meaning and denote to 'arise or proceed as a consequence from'.[212] They invite attention to the question of whether there is a tort, arising or proceeding as a consequence from the acts of the police officers done without corruption or malice whilst performing or purportedly performing their functions. If there is, s 137(5) imposes a liability on the Crown. The word 'liability' evidently means legal liability. The Crown's legal liability for a tort that results from anything done by the police officer without corruption or malice includes the liability to pay damages, subject to s 137(6).
Section 137(6) provides that the Crown's liability under s 137(5) 'does not extend to exemplary or punitive damages'. When s 137(5) and s 137(6) are read together and in the context of s 137 as a whole, the Crown's liability under s 137(5), where it applies, 'extends to' compensatory damages. Section 137(5) and s 137(6) indicate that the public purse should be open for all compensatory damages (including aggravated damages) for tortious acts of police officers done without corruption or malice, but not for damages designed, amongst other things, to punish, deter or provide retribution in a manner going beyond compensation to the victim of the tort.
By s 138(1), additional protection is given to members of the public who suffer loss or damage consequent upon the tortious conduct of police officers by providing for the prospect of some financial redress against the State to a plaintiff (claimant) who, in an action in tort, 'is awarded damages against a [police officer] for anything done by [the police officer] maliciously or corruptly' whilst performing, or purporting to perform, his or her functions.
Under s 138(2), the claimant may request the Treasurer of the State to pay 'the damages awarded to the claimant, other than exemplary or punitive damages', and any costs ordered to be paid to the claimant. By s 138(3), the Treasurer may pay the claimant all or some of 'the damages' and costs if satisfied, in effect, that the claimant is unlikely to recover them from the defendant, and there is no relationship or connection between the claimant and the defendant, or a close relative to the defendant, that is likely to result in a benefit or advantage to the defendant if the claimant were paid the damages and costs by the State.
Section 138 indicates that where compensatory damages (including, but not limited to, aggravated damages that are 'truly compensatory'[213]) have been awarded against a police officer for anything maliciously or corruptly done by the police officer whilst performing or purporting to perform his or her functions, the State may, in effect, make an ex gratia payment of some or all of the damages so ordered.
When s 137 and s 138 are read together, the object of s 138 appears, at least principally, to provide the prospect of pecuniary relief to a plaintiff in circumstances where the police officer alone is liable at common law, and the plaintiff was awarded damages against the police officer in an action in tort, subject to the qualification that the State is never to pay exemplary or punitive damages. That is consistent with the intention, apparent in s 137(6) and s 138(2), to exclude a claim on the public purse for exemplary or punitive damages.[214]
Section 138 has no operation where there is a damages award (including aggravated damages) in an action in tort resulting from anything done by a police officer without corruption or malice.[215] Where a tort results from anything done by a police officer without corruption or malice, the State is liable for the tort under s 137(5) but its liability in damages extends only to damages (including aggravated damages) which are compensatory in nature. Whilst it is true that in many cases a finding of malice will mean that both aggravated and exemplary damages may be awarded, as noted earlier, an award of aggravated damages does not require the finding of malice.[216]

[221]

