Enever v R
3 CLR 969(Judgment by: Barton J)
Enever
v R
Judges:
Griffith CJ
Barton JO'Connor J
Subject References:
Criminal law
Wrongful arrest
Police powers with respect to arrest
Crown
Liability
Wrongful arrest
Nature of police crown relationship
Employment or agency
Legislative References:
Police Act 1865 29 Vict No 10 - The Act
Police Act 1898 62 Vict No 48 - The Act
Crown Redress Act 1891 55 Vict No 24 - The Act
Judgment date: 12 March 1906
Melbourne
Judgment by:
Barton J
The Police Act 1865 (29 Vict. No. 10), s 179, authorizes a constable to arrest without warrant and take before a Justice "any person who within his view ... disturbs the public peace." ...
During or immediately after a street disturbance, the appellantwas arrested by a constable in the streets of Hobart under this enactment. The charge was dismissed. The appellant brought an action against His Majesty to recover compensation for an alleged assault and false imprisonment of the suppliant by a member of the police force of the State of Tasmania who purported to act in the matter in the discharge of his duty as a constable. The case was tried at Hobart before Clark J. on 28th September 1904, and the suppliant had a verdict for PD25, including PD10 paid into Court, with costs, subject to the decision of the learned Judge on the following question of law:"Whether the constable in effecting the arrest mentioned in the supplication was or was not acting as an officer, agent or servant of the Government of Tasmania, within the meaning of the Crown Redress Act 1891." The learned Judge referred that question of law to the Full Court by special case, and that is the question to be determined in this appeal. The Full Court by a majority consisting of the Chief Justice and McIntyre J. (Clark J. dissenting), held that the constable was not acting as the servant of the Government of Tasmania within the meaning of the Crown Redress Act. Section 4 of that Act is as follows:"Any person having or deeming himself to have any just claim against Her Majesty in respect of any contract entered into on behalf of Her Majesty by or under the authority of the Government of Tasmania, or in respect of any act or omission, neglect or default of any officer, agent or servant of the Government of Tasmania, which would be the ground of an action at law or a suit in Equity between subject and subject, may file in any Court of competent jurisdiction of Tasmania a supplication setting forth the particulars of such claim, and the Court in which such supplication is filed is hereby empowered to hear and determine such claim in manner hereinafter provided."
That is the section under which the action is brought, and the application of that section to the present case is the matter to be determined. The point whether the constable was acting as an officer, agent or servant of the Government is not the only question; though the constable might be an officer, agent or servant of the Government, he would still have to be such within the meaning of the Crown Redress Act 1891 before the liability could attach.
First, then, was the constable acting on the occasion in question as an officer, agent or servant of the Government of Tasmania? That question may be treated baldly in the first instance. That he was in a sense an officer of the Government of Tasmania is not open to dispute. He was an officer appointed under a Statute, one of a series of Statutes providing for and regulating the police force and dealing with their duties as such, while of course they had other duties to perform by reference to various Statutes.
In arresting a person, even mistakenly, on a charge of committing within his view a breach of the peace, the constable was acting in the supposed exercise of an authority given to him by the Act of which I have read a section, viz., the Police Act 1865. It is contended on behalf of the appellant that he was in that respect and on that occasion acting as a servant of the Government in such a sense that the maxim respondent superior applies. I have come to the conclusion that that position cannot be sustained. For the maxim to apply, it appears to be plain that the person for whose act it is sought to attach responsibility to the superior, must have been under the control of that superior at the time of the doing of the act. Is a person who is obeying or endeavoring to obey the authority of an Act of Parliament so under the control of the State as to render the State responsible? It appears to me that in order to establish that position it must be shown that the control, if any, under which the person acted was that of the Executive Government of the State. The difficulty of sustaining that position was obvious. Counsel endeavoured to remove it by the argument that the State, that is to say, the Government as a whole, is one and indivisible in relation to what we understand to be its three branches, the Executive, the Legislature and the Judiciary. In other words, counsel for the appellant contended that if what was done, was done under the authority of an Act of Parliament, then it was done under the authority of the State in its legislative capacity, and that the State was equally responsible whether the person whose act was complained of was obeying the State in that or in any other of its three capacities. This contention raised the argument that the State, which is of course recognized as between Government and Government as an indivisible authority in matters of international responsibility, is in the sameposition as to remedies sought in an action by a subject against it. Of course that argument if adopted gets rid of the difficulty. It is a bold and novel proposition, but before it can be established those who put it forward must remove the first obstacle that confronts them, which is that the proposition has not a shred of authority for its support, and has not been put forward before, so far as we know, in any Court of Justice where the question was the responsibility of the State to the subject. Its establishment would be followed by consequences which may be thought of as merely novel and curious, until it is realized that they would involve the whole fabric of the State in confusion and disaster. I do not feel justified in seriously entertaining such an argument.
The difficulty then still remains in the way of the appellant that he has not any cause of action unless it be in respect of an "act of omission, neglect, or default," the responsibility for which rests with the Executive Government. As I have pointed out, the person must be not only the servant of the superior, but must be under the control of the superior before the latter can be held liable. I am of opinion that that is not the case where a constable is obeying a Statute, because when an act is done under a Statute, an order not to do it is one which has no weight or validity, while the order of the Executive Government to do the duty imposed by the Statute gives no added force to the command of the Statute.
