It is acknowledged that the job of a police officer is very important to society and police officers deal with extremely difficult situations.
Police have numerous responsibilities and powers. However, circumstances sometimes arise in which physical force is used unnecessarily causing injury. These circumstances may give rise to a claim against the police if the physical force or conduct was not warranted.
The law needs to allow police officers to perform their duties without the concern of legal claims. However, abuse of power must also be avoided and victims must have appropriate rights in circumstances where there has been an overreaction or abuse of power.
The State of New South Wales will indemnify police officers who are found liable of a tortious act causing injury, provided that the police officer was acting within the scope of his/her employment at the relevant time. If the police officer was acting outside the scope of employment, the ability to pursue a claim against the State of New South Wales is difficult and the injured party may need to pursue the police officer personally. In such circumstances, a police officer may have insufficient financial resources to satisfy any judgment.
Pursuant to Section 6 of the Law Reform (Vicarious Liability) Act 1983, members of the New South Wales Police Force are deemed to be persons in the service of the Crown. Pursuant to Section 8 of the Law Reform (Vicarious Liability) Act 1983 and the Crown Proceedings Act 1988, the State of New South Wales is vicariously liable for torts committed by persons in the service of the Crown. An individual police officer may be joined to the proceedings if the Crown denies vicarious liability for the alleged tort.
BPC Lawyers recently acted for a plaintiff in a claim against the State of New South Wales arising from the conduct of police officers. In this case, a minor incident had arisen during a night out. Our client was not directly involved in the incident. However, she was manhandled by a number of police officers after questioning the conduct of police. Our client did not consent to being touched by any of the police officers. However it was alleged that she was assaulted by male police officers using excessive force. Our client was forcibly walked to a police vehicle and pushed face down onto the bonnet of the vehicle. This caused her chest and head to collide with the vehicle. Our client was then handcuffed. After being handcuffed, our client was forced face first onto the concrete footpath. Our client was then physically escorted to a police vehicle (a caged truck) and placed inside the vehicle. She was then detained at a police station for approximately 4.5 hours until she was released from custody.
The plaintiff pursued a claim against the State of New South Wales for assault, battery and false imprisonment arising from the conduct of the police officers involved. The plaintiff claimed compensatory damages, aggravated damages and exemplary damages from the State of New South Wales.
Legal proceedings were commenced in the District Court of New South Wales. Settlement was reached between the parties prior to trial. The plaintiff received an amount of damages to compensate her for the assault/battery, false imprisonment and damage to her reputation.
Our client claimed aggravated damages on the basis that:-
- She was insulted in front of relatives, friends and onlookers;
- She was assaulted and imprisoned on a busy street;
- The police officers involved were bigger and stronger and she was unable to adequately defend herself;
- Other police officers stood by and watched without rendering assistance;
- Her imprisonment was both excessive and unnecessary;
- Her actions did not provoke or warrant the conduct of the police officers;
- Her imprisonment prevented her from going home to look after her family; and
- The police officers involved had failed to apologise to the plaintiff for their actions.
Our client claimed exemplary damages on the basis that the conduct of the police officers:-
- Was heavy handed, unnecessary and insulting;
- Was undertaken with complete disregard for the plaintiff’s rights, feelings and physical welfare;
- Was worsened as it was undertaken by experienced and paid police officers acting in stark indifference to their duties and obligations;
- Was outrageous, extreme and unlawful;
- Involved an abuse of police powers;
- Warranted exemplary damages being awarded to bring home to those responsible for the conduct of police officers, that police officers must be properly trained and disciplined to avoid such abuses;
- Warranted exemplary damages being awarded to reflect the disapproval of society of such conduct;
- Warranted exemplary damages being awarded to mark the Court’s condemnation and to act as a deterrent.
Obviously, each case is different and the conduct of police officers needs to be considered taking into account all of the relevant circumstances. The Courts have held that victims have rights of redress in circumstances where the conduct of police officers is excessive, unprovoked and unwarranted.
In the area of police misconduct, it is also possible to sue for malicious prosecution in circumstances where a person has been found not guilty by a Judge or Jury of a criminal charge or charges. However, such cases involve a high risk of failure. In summary, the plaintiff must prove the following four elements to succeed in a claim for malicious prosecution:-
- That the prosecution was initiated by the defendant;
- That the prosecution terminated in favour of the plaintiff;
- That the defendant acted with malice in bringing and maintaining the prosecution; and
- That the prosecution was brought or maintained without reasonable and probable cause.
In certain circumstances, a prosecution may be justifiably commenced however, if at some time prior to verdict, a prosecutor becomes aware of the plaintiff’s innocence and continues the prosecution, he or she can still be liable. These cases also require proof that the plaintiff has suffered some damage. “Damage” has been defined as damage being caused to the plaintiff’s reputation and/or personal property. Compensatory, aggravated and exemplary damages may be awarded in circumstances where malicious prosecution is established. Aggravated damages are commonly awarded to increase compensatory damages in malicious prosecution cases. However, the amounts awarded vary significantly depending on the circumstances of each case.
If there is strong evidence to support other torts such as false arrest, assault or battery, there may be little benefit in including a claim for malicious prosecution. This often saves a significant amount of time and legal costs as malicious prosecution actions require an exhaustive examination of the reasons for prosecuting and the evidence available for prosecution.
31 January 2017