Nothing arises from the above analysis to suggest that s 137(5) requires an apportionment in the manner suggested by the State. As noted earlier, however, the State relied on the case of Watkins in support of its contention that s 137 of the Police Act overrides the general principle of solidary liability. Before making some further observations on the operation of s 137, and its particular application in this case, it is convenient to set out in some detail the decision in that case. Watkins concerned, amongst other things, the application of s 123(1) of the Police Regulation Act 1958 (Vic)[217] (Police Regulation Act) to a claim by the plaintiff that he was assaulted in connection with the taking of his fingerprints. There were five assaults. The first assault, by F and L, was when the plaintiff was restrained and an attempt was made to move him to the fingerprinting counter.[218] The second assault involved another police officer, K, hitting the plaintiff in the face as hard as he could using the butt of his palm.[219] The third involved F, L and K forcing the plaintiff to the ground, face first, and holding him there.[220] The fourth concerned F, L and K propelling him to the back of the room and pushing him hard against the wall, face first.[221] The fifth assault was when the plaintiff was forcefully held around his neck by the police officers.[222]
The police officers' defences of self-defence and the defence of others failed because, on the evidence, the police officers did not believe, or did not believe upon reasonable grounds, that it was necessary in their self-defence or the defence of others to do what they did.[223] Further, the second and third assaults were not acts reasonably done in good faith in the course of the police officers' duties within the meaning of s 123(1) of the Police Regulation Act. Accordingly, K was not entitled to the immunity conferred by s 123(1) in respect of the second assault and F, L and K were not entitled to immunity in respect of the third assault, and the State of Victoria was not liable for either of those assaults under s 123(2).[224]
The court noted that certain concessions had been made by the State. The court said that the State:[225]
1. Conceded that 'any liability' which L and F had in respect of the first, second, third, fourth and fifth assaults should be 'transferred' to the State under s 123(2) of the Police Regulation Act.
2. Conceded that 'any liability' that K had in respect of the fourth and the fifth assaults should also be 'transferred' under s 123(2) of the Police Regulation Act.
3. Did not accept any 'transfer' of K's liability in respect of the second or third assaults.
The plaintiff suffered no physical injury from the first assault and was awarded $3,000 for the natural feelings of affront suffered by the forcible manhandling.[226]
In relation to the second, third, fourth and fifth assaults, the court awarded compensatory damages totalling $95,000, comprising $15,000 for pecuniary loss and $80,000 for general damages (pain and suffering and loss of enjoyment of life).[227]
The court then said:[228]

[226]

The question of whether Watkins provides any material assistance for present purposes is referred to in [159] below. Returning, now, to s 137 of the Police Act, the operation of s 137(3) and s 137(5) may, in general terms, be illustrated by reference to the torts in this case - battery, false imprisonment, misfeasance in public office, and malicious prosecution. The observations below are general in nature, and the application of s 137 will, in each case, depend upon the facts and circumstances of the case. Also, the following is not intended to be an exhaustive statement of the law with respect to those torts, but rather a broad outline which is sufficient for the purposes of the present discussion.
If a police officer, in performing, or purporting to perform, his or her functions, makes physical contact with a plaintiff of a kind capable of constituting a battery,[232] and the police officer does not prove lawful justification, then the tort of battery will be established.
The action for false imprisonment protects the interest in freedom from physical restraint and coercion against the wrong of intentionally and without lawful justification subjecting another to a total restraint of movement by either causing that person's confinement or preventing that person from leaving the place in which he or she is. The elements of the tort require proof by the plaintiff of a restraint imposed by the defendant which amounts to imprisonment. Upon proof of such imprisonment, the defendant, to escape liability, needs to establish legal justification. The restraint must be upon a person's liberty to come and go, and must be against his or her will. The factual essence of the cause of action is the placing of a total restraint on the plaintiff's movement.[233] Although false imprisonment is a species of trespass to the person,[234] it need not involve the use of actual force or direct physical contact. Any restraint upon a person's will so great as to induce the plaintiff to submit, may be an arrest 'without imposition of hands'. In this species of trespass, words such as 'I arrest you' are sufficient.[235] An identification of the period of false imprisonment is necessary to determine the nature and extent of the wrong suffered by the plaintiff, and the damage sustained by reason of the false imprisonment.[236]
Unlike in relation to the tort of negligence, actual damage or injury is not a necessary element in the torts of battery and false imprisonment - where violation of the person's dignitary interest is sufficient to warrant redress.[237]
The action for misfeasance in public office aims to prevent public officials from maliciously abusing their power.[238] In Mengel, Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ accepted that the tort of misfeasance in public office is committed where damage is suffered as a result of an act done by a public officer, where the public officer knows the act is done beyond power and involves a foreseeable risk of harm.[239] Their Honours added that there was 'much to be said for the view that ... misfeasance in public office is not confined to actual knowledge but extends to the situation in which a public officer recklessly disregards the means of ascertaining the extent of his or her power'.[240] Brennan and Deane JJ said, in effect, that the mental element in the tort is satisfied where the public officer engages in the impugned conduct with the intention of inflicting injury, or with knowledge that there is no power to engage in that conduct and that it is calculated to produce injury, or where the public officer acts with reckless indifference as to the existence of power.[241]
The tort of malicious prosecution involves maliciously, and without reasonable and probable cause, instituting a groundless criminal prosecution. The distinction between malicious prosecution and false imprisonment lies in whether the restraint on the plaintiff's liberty is directly imposed by the defendant (acting either personally or by his or her agent), or whether there is interposed the exercise of an independent discretion. If the plaintiff has been wrongfully arrested and is taken before a magistrate who remands the plaintiff in custody, the proper remedy for the initial arrest is false imprisonment, but there is no liability for the period of confinement subsequent to the remand, unless it be for malicious prosecution.[242]
As malice is an ingredient of each of the torts of misfeasance in public office and malicious prosecution, the police officer will be liable under the common law[243] for those torts, and s 137(3) will not protect the police officer from an action in tort. The State will not be liable under s 137(5), or the common law, for the commission of those torts.
In relation to battery, if the police officer acts without malice or corruption, the State will be liable (s 137(5)), but no action will lie against the police officer (s 137(3)). On the other hand, if the police officer acts with malice or corruption, the police officer will be liable under the common law, and s 137(3) will not protect the police officer from an action in tort. The State will not be liable under s 137(5) or the common law.
Where the unlawful restraint involves the application of force, the initial act of restraint may be a battery, and the initial act of restraint and the continuation of the restraint may constitute the elements of the tort of false imprisonment. It is, at least theoretically, possible that a malicious act of battery may be committed at the start of, or in the course of, the restraint which is actionable for the tort of false imprisonment, without the whole of the restraint being malicious. That is because there may, eg, be no intention to cause harm to the plaintiff by the continuing restraint, and no knowledge or reckless indifference on the part of the officer that the restraint is beyond power. In that event, the police officer will be liable for the battery constituted by the initial, malicious, application of force under the common law and s 137(3) will not protect the police officer from an action in tort. The State will be liable for the ensuing and continuing non-malicious false imprisonment under s 137(5).
Where, however, the restraint on the plaintiff's liberty is imposed with malice, such as where the arrest itself is done with malice, and continues without change, the proper inference may be that the whole of the detention whilst under arrest is tainted by malice.
A judgment could not be entered against police officers, in respect of whom, by force of s 137(3), an action does not lie. Nor could a judgment be entered against the State if it were not liable under the common law and no liability arose under s 137(5).

