Tortious liability of the State of Victoria

A tort is a civil wrong and involves the breach of a duty which has been imposed by law. It gives rise to a civil right of action for damages. It does not compensate all losses. While torts and crimes both involve the invasion of a person's protected interests, a tort is a civil wrong as opposed to a criminal wrong.

For liability to be imposed, most torts require fault to be established. Fault includes intentional, reckless or negligent conduct.

There are intentional torts (which involve interference with the person, trespass to land and interference to goods) but the most litigated tort is the tort of negligence.

Tort law originated in the common law (judge-made law). However, over time, these common law principles have been supplemented, or changed, by legislation. In Victoria, the Wrongs Act 1958 is relevant and the interaction of the common law and the statutory provisions is complex.

In 2002, the Federal, State and Territory Governments established the Negligence Review Panel in response to an 'insurance crisis' which involved public liability and professional indemnity insurance premiums reaching very high levels. The Panel was asked to recommend changes to personal injury laws for the primary purpose of reducing the number of litigated claims and the size of court awarded compensation payments to injured claimants.

Tort law does not protect all interests. The table below describes some interests that are protected by the law of torts.

Reference: Mandy Shircore, LawBrief: Torts (1st ed, 2015) Chapter 1

Historically, yes: At common law, the Crown enjoyed absolute immunity in tort (the Crown Immunity Principle)….."the King can do no wrong.."

Current position: The CP Act removed the immunity in tort enjoyed by the Crown, but only in part.

Section 23(1)(b) of the CP Act imposes tort liability on the Crown, saying:

[T]he Crown shall be liable for the torts of any servant or agent of the Crown or independent contractor employed by the Crown as nearly as possible in the same manner as a subject is liable for the torts of his servant or agent or of an independent contractor employed by him.

Section 23 is included in Part II of the Act which is entitled ‘Civil proceedings by and against the Crown’. 'Proceeding’ is defined by section 21 to mean action, suit, or proceeding of a civil nature.

In some cases, tortious liability is also imposed on the State by section 58 of the Judiciary Act 1903 (Cth).

'The Crown' has different meanings in different contexts. In this context, it generally means the Executive Government of the State and those through whom it acts (e.g. Ministers, public servants). For the purpose of tortious proceedings against the State, there is no legal difference between the Crown and the State of Victoria: the CP Act says that relevant proceedings by or against the Crown shall be taken under the title of the State of Victoria.

Are government departments a separate legal entity from the Crown?

No, they are part of the Crown and their employees are public servants who are employees of the Crown. Put another way, departments do not have a separate legal personality from the Crown.

Are administrative offices a separate legal entity from the Crown?

Administrative offices are not separate legal entities from the Crown. They are established in relation to a government department and their employees are public servants and employees of the Crown. Some administrative offices (or the officers which they support) have separate statutory powers and functions.

Are public bodies established by or under Acts separate legal entities from the Crown?

It depends. Public bodies established by or under an Act as a 'body corporate' capable of suing and being sued are separate legal entities from the Crown for the purposes of tort liability. They are liable for their own torts and the CP Act says that the Crown cannot be sued under it in respect of any tort of a 'public statutory corporation' or any of its servants, agents, or independent contractors. However, such bodies may be considered to be part of 'the State', or even the Crown, for other purposes.

Some Acts establish a body or a group of persons (for example a 'Commission') but do not say the body is a body corporate or that it can be sued. The status of each of these bodies for the purpose of tort liability needs to be determined on a case-by-case basis. For example, 'Victoria Police' is established as a body (but not a body corporate) by section 6 of the Victoria Police Act 2013 and the liability of the State for the conduct of police officers is dealt with by section 74 of that Act.

Yes. It has been recognised that the Crown is not liable in tort except where it is vicariously liable for the tortious acts or omissions of its servant, agent or independent contractor.

It is a form of 'strict liability' where a person is held responsible for the tort (or wrong) of another, irrespective of personal fault.

