Johnston v State of New South Wales [2019] NSWSC 1206

Johnston v State of New South Wales [2019] NSWSC 1206

Taking the plaintiff's case at its highest, the alleged sexual assault and battery committed by the police officer in the workplace, although performed during the course of employment, lacked sufficient connection to the performance of authorised functions as a police prosecutor; the act was not an improper mode of performing authorised duties but rather an act of personal nature unconnected to employment. The Crown is therefore not vicariously liable for the alleged torts under s 8 and s 9C of the Law Reform (Vicarious Liability) Act 1983 (NSW).

Jurisdiction
Australia
Judgment Date
11 September 2019
Procedural Posture
Civil / Initial Determination on Vicarious Liability (interlocutory)
Outcome
Initial determination that the Crown is not vicariously liable for the second defendant's alleged sexual assault and battery.
Legal Topics
['vicarious Liability' 'intentional Torts' 'assault and Battery' 'initial Determination Under Law Reform (vicarious Liability) Act 1983 (nsw)' 'police Tort Claims' 'separate Question Under UCPR 28.2']
['tort Law' 'employment Law' 'police Law'] ['vicarious Liability' 'intentional Torts' 'assault and Battery' 'initial Determination Under Law Reform (vicarious Liability) Act 1983 (nsw)' 'police Tort Claims' 'separate Question Under UCPR 28.2']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil / Initial Determination on Vicarious Liability (interlocutory)

Legal Issues

  1. 1 ['Whether the Crown is vicariously liable for alleged intentional torts (sexual assault and battery) committed by a police officer against another police employee under s 8, 9C of the Law Reform (Vicarious Liability) Act 1983 (NSW)' 'Whether an initial determination of vicarious liability requires the determination of a separate question under UCPR 28.2']

Ratio Decidendi

Taking the plaintiff's case at its highest, the alleged sexual assault and battery committed by the police officer in the workplace, although performed during the course of employment, lacked sufficient connection to the performance of authorised functions as a police prosecutor; the act was not an improper mode of performing authorised duties but rather an act of personal nature unconnected to employment. The Crown is therefore not vicariously liable for the alleged torts under s 8 and s 9C of the Law Reform (Vicarious Liability) Act 1983 (NSW).

Court Disposition

Initial determination that the Crown is not vicariously liable for the second defendant's alleged sexual assault and battery.

Orders

  • ["In accordance with s 9C(a) and (b) of the Law Reform (Vicarious Liability Act 1983 (NSW), the Court makes an initial determination that the Crown is not vicariously liable for the second defendant's alleged sexual assault and battery to the plaintiff." "The defendant's notice of motion filed 21 December 2018 is...