[228]

The proper construction of s 137(3) and s 137(5) has been outlined in [128] - [138] above. There is nothing in s 137(3) and s 137(5), read in the context of the language and structure of s 137 as a whole, or in the context of s 137 and s 138 read together, or in the context of the Police Act as a whole, which reveals an intention by the legislature to alter the common law rule of solidary liability as it would otherwise apply to the liability of the State under s 137(5). Nor, when regard is had to the historical considerations referred to earlier, or the apparent mischief sought to be remedied by s 137, is there any reason to suppose that the legislature intended to introduce, without using the language of proportionality or apportionment, a regime for the apportionment of damages between, on the one hand, police officers who are liable under the common law who receive no protection under s 137(3), and the State whose liability arises under s 137(5).[244]
With regard to Watkins, it is true that the apportionment undertaken by the court in that case is not inconsistent with the approach contended for by the State in this appeal. However, ultimately, Watkins is of no assistance for present purposes. It deals with a different statute. The proper construction of the Victorian statute was not, apparently, in issue in that case, and the basis for undertaking the apportionment was not explained in the reasons of the court. The other cases referred to by the State are similarly of no assistance.
Nor do we accept the State's contention that s 137(5) on its proper construction, conveys the negative command that the State 'is not liable for a tort' that 'results from' anything done by a police officer with corruption or malice. There is no basis, in the statutory text, context or purpose, for reading a negative stipulation or meaning into the language of the positive liability provided for by s 137(5). That is because s 137(5) in effect creates a new statutory liability for the State which operates independently of the immunity at common law. In our view, s 137(5) means what it says - no more and no less.
In this case, in relation to Ms Atoms, there is no, or no successful, challenge to the findings that:
1. Each of the non-malicious batteries by Officer Clark and the unknown police officers was a cause of her back injury.
2. Each of the non-malicious batteries by Officer Clark and the unknown police officers and the non-malicious false imprisonment for the second period (after she was arrested) was a cause of her psychiatric injury.
The result is that the State is liable for all damages awarded as compensation[245] for her pecuniary[246] and non-pecuniary[247] losses arising from her back injury and her psychiatric injury. Insofar as the torts involving malice by the police officers were also causative of her injuries, the police officers are without the protection of s 137(3) and are liable to pay her compensatory damages as well as (in their case) exemplary damages. But their concurrent liability for the losses suffered by Ms Atoms does not alter or undermine the statutory imposition of liability on the State for the non-malicious tortious acts of the police officers.
In relation to Dr Cunningham, there is no, or no successful, challenge to the judge's findings that the non-malicious battery by the unknown police officers was a cause of his psychiatric injury. The above observations apply equally to Dr Cunningham. The State is liable for all damages awarded as compensation in respect of that injury. That conclusion is confirmed by, but not dependent upon, the further consideration that Dr Cunningham's false imprisonment after being bundled into the police van and taken to the police station was not done with malice.[248]
It follows that grounds 1 - 6 of the State's appeal in substance have no merit. As a consequence, ground 7 also has no merit.

