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. Mr Prior's evidence was that on 20 February 1994 he was at the Royal Mail Hotel at Narrandera with his wife and children. About 9.15pm he wanted to go home, but rightly judging that he had had too much to drink, arranged with a friend of his, Mr Scott Oxley, to drive him home. Shortly after they started they were stopped by the police who breath-tested the driver, Mr Oxley. The result was negative. The policeman was a Constable Standley. That gentleman, after taking the breath-tests, required the boot of the car to be opened. At about this time, Mr Prior said to the Constable 'You're a big man aren't you?', which attracted the Constable to the passenger door. He said to Mr Prior "Yes, I'm, a bigger man than you.' At some stage after this coloquy the Constable dragged Mr Prior out of the car and bashed him, striking him with a closed fist and causing him injuries so grave that he had to be taken to the local hospital. Moreover, at some stage he was handcuffed. That is the evidence of the plaintiff, Mr Prior. 2 UNREPORTED JUDGMENTS The evidence of his friend, Mr Oxley is much the same, but differs in two vital respects. First, whereas Mr Prior said Constable Standley began punching him before he was dragged from the car, Mr Oxley said Constable Standley began unbuckling Mr Prior's seat belt before he punched him. Secondly, Mr Prior's version has one assailant, Constable Standley; Mr Oxley's version has two assailant's, Constable Standley and another (probably Sergeant Cook). But, whatever the variations on a fairly simple story, one thing emerges from both accounts: certainly one, and possibly two, policeofficers were guilty of an outrageous and disturbing assault on an elderly man for no apparent reason. One would, of course, expect either Constable Standley alone, or he and the second officer, to grasp the opportunity of getting into the witness box and explaining his or their behaviour. Did they? They did not. The Crown called no evidence. One would also expect that officers of the police who were guilty of such behaviour would have been prosecuted for criminal offences and drummed out of the force. However, nothing of the sort happened. Instead, in Orwellian mode, Mr Prior was prosecuted for indecent language, resisting arrest and assault. Events and logic seem to have parted company. What was indecent by the language admittedly used I cannot begin to wonder; why one should forcibly arrest for indecent language is equally bewildering. And to accuse an assaulted person of committing an assault is pure Animal Farm. However, that seems to be what happened. Mr Prior sued the Crown for assault, seeking actual, aggravated and exemplary damages. At common law, it was common ground, the Crown could not have been held liable. However, the matter is now governed by statute. I refer to s 8(1) of the Law Reform Vicarious Liability Act, 1983. It says: 8(1) 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. In the present case the essential question is whether the facts came within that subsection. His Honour held that they did not; or, more accurately, that no properly instructed jury could reasonably hold that they did. Hence the order to discharge the jury which led to this appeal. As his Honour pointed out, there were three factual ingredients which were to be made out for the sub-section to be operative. First, one must find a tort committed by a person in the service of the Crown; not surprisingly his Honour had no difficulty in finding this ingredient made out. Secondly, one must find that the person was actually or purportedly performing a 'function'. His Honour found that ingredient proved. The 'function' was the making of an arrest. His Honour's words in this regard are worth quoting: The next element is that that tort must have been committed by that person in the performance or purported performance by that person of a function. Function is defined by s 5 to include a reference to a power, authority and duty. It seems to me that here it URJ PRIOR v STATE OF NEW SOUTH WALES (Sheller JA) 3 is at least open to the jury, on the evidence which has been put before it, to conclude that these torts of assault and false imprisonment wereperformed by Constable Standley in purported performance of a function. The function being the arrest of Mr Prior. quot;Whether or not a person has been arrested depends not on the legality of the arrest but on whether he has been deprived of his liberty to go where he pleases. The third ingredient is that the 'function' must be in the course of the person's service with the Crown, or incidental to his service. His Honour held that this ingredient was lacking, or (more precisely) that there was no evidence on which a jury, properly instructed, might find that this ingredient existed. The correctness or otherwise of his Honour's holding in this regard was the matter which chiefly occupied our attention. For the respondent Crown, learned Counsel, Mr Buchanan, submitted that the assault and false imprisonment were obviously so foreign to the policeman's duty that they could not possibly be viewed as in the course of his duty or incidental to it. The assault was a 'retributive' action on the part of Constable Standley, presumably meaning thereof