Johnston v State of New South Wales [2020] NSWSC 174

Supreme Court New South Wales

Medium Neutral Citation: Johnston v State of New South Wales [2020] NSWSC 174 Hearing dates: 25 February 2020 Decision date: 06 March 2020 Jurisdiction: Common Law Before: Ierace J Decision: (1) The initial determination of the Honourable Associate Justice Harrison on 11 September 2019 that the first defendant is not vicariously liable for the torts allegedly committed by the second defendant, pursuant to ss 9C(a) and (b) of the Law Reform (Vicarious Liability) Act 1983 (NSW), be set aside.

(2) The determination of whether the first defendant is vicariously liable for the tort allegedly committed by the second defendant be reserved for the final hearing.

(3) The plaintiff to pay the first and second defendants' costs of this motion. Catchwords: PRACTICE AND PROCEDURE – Law Reform (Vicarious Liability) Act 1983 (NSW) – initial determination – vicarious liability of the Crown – whether initial determination impracticable in the circumstances

TORTS – intentional torts – assault – battery – vicarious liability of the Crown – police officer – whether alleged tortious acts were committed in the course of service to the Crown Legislation Cited: Law Reform (Vicarious Liability) Act 1983 (NSW), ss 5, 6, 8, 9B, 9C, 9D, 9E Uniform Civil Procedure Rules 2005 (NSW), r 49.4 Supreme Court Act 1970 (NSW), s 75A Cases Cited: Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409 Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 Prior v State of New South Wales [1998] NSWCA 289 Category: Principal judgment Parties: Lina Johnston (Plaintiff) State of New South Wales (First Defendant) Mark Christopher Gorman (Second Defendant) Representation: Counsel: D O'Dowd (Plaintiff) J Giles SC; D Stanton (First Defendant) S Lavery (Solicitor) (Second Defendant)