[237]

The meaning of the word 'liable' in the context of a provision in workers' compensation legislation concerned with an employer's right of indemnity was considered in Tickle Industries Pty Ltd v Hann.[260] Chief Justice Barwick, with whom McTiernan J agreed, noted that the word 'liable' could mean able 'to be sued' but concluded that in the context in which it was used,[261] the word meant 'legally responsible, that is to say, it describes the person who by his act or omission caused the compensable injury and thus was legally responsible for it and for the payment of damages appropriate to it'.[262]
Returning to s 137(5)(a), the word 'liable', in the context in which it is used, is capable of meaning either 'able to be sued' or 'legally responsible' in the same sense as was discussed in Tickle Industries. The immediate statutory context supports the conclusion that it bears the latter meaning, for the following reasons.
First, in s 137(5)(a), the Crown is 'liable for a tort'. The Crown is not made liable for any 'conduct' of a police officer. Its responsibility is confined to legal responsibility for a 'tort'. That is a shorthand reference to the common law's category of civil causes of action based on legal 'wrongs' and which are known as torts. The phrase 'liable for a tort' is conclusory. That is, the conduct of a police officer will only constitute a tort once a Court finds that that conduct meets the legal criteria for one of the torts recognised by the law. That suggests that the word 'liable' means more than just 'able to be sued', and instead encompasses legal responsibility for conduct in fact found to constitute a tort.
Secondly, the phrase 'the Crown is liable for a tort' in s 137(5)(a) can be contrasted with the phrase 'an action in tort does not lie' in s 137(3). Had the Parliament intended that 'liable' in s 137(5)(a) meant only 'able to be sued', a similar phrase to that used in s 137(3), such as 'an action in tort lies against the Crown', could instead have been used. The use of the phrase 'is liable for a tort' suggests that s 137(5) was intended to do more than enabling the Crown to be sued.
Thirdly, s 137(6) refers to the 'Crown's liability under subsection (5)'. The word 'liability' also has a range of meanings, including 'the condition of being liable or answerable by law or equity', 'the condition of being liable or subject to something, apt or likely to do something' and 'that for which one is liable; esp the debts or pecuniary obligations of a person or company'.[263] In s 137(6), the word 'liability' clearly refers to an obligation to pay damages. The subsection is directed to the possibility that, by virtue of s 137(5), and as a result of an action in tort brought against the Crown, the Crown may be the subject of an order for the payment of damages to a plaintiff. Subsection 137(6) limits that aspect of the Crown's responsibility for the tort by making clear that the Crown's liability 'does not extend to exemplary or punitive damages'.
In my view, therefore, the word 'liable' is used in s 137(5)(a) of the Police Act to convey the meaning that the Crown is legally responsible for a tort committed by a police officer (which results from the conduct of the police officer in the circumstances described in s 137(5)(a)) and thus that the Crown is able to be sued for that tort, that its responsibility for that tort will be adjudged by the application of relevant common law principles and statutory provisions, and in the event that that action succeeds, that the Crown will be responsible for the payment of compensatory damages for any injury or loss suffered by a plaintiff for which the tortious conduct of the police officer was a material cause. In short, the word 'liable' in s 137(5) encompasses all of the features of legal responsibility for a tort - from susceptibility to an action for damages for a tort, through to an award of compensatory damages to a plaintiff, and recovery of those damages from the Crown.
Under s 137(5)(a), the Crown is not made liable for any and all torts committed by police officers. Rather, it is only liable for a tort 'that results from' anything done by the police officers without corruption or malice in the performance or purported performance of his or her functions as a police officer. The word 'result' means 'to proceed as a consequence from actions, circumstances or premises; to be the outcome'.[264] The phrase 'results from', like the phrase 'result of', indicates the need for a connection between the conduct of the police officer, and the outcome, which is the conclusion that a tort was committed.[265] In other words, the Crown will be liable for a certain legal outcome - the characterisation of conduct as constituting the commission of a tort - which is a consequence of the conduct of a police officer in performing his or her functions, provided that conduct did not involve corruption or malice.