that Constable Standley suffered from a sudden rush to his delicate head. Deatons v Flew (1949) 79 CLR 370 was relied upon; in that case, a barmaid who in a fit of anger threw a glass at a customer was held to be acting on a frolic of her own. However, with great respect to his Honour's ruling, I am unable to see its correctness. In my view, it would have been open to the jury to conclude that the behaviour of Constable Standley was undertaken in the course of his service with the Crown, and that it would have been hard to resist that conclusion once one had decided that he was fulfilling an official 'function'. It was for the jury to say. They would have found their task all the easier in the absence of evidence from Constable Standley. Why should they conclude, or even presume, that the Constable was merely acting out of personal spite? Why could they not conclude that the Constable was attempting to effect an arrest which everyone in the world except him knew he had no right to make and in any event was effected in a wrongful and inappropriate manner? Deaton v Flew has nothing to do with this case; the barmaid in that case was employed to serve beer not to maintain law and order; in this case the policeman's job was to maintain law and order, by (inter alia) making such arrests as he thought proper. In my view, the following orders would be made: 1. Appeal allowed. 2. Orders below set aside. 3. Remit the matter to the District Court for a retrial. 4. The respondent Crown to pay the appellant's costs of the appeal. 5. Costs of the first trial to abide the decision of the Judge presiding at the new trial. Handley JA. I agree with Sheller JA. Sheller JA. JUDGMENT BY DIRECTION The appellant, Donald Chartier Prior, sued the respondent State of New South Wales for damages arising from an assault upon him and his false imprisonment by a uniformed police officer, Michael Patrick Standley, on 20 February 1994. The appellant claimed that, pursuant to s 8 (1) of the Law Reform (Vicarious Liability) Act 1983, the respondent was vicariously liable for the torts Constable Standley committed. Section 8(1) provides: (1) Notwithstanding any law to the contrary, the Crown is vicariously liable in respect of the tort committed by a person in the serviceof the Crown in the performance or purported performance by the person of a function (including 4 UNREPORTED JUDGMENTS 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. The proceedings began before his Honour Judge Knight and a jury of four. The appellant led evidence and closed his case. The respondent then applied for a judgment by direction pursuant to Pt 26 r 8 of the District Court Rules. The respondent submitted that there was no evidence upon which a jury, properly instructed, could reasonably find a verdict for the appellant; Ryder v Wambill [1868] LR 4 Ex 32 at 39. On 19 September 1996 his Honour gave the direction the respondent asked for. The appellant appeals from that decision. THE ALLEGED ASSAULT The respondent did not deny the allegations of assault and false imprisonment. The appellant and a witness, Scott James Oxley, gave evidence. Mr Oxley was not cross-examined. The appellant was not cross-examined to suggest that his recollection of the events was in any way incorrect. According to the appellant, on the day of the alleged assault, 20 February 1994, the appellant was at the Royal Mail Hotel Narrandera with his wife anddaughters. At about 9.15pm he arranged with Mr Oxley for Mr Oxley to drive him home. The appellant was he thought over the appropriate blood alcohol limit for driving a motor vehicle. Leaving his wife and daughters at the hotel Mr Oxley got into the appellant's car with the appellant who occupied the front left-hand passenger seat. When they had driven a short distance away from the hotel they saw a police vehicle. The police indicated they should stop which they did. They were both wearing seat belts. Constable Standley approached and while standing opposite Mr Oxley by the driver's door said: 'I stopped you for a roadside breath test'. He asked Mr Oxley for his licence. Mr Oxley said he did not have his licence. It was in his own car. The police officer said something about giving Mr Oxley an hour or two to produce the licence and then asked him to blow into the bag which Mr Oxley did. The police officer said that the results were negative. He then told Mr Oxley to open the boot of the car. Mr Oxley went to the back of the car and did so. There followed two divergent accounts of what happened next. According to the appellant, he turned around and said to Constable Standley 'You're a big man'. Constable Standley then came around to the passenger side front door and opened it. He said: 'I'm a bigger man than you.' By that time he had his head inside the car with the door open. He started punching the appellant in the face with a closed fist. The blows were heavy ones. After a certain number of blows, Constable Standley tried to get the appellant out of the car by grabbinghim by the left arm. When he could not get him out of the car he reached over, found the clip and unclipped the seat belt, got him by the right arm, dragged him out of the car and threw him down onto the gutter. While he was lying there Constable Standley straddled the appellant and