Can I bring a claim against the Police for negligence?

Sep 15, 2022 | Publication | 0 comments

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.

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources. If you do not wish to receive newsletters from us, please let us know.

Latest Insights

New Coercive Control Laws in NSW as of 1 July 2024

From 1 July 2024, coercive control will be a crime in NSW when a person uses abusive behaviours towards a current or former intimate partner with the intention to coerce or control them. The Crimes Legislation Amendment (Coercive Control) Act 2022makes it an...

Key Rules on Discovery Procedures for Prospective Defendants

Rules 5.2 and 5.3 of the Uniform Civil Procedure Rules 2005 (UCPR) provide essential guidelines on discovery aimed at identifying or locating prospective defendants. These rules are instrumental in the pre-litigation process, ensuring that applicants can gather...

5 Ways A Director Can Be Sued

Directors can be sued for all sorts of reasons.  Here are 5 of them. Reason #1: Insolvent Trading A director can be sued if the company he or she is a director of trades whilst insolvent.  A director has a duty to prevent the company trading and incurring...

7 Ways to Enforce a Judgment

After a judgment is obtained for an amount of money, there are numerous options open to a judgment creditor in relation to how to enforce the judgment (i.e. how to obtain the money which is owed pursuant to the judgment). Option #1: Issue a Bankruptcy Notice If the...

Who Can Bring a Compensation to Relatives Claim?

In the unfortunate event of a loved one's passing due to negligence or wrongful act, the Compensation to Relatives Act 1897 in New South Wales outlines the parameters for pursuing compensation on behalf of the deceased. Understanding who has the legal standing to...

10 Myths of Being Sued

If you or your business are sued, there are many myths about how the legal process will pan out.  Here are 10 myths about the legal process – all are incorrect. Myth #1: The matter will definitely go to a hearing Most matters settle before a Judge decides...