The current law
The intent of the current law is to give those adversely affected by police behaviour in torts a right of recourse against the State for police members’ wrongs. However, there are numerous pitfalls with the scheme. One of these is the lack of certainty for claimants, especially those who bring successful claims against individual police members but then struggle to recover damages and have no recourse to obtain money from the State because the members are deemed not to have acted reasonably, necessarily or in good faith.
The current regime has also given rise to a multitude of practical problems, such as:
- the requirement to engage separate legal representation to represent the interests of the State and police members named as defendants in a civil claim;
- significant legal expenses incurred in cases involving split legal representation; and
- difficulties in coordinating and managing claims involving split legal representation.
The new law
Essentially, the new Act provides that a person can bring a police tort claim against the State where a police member or protective services officer (PSO) has allegedly committed a tort in the performance (or purported performance) of their duties. A 'police tort claim' in the Act includes claims in negligence, assault and battery, false imprisonment and malicious prosecution, as well as detrimental action claims and certain wrongful death actions.
Under the Act, a person is not permitted to make a claim against a police member or PSO personally unless the State denies liability by arguing that an individual member or PSO engaged in 'serious and wilful misconduct'. This aims to protect police members and PSOs that have acted in good faith in the course of their duties from being personally named in court proceedings.
However, if a police member or PSO has engaged in particularly egregious conduct the State can raise the defence of 'serious and wilful misconduct' to defeat the claim. If the State raises this defence, the individual police members or PSOs will be required to be named as individual defendants to the proceeding and these individuals will be required to pay any damages ordered by the court if they are found liable in the proceeding and have also been found to have acted with 'serious and wilful misconduct'.
The meaning of 'serious and wilful misconduct'
'this means that serious misconduct by police which is deliberate, which extends beyond recklessness, or culpable or gross negligence and which is done with a knowledge that risk of injury or loss may occur, may fall within the concept of serious and wilful misconduct'.In other jurisdictions, examples of what courts have found to constitute 'serious and wilful misconduct' by police members include:
- falsely imprisoning a suspect, forcing a confession using threats and maliciously prosecuting the suspect based on this confession;
- lying to a police oversight body and not acting on disciplinary files;
- committing multiple acts of larceny; and
- extorting $10,000 from an alleged child pornographer and making threats to otherwise pursue child pornography charges.
Under the Act, if the State succeeds with its defence of 'serious and wilful misconduct', the State has no right to seek costs against the person bringing the claim. However, the State must pay any damages or costs awarded to a claimant against a police member or PSO, if the Minister is satisfied that the successful claimant is unlikely to recover the money from the police member (or PSO) and has exhausted all avenues to recover the amount.
Time for change
If you are in the Victorian Government and would like advice on the new torts regime for Victoria Police, please contact: