New South Wales v Ibbett

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: Gleeson CJ,Gummow,Kirby,Heydon,Crennan JJ
• Judgment Date: 12 December 2006
• Neutral Citation: [2006] HCA 57,2006-1212 HCA A
• Docket Number: S227/2006
• Date: 12 December 2006

[2006] HCA 57

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ

S227/2006

State of New South Wales

Appellant

and

Dorothy Isabel Ibbett

Respondent

Representation

J E Maconachie QC with E Chrysostomou for the appellant (instructed by Crown Solicitor for New South Wales)

J J J Garnsey QC with B E Kinsella for the respondent (instructed by James Fuggle)

Crown Proceedings Act 1988 (NSW), s 5.

Law Reform (Vicarious Liability) Act 1983 (NSW), ss 6, 8, 9B, 9G(2).

Police Legislation Amendment (Civil Liability) Act 2003 (NSW).

New South Wales v Ibbett

Tort — Trespass — Whether recognition of occupiers' rights of quiet enjoyment of land an appropriate consideration when awarding damages.

Damages — Aggravated damages — Exemplary damages — Where assault and trespass committed by police officers — Whether an award of general damages, aggravated and exemplary damages involves punishment twice for the same wrong.

Damages — Exemplary damages — Vicarious liability — Where the Law Reform (Vicarious Liability) Act 1983 (NSW) and the Police Legislation Amendment (Civil Liability) Act 2003 (NSW) assigned liability of police officers to the Crown — Whether award of exemplary or aggravated damages against the Crown appropriate.

Words and phrases — ‘double punishment’, ‘aggravated damages’, ‘exemplary damages’, ‘vicarious liability’.

ORDER

Appeal dismissed with costs.

1 Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ. This appeal by the State of New South Wales from the New South Wales Court of Appeal 1 raises issues the resolution of which depends upon the interplay between the common law and several items of New South Wales legislation. The issues involve the nature and extent both of the interests protected and vindicated by an award of damages against the State for trespass to land and of the vicarious liability of the State for exemplary damages awarded in an action for trespass to land and for assault.

2 It should be observed at the outset that much of the criticism respecting the remedy of exemplary damages has been stimulated by such awards in defamation actions. This appeal does not arise from an action of that kind and, in any case, under the recent legislation in this country, no plaintiff may be awarded exemplary or punitive damages for defamation 2.

The nature of the action

3 The respondent (‘Mrs Ibbett’) brought an action in the District Court for damages occasioned by reason of the conduct at her house of two members of the NSW Police 3.

4 The State was identified by s 5 of the Crown Proceedings Act 1988 (NSW) (‘the Crown Proceedings Act’) as the proper defendant. This rendered the State generally amenable to an action in tort based upon vicarious liability 4. In former times, the circumstance that police officers often acted in the exercise of common law or statutory powers and according to ‘independent’ discretions

would have taken an action such as that of Mrs Ibbett outside the scope of the vicarious liability of the Crown 5. However, in this respect, there has been further legislation.

5 Section 6 of the Law Reform (Vicarious Liability) Act 1983 (NSW) (‘the 1983 Act’) deems police officers to be persons in the service of the Crown. Section 8 renders the Crown vicariously liable in respect of torts committed by such persons in the course of their service and in performance or purported performance of an independent function. No occasion arises in this appeal to examine the statutory equation of the State, created by the Constitution of the Commonwealth, with the Crown 6. The 1983 Act can be interpreted in accordance with its own terms and without reference to any possible constitutional questions.

6 Counsel for the State emphasised that s 8 is drawn in terms which apply the ‘master's tort’ theory of vicarious liability, associated with the reasons of Fullagar J in Darling Island Stevedoring and Lighterage Co Ltd v Long7, whereby the master is liable for a breach of duty resting on the servant, not on the master, and broken by the servant. The other theory, that adopted by Kitto J in Long8, treats the act of the servant as the indirect act of the master.

7 Mrs Ibbett's action was commenced on 10 December 2002 against the State as third defendant and Senior Constables Pickavance and Harman as first and second defendants. Before trial, Mrs Ibbett discontinued her action against the individual defendants and the action proceeded to a hearing before Phegan DCJ (sitting alone) as one solely against the State. However, in 2003, the 1983 Act was amended, with respect to the pending litigation, by the Police

Legislation Amendment (Civil Liability) Act 2003 (NSW) (‘the 2003 Act’). The changes made by the 2003 Act of its own force relevantly applied to the pending action (s 9G(2)). Further, s 9B introduced a special regime in the following terms:

‘(1) A police tort claim is a claim for damages for a tort allegedly committed by a police officer (the police officer concerned) in the performance or purported performance of the officer's functions (including an independent function) as a police officer, whether or not committed jointly or severally with any other person.