started to punch him again to the left side of the face. The blows were so severe that he became semiconscious. When he came to his senses he was half seated and handcuffed from behind. By that stage there was one police officer on either side of him. There were quite a few present. He asked for the handcuffs to be removed which was done. He was then put into a police vehicle and taken to the Narrandera Hospital. There he was accompanied by two URJ PRIOR v STATE OF NEW SOUTH WALES (Sheller JA) 5 police officers and received treatment. After a couple of hours his daughter drove him of his own free will to the police station. He never heard anyone say anything like 'You're under arrest'. He was told that he might receive a summons through the mail for 'language'. Mr Oxley's account of the circumstances of the assault was significantly different. He said that after he had gone back to the boot of the car and opened it up, Constable Standley was still standing at the driver's door and was shining a torch in the appellant's eyes. The appellant asked him to remove the torch out of his eyes but the police officer kept it in his eyes. The appellant then said "You're a real big man aren't you'. The police officer said 'Bigger than you' and then walked around the vehicle behind Mr Oxley and opened thepassenger front door. He tried to pull the appellant out of the car by one hand. He was still holding the torch in the other. He could not get him out of the vehicle so he punched him in the face ''cause he still had the seat belt on'. He then reached in and unhooked the seat belt. A second officer came to his assistance to help him out of the vehicle. As soon as they got the appellant out they pushed him straight down on the ground. While he was lying in the gutter the police officer started laying into him, punching into his face. According to Mr Oxley, the appellant was struck only one blow while he was in the car. He was not sure how many blows were struck while the appellant was on the ground. Mr Oxley said to the officer 'That's enough' but the officer ignored him. They rolled the appellant towards the footpath and again the first police officer laid into him. After about twenty to thirty seconds they stopped hitting the appellant. That is when the handcuffs were put on. By that stage, the police were apparently seeking assistance from other police vehicles. When he was put in the back of the police vehicle the handcuffs were taken off. Mr Oxley gave no evidence of any statement by a police officer that he was arresting the appellant. The respondent tendered a statement made by Mr Oxley on the day of the incident, part of which was as follows: 5. The policeman didn't say anything. I opened the boot up. Then the same officer walked around behind me, ignoring me and walked to the passenger side front door. He opened the door, and started to drag Donny out of the car. The police officer had ahand on Donny's left shoulder and a hand on his right chest. He tried to pull him out of the car but he couldn't because of the seat belt. I saw him reach in and unhook the seat belt. He then tried to drag him out but he couldn't. I saw him hit him with his left hand to the face. 6. He was still trying to get him out of the car but he couldn't. The second officer came and gave him a hand to drag him out. I saw then [sic] unhook Donny's left arm from the seat belt. When they got him out of the car, the police pushed him onto the gutter. Donny said to him, "Your [sic] a real big man." The police officer who first spoke me said. "Yeah, I'm bigger than you." He pushed Donny back further towards the cement footpath and then placed his knee in Donny's left hip. Donny was laying on his right side. 7. The police officer started hitting him in the face with his fist with a torch clenched in it. I said to the officer, "Thats enough" but he kept on proceeding to hit Donny. The other officer said, "Are your right mike [sic]". The second officer came and grabbed Donny's arm while the first one was still hitting him. 8. After the second officer went and called for back up and the highway patrol and a police four wheel drive pulled up. The highway patrol parked straight across from where we were parked and the four wheel drive parked out the front of Frasers on the corner. The police officers from the four wheel drive came over and cuffed Donny and put him in the back of the four wheel drive. 6 UNREPORTED JUDGMENTS REASONS FOR JUDGMENT In his reasons for judgment of 19 September 1996, Judge Knight discussed s 8 (1) of the Law Reform (Vicarious Liability) Act and held that the phrase 'in the course of his service with the Crown' was to be interpreted in the same way as the words 'in the course of his employment' had been interpreted in employment situations. He said, applying the section, that the torts of assaultand false imprisonment had been committed by Constable Standley and that it was at least open to the jury to conclude that they were committed by Constable Standley in purported performance of a function, that being the function of the arrest of the appellant. He said it was open to the jury to conclude that the actions of placing handcuffs on the appellant and leading him towards the back of the vehicle constituted an arrest and that at least the tort