[238]

As I have indicated, in my view, the phrase 'liable for a tort' in s 137(5)(a) conveys that the Crown's responsibility for the tortious conduct of a police officer, in the circumstances described in s 137(5)(a), will be determined in accordance with any relevant common law principles, and statutory provisions, concerning actions in tort.
The common law has developed principles for determining whether a plaintiff's damage was caused by one tortfeasor, or multiple tortfeasors, acting jointly or severally. Joint tortfeasors are responsible for the same wrongful act - the same tort - leading to the plaintiff's damage, whereas the independent tortious acts of different tortfeasors may combine to cause the same loss or damage suffered by a plaintiff.[266] In the latter case, to establish a defendant's liability for his or her loss or damage, the plaintiff need show only that a tortfeasor's tortious conduct was one cause of the plaintiff's loss or damage, in that it 'caused or materially contributed to' the plaintiff's injury or loss.[267]
Even though multiple tortfeasors may have caused the same damage suffered by a plaintiff, a defendant whose tortious conduct caused or materially contributed to the loss or damage suffered by a plaintiff will be liable to compensate the plaintiff for the whole of that loss or damage. That is known as the principle of solidary liability.[268]
One consequence of the principle of solidary liability is that a court will not apportion the compensatory damages awarded as between each tortfeasor, in order to reflect the extent of the defendant's responsibility for the plaintiff's damage or loss. (In Western Australia, this aspect of the principle of solidary liability has been legislatively displaced in some circumstances.[269] However, that legislation has no application in the circumstances of this case.)
The corollary is that a plaintiff can be compensated for all of his or her damage by an award against only one of several concurrent tortfeasors.[270] Historically, the common law position was that a defendant generally had no right to contribution from any other tortfeasor whose tortious conduct also caused the plaintiff's damage and loss. However, legislation has modified that principle, so that a tortfeasor may now recover contribution for the compensatory damages awarded to a plaintiff from any other tortfeasor who is, or would, if sued, have been liable, in respect of the same damage suffered by the plaintiff.[271] That legislation also permits a plaintiff to pursue more than one action for the damage caused to him or her by the tort or torts of multiple tortfeasors, provided that the damages awarded against each defendant do not exceed the total amount at which the plaintiff's compensatory damages were first assessed.[272] However, different tortfeasors may be subject to different awards of damages in circumstances where exemplary damages are awarded against some tortfeasors but not others.[273]
In the present case, s 137(6) and s 138(2) make clear that the Crown will not be required to pay any exemplary or punitive damages. That is undoubtedly because an award of exemplary or punitive damages is not made to compensate a plaintiff for the damage he or she has suffered, but to punish a defendant for conduct showing a conscious and contumelious disregard for the plaintiff's rights and to deter that defendant from committing similar conduct in the future.[274] The existence of those provisions necessitates that any award of exemplary or punitive damages must be the subject of an order against the individual police officer concerned. However, neither s 137(6) nor s 138(2) indicate that the principle of solidary liability, in so far as it concerns awards of compensatory damages, is excluded or modified in relation to the Crown's liability for a tort under s 137(5)(a).
Save to the extent that it is displaced by statute, the principle of solidary liability applies as part of the common law applicable to actions in tort.[275] In my view, nothing in the language of s 137 as a whole, or in s 137(5)(a) in particular, displaces the application of the principle of solidary liability in relation to actions brought against the Crown for torts resulting from the conduct of police officers.