(2) Except as provided by this Part, a person may not in any legal proceedings make a police tort claim against the police officer concerned, but may instead make the claim against the Crown.

(3) A person who makes a police tort claim against the Crown in any legal proceedings may join the police officer concerned as a party to the proceedings only if the Crown denies that it would be vicariously liable for the alleged tort if it were established that the police officer concerned had committed the tort.’

For the purposes only of s 9B(3), the State admitted vicarious liability for the conduct of the two police officers.

The facts

8 More should be said now respecting the facts. Mrs Ibbett was born in 1931. Her husband had died in 1995. Mrs Ibbett had owned three shops and had worked as a paymistress for 17 years. She last worked in 1987. Mrs Ibbett had been very involved with the bowling community and had been District President of the Lower North Coast District. The trial judge accepted her evidence, saying that she gave her testimony in a clear and matter of fact way, and without any sign of exaggeration or reason for suspecting invention.

9 Mrs Ibbett had three children, a daughter and two sons. One son, Warren, born in 1958, returned to live with his mother since his release from prison in 1997. This was after he had served a term of five and a half years imprisonment. That was the third of three lengthy periods of imprisonment served by him. He said in evidence at the trial of the present action that he had been a drug user ‘on and off over the years’.

10 The events complained of by Mrs Ibbett occurred in the early hours of 23 January 2001 at the house then owned and occupied by her in Forster, on the North-central coast of New South Wales. The house had been built for Mrs Ibbett with the assistance of her son in fitting it out. The premises had four bedrooms and an attached double garage with access from the house.

11 Shortly before 2.00 am on 23 January 2001, whilst Mrs Ibbett was asleep in the main bedroom across a hallway directly behind the garage, her son arrived home in his van. He was pursued by a police vehicle. The police vehicle was occupied by the two police officers, Senior Constables Pickavance and Harman. They were acting under operational orders ‘to keep a lookout for’ Mr Ibbett. However, the only offence, commission of which the police reasonably suspected Mr Ibbett, was a driving offence.

12 Mr Ibbett drove into the garage of the house and, using a remote control device, closed the roller door. As the roller door was closing, Senior Constable Pickavance dived under it and sought to arrest Mr Ibbett. He had no proper basis for making such an arrest or entering the property. He was not uniformed and was wearing casual clothing.

13 There was a commotion with both parties shouting or screaming at each other. This awakened Mrs Ibbett. Whilst Senior Constable Pickavance had his service pistol directed at Mr Ibbett, Mrs Ibbett opened a door leading from the hallway into the garage. She heard her son say to Senior Constable Pickavance, ‘Who are you? Get outta here.’ She repeated words to that effect, at which stage Senior Constable Pickavance swung towards her, pointing his gun at her and said, ‘Open the bloody door and let my mate in.’ Mrs Ibbett had never seen a gun before and was petrified. The trial judge regarded that description of her state of mind as no exaggeration.

14 To this point, Senior Constable Harman had been outside the house but came in when the roller door to the garage was re-opened. Like Senior Constable Pickavance, he was not uniformed and wore casual clothing.

15 Mr Ibbett was removed to the driveway, handcuffed and pushed to the ground. Uniformed police arrived. Mr Ibbett's vehicle was removed onto the driveway and searched. He himself was returned to the garage and strip searched. Criminal proceedings were commenced against Mr Ibbett. However, these were subsequently withdrawn.

16 At the trial in the District Court of Mrs Ibbett's claim for damages against the State, Senior Constable Pickavance denied that he had pointed a gun at Mrs Ibbett, but his evidence was not accepted. The trial judge described him as ‘conspicuously careless with the truth’. Senior Constable Harman was treated as a more forthright and reliable witness but much of his evidence impressed the trial judge as coloured by a sense of loyalty to his fellow officer.

17 Phegan DCJ concluded:

‘It is very difficult to escape the conclusion that, contrary to their evidence, the police officers were on the look out for Ibbett, identified his van as it came along Lakes Way,...