The short answer is yes, but it depends on the circumstances as there are many protections the Police have against claims in negligence brought by individuals.
Police have immunity in a suit for negligence unless it is found that the act or omission was so unreasonable that it could not be considered to be a reasonable exercise of police functions.
The effect of section 8 of the Law Reform (Vicarious Liability) Act 1983 is that the Crown is vicariously liable in respect of the tort committed by a person in the service of the Crown (police officer).
Section 43 of the Civil Liability Act (NSW) 2002 limits the circumstances in which a claim can be brought against public authorities such as the Police.
Of relevance, is section 43(2), which states the following:
“(2) For the purposes of any such proceedings, an act or omission of the authority does not constitute a breach of statutory duty unless the act or omission was in the circumstances so unreasonable that no authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.”
Section 213 of the Police Act (NSW) 1990 is also of relevance as it provides protection for a member of the NSW Police Force from personal liability:
“A member of the NSW Police Force is not liable for any injury or damage caused by any act or omission of the member in the exercise by the member in good faith of a function conferred or imposed by or under this or any other Act or law (whether written or unwritten).”
In an important decision of Sullivan v Moody [2001] HCA 59, the Court considered whether a duty of care will be rejected on the basis that it imposes obligations on a public authority, inconsistent with its statutory obligations. The Court relevantly stated the following:
‘… when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of the specified class of persons, the law would not ordinarily subject them to a duty to have regards to the interests of another class of persons where that would impose upon them conflicting claims or obligations.’
The issue of whether a duty of care will be rejected on the basis that it imposes obligations on a public authority, inconsistent with its statutory obligations, was considered in the decision of
Fuller-Wilson v State of New South Wales [2018] NSWCA 218.
In 2013, Mr Wilson was killed in a motor vehicle accident. Some months later, the plaintiffs, who were members of Mr Wilson’s family, visited the accident scene and claimed to have suffered psychological injury as a consequence of discovering parts of Mr Wilson’s foot and ankle, as well as remnants of clothing containing his remains, at the scene.
The plaintiffs brought claims against the State of New South Wales for damages alleging that officers of the Police were negligent in failing to remove the remains from the accident site, and in failing to warn them that the remains might still be at the scene.
The claims were initially summarily dismissed with the primary judge being satisfied that the officers owed no duty of care of care.
The plaintiffs were successful, however, in their appeal in arguing that their claims disclosed a reasonable cause of action.
The decision noted that there is a degree of uncertainty regarding the circumstances in which the existence of a duty of care will be rejected on the basis that it imposes obligations on a public authority, inconsistent with its statutory obligations.
If you have reason to believe you have a claim against the Police, or if you require assistance in relation to a personal injury matter, please contact our personal injury team today.
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