PRIOR v STATE OF NEW SOUTH WALES [1998] NSWCA 289

PRIOR v STATE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MEAGHER JA, HANDLEY JA and SHELLER JA 2 September, 23 October 1998

[1998] NSWCA 289 FACTS

The appellant sued the respondent for damages arising from an assault upon him and his false imprisonment by a uniformed police officer on 20 February 1994. The appellant claimed that pursuant to s8(1) of the Law Reform (Vicarious Liability) Act 1983, the respondent was vicariously liable for the torts of the employee. Judgment by direction for the defendant was entered. The appellant appeals.

HELD

By Meagher JA:

1) It would have been open to the jury to find the behaviour of Constable Standley within the course of his service with the Crown in that he was fulfilling an official function albiet in a wrongful and inappropriate manner.

2) Deaton v Flew (1949) 79 CLR 370 does not apply because the duty of the barmaid in that case was to serve beer, not maintain law and order whereas in this case the duty of the policeman was to maintain law and order by inter alia making such arrests as he thought proper.

By Sheller JA, Handley JA agreeing:

1)It was very much a matter for the jury in this case, when properly instructed, to make a finding whether or not Constable Standley was, from the moment he first touched the appellant, attempting to arrest the appellant in the course of his service with the Crown.

2)Distinguishing Deaton v Flew (1949) 79 CLR 370: a distinction can be drawn between the act of arresting someone as an incident of a police officer's function but doing so in an improper manner and assaulting someone out of personal spite.

Meagher JA. In this case the appellant appeals from a decision of Knight DCJ who directed a verdict for the respondent (defendant).

The facts out of which the case arose are disturbing, and (I hope) unusual.