Yes. The State may be directly liable in the following circumstances:

• Breach of statutory duties - The State may be directly liable in respect of the breach of any statutory duty it owes where a particular statute itself confers a right of action.
• Breach of occupiers' duties - A duty of care may be owed by an occupier of property to persons entering the property. Breach of these duties would provide a visitor with a cause of action against the occupier of the land, even if the immediate cause of the accident was the act or omission of an employee of the occupier.
• Breach of employers' duties to employees - There are a number of duties that are owed by employers to an employee including the duty to provide competent staff, a safe place of work, proper and adequate materials and a safe system of work. Breach of these duties would provide an injured employee with a cause of action in negligence against the employer.

An employer is not vicariously liable for all acts done by an employee. However, employers are vicariously liable for certain acts and omissions committed by their employees in the course of their employment. Vicarious liability means that one person is held responsible for another person’s actions. For an act or omission to be considered to be ‘in the course of employment’ it must either have been authorised by the employer or be so closely linked to an act the employer authorised to be considered part of that act. Authorisation may be express or implied.

Statutory office holder? In some cases, a person who holds a statutory office, or an employee given particular statutory powers and duties, will not be treated as an 'employee' for the purposes of vicarious liability. This is because the nature of the office and the statutory powers given to them is such that they exercise those powers independently of any direction from the Crown or State as 'employer' (and only they can be liable for the consequences). Proceedings may be brought against them in their own name, or in the name of their office. In many cases the State is still named as a party and the State will often conduct the proceeding on behalf of the person, but this is strictly not a matter of vicarious liability but the result of an 'indemnity'.

Criminal offences? There are cases in which questions arise about if and when an employer can be vicariously liable for the acts of an employee which constitute a criminal offence. Generally speaking, the following points will be relevant to this issue:

• The fact that a wrongful act is a criminal offence does not preclude the possibility of vicarious liability. Why? Because it is possible that the employee used, or took advantage of, the position in which the employment placed the employee in relation to the victim.
• The relevant approach in determining whether the employer can be vicariously liable is to consider any special role that the employer has assigned to the employee, and the subsequent relationship between the employee and the victim, with particular regard to the following features:
  • authority of the employee over the victim
  • power of the employee over the victim
  • trust the victim may have developed in the employee
  • control of the employee of the victim
  • the ability of the employee to achieve intimacy with the victim.

Therefore, it is important to consider whether the apparent performance of an employee's role may be said to provide the "occasion" for the wrongful act. If it does, then this is more likely to result in vicarious liability.

Yes. The vicarious liability of the Crown does not remove the legal liability of the employee. Generally, the employee who is alleged to have committed the tort will not be named as a party to the legal proceeding, but they can be. In most cases, the employee will be referred to in the 'Statement of Claim' setting out the basis on which the claim for damages is made. Where an employee is named, questions about their legal representation and the payment of any damages will generally be dealt with by their Employment Agreement or the 2008 Indemnities and Immunities Policy.

If a Statement of Claim is served on your department, it is important to consider whether the claim has been correctly made against the State. Examples to look out for include:

• any allegation that the State owes a duty of care to do a certain thing (apart from the three specific areas of direct liability discussed above)
• the failure to identify by name or office (or both) a specific, identified employee of the State alleged to have committed some tort
• an allegation that the State itself has engaged in negligence or some other tortious conduct.

If there are any errors, it will be important to discuss these with the plaintiff's solicitor as early as possible.

Unless steps are taken to correct errors and to tightly confine the issues in dispute, some undesirable consequences might follow, including:

• discovery (in other words, the process by which parties to litigation provide one another with all documents in their possession which are relevant to the issues in dispute) may be sought from the State of a wider range of documents than is required
• it may be necessary to obtain information about, and investigate, all the wide‑ranging allegations
• the court case may be longer and more expensive
• the plaintiff will be entitled to run their case on the basis of what they have alleged, so will be able to lead much broader (and potentially more damaging) evidence.