Johnson v State of New South Wales [2019] NSWSC 1206 (11 September 2019)

Background

The worker was a former police officer of the NSW Police Force (NSWPF). The worker made a claim for work injury damages in respect of psychological injuries arising out of her employment. The claim was made against the State of NSW (the State) pursuant to the Crown Proceedings Act 1987 (NSW).

The worker alleged that her injury arose in part by an assault occasioned against her by another police officer, Mark Gorman. Mr Gorman denied that the assault ever took place.

Prior to determining whether the assault did in fact occur, the Court was required to determine if the State was vicariously liable for the alleged actions of Mr Gorman pursuant to the Law Reform (Vicarious Liability) Act 1983 (NSW).

Decision 

Associate Justice Harrison noted that when considering the vicarious liability of the State for the conduct of police officers, the common law applies.

Her Honour considered what is currently the authoritative case on vicarious liability under common law, being the High Court decision of Prince Alfred College v ADC [2016] HCA 37. At paragraph [81] of that case it was stated:

…the relevant approach is to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the “occasion” for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.

Later in the High Court’s judgment it was stated:

The “relevant approach” … is necessarily general. It does not and cannot prescribe an absolute rule. Applications of the approach must and will develop case by case. Some plaintiffs will win. Some plaintiffs will lose. The criteria that will mark those cases in which an employer is liable or where there is no liability must and will develop in accordance with ordinary common law methods. The Court cannot and does not mark out the exact boundaries of any principle of vicarious liability in this case.

In the current case, for the purposes of considering if the State was vicariously liable for the alleged actions of Mr Gorman, Her Honour assessed the worker’s case ‘at its highest on the facts as pleaded in her statement of claim’. It was noted that those facts included that Mr Gorman and the worker were at the relevant time working together at the Parramatta Children’s Court. The worker alleges that whilst they were at their place of work, Mr Gorman forced himself against her and sexually assaulted her.

After considering the legislation and the various case law, Her Honour noted that the State ‘will only be vicariously liable in circumstances…when a person is acting within their authority or alternatively is performing an authorised act in an unauthorised manner.’

In finding that the State was not vicariously liable for the alleged actions of Mr Gorman, Her Honour commented:

…a police officer who makes an arrest with the use of physical force, in the performance or purported performance of his duty as a police officer, is distinguishable from a police officer who, in the performance or purported performance of his duty as a police officer, sexually assaults a trainee police prosecutor while they are in the same room. While the State of New South Wales provided the opportunity for the alleged tort, it is difficult to see how the State of New South Wales provided the occasion for the wrong. The sexual assault alleged was an act unconnected with the police officer’s duties as a prosecutor. Also it cannot be said that the sexual assault of a junior employee was a mode of performing a function he was required to do.

Implications 

The decision confirms that an employer will not always be vicariously liable for the actions of its employees.

If the wrongful action of an employee is unconnected with their duties, and was not a mode of performing a function they were required to perform as part of their employment, then the employer will not be liable.