[240]

The legislative history concerning the insertion of s 137 and s 138, in their present form, into the Police Act, supports the construction of s 137 set out above.
Prior to the enactment of s 137 and s 138 of the Police Act in their present form, s 138 of the Police Act incorporated section H of the Shortening Ordinance 1853 (16 Vict No 11),[276] which, in summary, provided that no action would lie against an officer of police, a policeman or a constable, for anything done in carrying the provisions of the Police Act into effect, unless there was 'direct proof of corruption or malice'. That immunity from suit was supplemented by s 53K of the Police Act, which provided that a police officer was not civilly liable for anything done or omitted to be done in good faith or in connection with the performance or purported performance of his or her functions under Part VA of the Police Act.[277]
Sections 137 and 138 were inserted into the Police Act by the Acts Amendment (Police Immunity) Bill 1999 (WA) (Bill). According to the speech given by the then Minister for Police on the second reading of the Bill, the Bill was directed to the following purposes. The Parliament sought to replace the existing legislative provisions, which were regarded as antiquated and unable to adequately protect police officers. Changes in statute and common law had given rise to questions which had arisen about the application of those provisions. The Minister's speech made clear that s 137 was intended to leave no doubt that police officers cannot be sued in tort for conduct in the performance of their functions, provided that they do not act with malice or corruptly. The Minister made this purpose clear, when he observed that the Bill would 'provide the protection necessary for police officers to carry out their lawful duties in the firm knowledge that they will not be held liable for the consequences of any of their lawful actions, unless they are acting in a corrupt or malicious manner.'[278]
In addition, the Minister for Police made clear that the Bill did 'not preclude an innocent third party from seeking compensation for any injury or loss arising from an action of a member of the Police Service'.[279] The Minister clearly regarded s 137 as achieving a similar outcome to 'vicarious liability legislation' which protected persons (such as public servants) paid by the State to provide services to the community, and who acted in good faith.[280] In this respect, s 137(5) confers a significant benefit on a third party who suffers damage or loss as a result of the tortious conduct of a police officer, which was not corrupt or engaged in with malice. While a police officer is immune from civil action for that tort (under s 137(3)), the Crown is made liable for the tort which results from that police officer's conduct. In that respect, s 137(5) constituted a significant departure from the common law position which had previously applied. At common law, the Crown is not vicariously liable for torts committed by police officers because they are charged with an independent legal duty in the execution of which they exercise a discretion.[281]
No protection from civil action is granted to a police officer who commits a tort as a result of conduct involving malice or corruption. However, in cases of that kind, s 138 is clearly directed to protecting the position of the plaintiff in the event that he or she is unlikely to be able to recover an award of damages from the police officer. In that case, the plaintiff may request that the Treasury pay that amount, and if the Treasury makes such a payment, it is then permitted to recover the damages as a debt from the police officer concerned.[282]
This legislative history confirms that s 137 should be regarded as a beneficial provision. It both protects police officers from civil actions in tort in certain circumstances, and permits plaintiffs to pursue civil actions against the Crown for torts committed by police officers without malice or corruption. Consequently, to the extent that there is any ambiguity in the meaning of s 137(5), it should, within the limits of the language used, be construed beneficially, and so as to give the fullest relief which the fair meaning of its language will allow.[283]
On the construction of s 137(5) which is advanced by the State (see [198] - [199] below), a court would be required to apportion the total damages awarded to a plaintiff by way of compensation between the Crown and any police officers sued personally in tort, and who are found to have caused the plaintiff's damage. That would have the result that the plaintiff would bear the risk that a police officer may not be able to meet any award of damages apportioned to him or her. While the plaintiff would be entitled to request the Treasury to pay those damages, s 138(3) does not confer an entitlement on a plaintiff to that payment. To my mind, that outcome undermines the beneficial purpose of s 137(5).
The construction of s 137(5) set out at [181] is consistent with the beneficial purpose of s 137(5). The Crown will be subject to an order for judgment in the full amount of any compensatory damages awarded to the plaintiff. The Crown will be entitled to seek a contribution from any other tortfeasor who caused the plaintiff's damage, but it will bear the risk that no such contribution may ultimately be paid.