of false imprisonment was committed in the purported performance by Constable Standley of the function of arrest. His Honour said: Moreover, I do not think one can artificially divide the assault, which took place immediately prior to the putting on of the handcuffs, from the act of arrest. On any version of it, it was one continuous series of acts from the time the first blow was struck to the time that Mr Prior was led, handcuffed, towards the back of the police vehicle. This conclusion accorded with the respondent's submissions. Judge Knight was also quite satisfied that there was no evidence upon which the jury could find that the requirements of s 8 (1) (b) had been met. However, his Honour held as follows: It seems to me that, on the evidence which was placed before them — Mr Prior had said to Constable Standley "You're a big man aren't you?" or words to that effect, and Constable Standley immediately before hitting him had replied "Yes I'm a bigger man than you" and then proceeded to hit him — the only possible inference which is available is that Constable Standley took a gross dislike to Mr Prior's words and immediately commenced to extract retributive justice. I do not think there is any other conclusion which is open to the jury on the evidence which has been put before them, and that only highlights, to my mind, the proper position in this case, which is, as I have said, that I consider that the acts of Constable Standley so clearly departed from the scope of his service with the Crown that the Crown is not liable for his wrongful acts, and I consider there is no evidence upon which the jury properly instructedcould reasonably find that he was acting within the course of his service with the Crown. Accordingly, he upheld the respondent's application. JUDGMENT SHOULD NOT HAVE BEEN DIRECTED Judge Knight took the expression 'retributive justice' from a passage he quoted in the judgment of Dixon J in Deatons Pty Limited v Flew (1949) 79 CLR 370 at 382 which concerned the vicarious liability of a hotel proprietor for injury caused when a barmaid serving in the bar threw beer and a glass at the plaintiff. 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) 219). 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 URJ PRIOR v STATE OF NEW SOUTH WALES (Sheller JA) 7 the High Court rejected. Dixon J at 381 observed that the barmaiddid 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 Limited 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. Thus 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. In the present case, if the only evidence before the jury was the account the appellant himself gave, which involved the verbal interchange followed by the assault of punching the appellant in the face with a closed fist, I would accept that it was not open to a jury to conclude that the purported performance of the function of arrest was in the course of or an incident of Constable Standley's service with the Crown. A police officer walking down the street who comes upon a person against whom he has a grudge and who for that reason assaults and arrests that person is not doing so as an incident of his service with the Crown. But what if the jury accepted Mr Oxley's account of what happened? According to Mr Oxley, after the appellant said to the police officer "You're areal big man aren't you?' and the police officer said 'Bigger than you', the police officer opened the door of the car and tried to pull the appellant out of the car, that 8 UNREPORTED JUDGMENTS is to say, tried to arrest him, but was prevented by the seat belt. When he found he could not get him out of the vehicle he punched him in the face once, then unhooked the seat belt and dragged him out of the car. It was open to the jury to conclude that the police constable was acting out of spite or retributive justice. But it was also open to the jury to conclude that he was arresting the appellant because the appellant had used words to him in his capacity as a police officer, which Constable Standley considered to be offensive or insulting. This would be a case of an improper act, due to error or ill judgment, but done in the supposed furtherance of the interests of the Crown. Moreover, the act was one to which the ostensible performance of the Crown's work gave occasion and which was committed under cover of the authority the police officer was held out as possessing or had as a result of the position in which he was placed as a representative of the Crown. This points up that 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. In my opinion, the appeal should be allowed and a new trial ordered. I do not think any error was demonstrated by his Honour in rejecting the evidence of theNarrandera Hospital records or the statement prepared by Constable Standley. I agree with the orders proposed by Meagher JA. Appeal allowed. Orders below set aside. Remit the matter to the District Court for a retrial. The respondent Crown to pay the appellant's costs of the appeal. Costs of the first trial to abide the decision of the Judge presiding at the new trial. WPYONP Counsel for the appellant: J CUMMINS QC/R E DUBLER Solicitors for the appellant: FRIEND and HAZARD Counsel for the respondent: D BUCHANAN SC Solicitors for the respondent: CROWN SOLICITORS OFFICE