[244]

I am unable to accept the State's contentions as to the meaning of s 137(5), for the following reasons.
First, the construction advanced by the State does not reflect the ordinary meaning of the words used, understood within the surrounding statutory context. The Crown is not made liable for 'damage,' it is made liable for a 'tort'. While the liability of a defendant for the 'damage' (that is, the injury or loss) suffered by a plaintiff, which was caused by the defendant's tortious conduct, is an aspect of a defendant's liability for a tort, there is nothing in s 137(5) to support the conclusion that the phrase 'liable for a tort' should be construed so narrowly.
Secondly, the import of the State's contentions is that s 137(5) excludes the application of the common law principle of solidary liability. Absent clear words or a strong basis for a contrary implication, legislation will be presumed not to alter common law doctrines.[289] There is nothing in the language used in s 137(5) to indicate, with sufficient clarity, that common law principles applicable to actions for a tort, including the principle of solidary liability, are excluded in relation to the Crown's liability for the tort of a police officer. The preferable construction of s 137(5) is that which is consistent with the application of common law principles, including the principle of solidary liability.[290]
Thirdly, despite the State's assertion that s 137(5) requires that damage caused by acts done with malice be apportioned from damage caused by acts done without malice, there is nothing in the language of s 137(5) to indicate that such an apportionment of damages is required. Equally, there is nothing in the text of s 137(5) to provide any guidance as to how that apportionment is to be undertaken. That may be contrasted with other legislation which expressly modifies the principle of solidary liability and requires apportionment of damages among concurrent tortfeasors.[291] By way of example, s 137(5) says nothing about whether the apportionment for which the State contends depends on multiple tortfeasors being sued in the one action, and it says nothing about whether apportionment is required whether or not all concurrent wrongdoers are parties to the action. The absence of any legislative guidance as to the process of apportionment is significant. In light of other statutory apportionment provisions, which reflect careful and deliberate policy reform,[292] it is improbable that the Parliament would have intended to require the courts to engage in an exercise of apportionment without any guidance as to the principles to be applied in doing so.
It is no answer that in this case the trial judge, in her reasons for decision, reached a view on the apportionment of compensatory damages amongst each of the defendants. The learned trial judge did so only in the belief,[293] which she later concluded was mistaken,[294] that she was required by s 137(5) of the Police Act to undertake that apportionment.
Fourthly, the State's contentions appear to equate an order that the Crown pay damages to compensate a plaintiff for the whole of the loss or damage sustained by that plaintiff as a result of a tort committed by a police officer, with the imposition of liability on the Crown for other torts committed by police officers with malice or corruption which may also have been a cause of the same damage suffered by the plaintiff. That is not the case. Under s 137(5), the operation of the principle of solidary liability means that the Crown will be responsible for the full extent of the damage caused by a tort for which it is made liable. However, s 137(5) does not detract from the Crown's ability[295] to pursue a contribution from any other tortfeasors, whether police officers or others, whose torts may also have been a material cause of the plaintiff's damage. The liability of police officers who have committed torts with malice which have also materially contributed to the plaintiff's injury and loss remains entirely unaffected.

At a glance

Court

Decision date

Before

Source

Judgment (425 paragraphs)

THE STATE OF WESTERN AUSTRALIA -v- CUNNINGHAM [No 3] [2018] WASCA 207 (23 November 2018)

Misfeasance in public office by Officer Traynor with respect to Ms Atoms

Misfeasance in public office by Mr Caldwell in relation to Ms Atoms

Malicious prosecution of Ms Atoms by Officer Clark

Misfeasance in public office by Officers Traynor and Clark in relation to Dr Cunningham

Misfeasance in public office by Mr Caldwell in relation to Dr Cunningham

Malicious prosecution of Dr Cunningham by Officer Clark

The explanatory memorandum and the second reading speech

Legislation Cited (11)

Cases Cited (43)