In Sadler v Henlock [F7] -to look at the matter as between subject and subject-the question was whether, between the defendant and a person employed by him, who, by his method of doing certain work for the defendant, committed a tortious act, there existed the relation of master and servant, or that of contractor and contractee, and it was held that the former was the real relation, and that the defendant was liable. Had the person employed for the purpose been a contractee "exercising an independent employment" the action would not have lain, because the test was whether the defendant retained the power of controlling the work. On the same principle, that is, because they had parted with the power of controlling theoperation in the course of which the injury took place, the defendants in Donovan v Laing, Wharton and Down Construction Syndicate [F8] , were held not to be liable to the plaintiff in respect of injuries sustained through the negligence of a man who was in the employment of the defendants, but who was, at the time of the injury, under the control of a firm of wharfingers, to whom the defendants had lent his services, during the loading of a ship at their wharf. That the test question is,-Had the defendant the power of controlling the work?-is illustrated with equal clearness in Rourke v White Moss Colliery Co [F9] . In Murray v Currie [F10] , the defendant employed a stevedore to unload his vessel. The stevedore employed his own labourers, amongst whom was the plaintiff, and also one of the defendant's crew, named Davis, whom he paid, and over whom he had entire control, to assist them in unloading. The plaintiff, while engaged in the work was injured through the negligence of Davis. It was held that the defendant was not responsible. Bovill C.J. was of opinion that the rule must be absolute to enter a nonsuit. Willes J., who was of the same opinion said [F11] :"The stevedores, however, are not the servants of the owner of the ship; but they are persons having a special employment, with entire control over the men employed in the work of loading and unloading. They are altogether independent of the master or owner. In one sense, indeed, they may be said to be agents of the owner; but they are not in any sense his servants. They are not put there in his place to do an act which he intended to do for himself."
I mention these cases as illustrations of the clear principle that, before a person can be held responsible for acts of another who is his servant, the latter must at the time of the act be not only the former's servant but must also be under his immediate control, and that is so whether the matter rests between the Crown and a subject or between subject and subject.
Therefore, on the question whether the appellant was, though in a sense an officer of the Government, an officer so under the control of the Government at the time that the maxim respondeatsuperior would apply, I am of opinion that the appellant utterly fails, not only for the reasons I have given, but also for the reasons the learned Chief Justice has given on that branch of the case. In saying this I speak not only as to the matters which I have been putting forward, but also as to the position of a constable of Tasmania as constituted by the Statutes of that State.
In relation to that question of the position of a constable, which after all comes back, when fully considered, to the same question of control, while there is no direct decision there are one or two cases which throw light on the position. The first is the case of Baker v Wick [F12] , which was a further consideration before Lord Alverstone C.J., after trial on these facts. A Justice's warrant of distress addressed in the statutory form to the overseers and constables was handed by one of the overseers to the assistant overseer, who was empowered by the statutory terms of his appointment to perform all the duties of an overseer. It was held that the overseers were not responsible for the illegal acts of the assistant overseer. In delivering judgment His Lordship said [F13] : "It is sought to hold the two overseers responsible for these illegal acts on the part of Washer and the bailiff Webster. The warrant was addressed to the overseers, and it has been contended on behalf of the plaintiffs that the fact of its being so addressed imposed upon the overseers a duty which they could not get rid of by delegating the execution of it to third persons, and that they were in a position similar to that of a sheriff acting under a fi. fa., who is responsible for any illegality committed by his officers in executing the writ .... But there is this important distinction between the two cases, that the assistant overseer, unlike the sheriff's officer, has an independent statutory authority, and is recognized by the legislature as a person who may perform all the duties of an overseer."
The position described is for present purposes very like that of a constable in Tasmania. As to that case, McIntyre J. in his judgment on the appeal to the Full Court in the present case very succinctly put it as follows:"But in Baker v Wicks [F14] thisimportant distinction is drawn between the cases of a sheriff's officer and an assistant overseer of the poor of a parish, viz., that the assistant overseer, unlike the sheriff's officer, has an independent statutory jurisdiction, and acts done by him are so done by virtue of his own authority derived from the appointment of the vestry." Mutatis mutandis that is precisely the position of a constable in this case. The next case is Stanbury v The Exeter Corporation [F15] , at p. 840. A passage in the judgment of Lord Alverstone C.J. renders it unnecessary to state the facts separately:"The action was brought against the corporation of Exeter in respect of an act, which for the present purpose must be assumed to have been negligent, of an inspector who detained some sheep upon suspicion of their being infected with sheep-scab. If this had been an ordinary case of delegation by the corporation of duties which they had to perform, or of powers which they were entitled to exercise, then the ordinary rule of master and servant and the doctrine of respondeat superior might apply. This case, however, having regard to the position of the parties and to the Statute and the order made thereunder, is, I think, very analogous to that of police and other officers, appointed by a corporation, who have statutory duties to perform, where, although they owe a duty to the corporation appointing them, there is no ground for contending that the corporation are responsible for their negligent acts." Wills J. concurred, and his words have been cited. Darling J. said [F16] :"To my mind the question whether the local authority are liable for the inspector's negligence depends upon whether the act done purported to be done by virtue of corporate authority, or by virtue of something imposed as a public obligation to be done, not by the local authority, but by an officer whom they were ordered to appoint." That is just the relation of the constable to the executive authority in this case. He was doing a duty by virtue of something imposed as a public obligation to be done, not by the Government, but by an officer whom the Government had by statutory authority appointed. The judgment continues:"The particular things which the inspector did here werethings which the corporation could not do themselves, and they were not in fact doing them" (any more than was the King doing them in this case)-"They had to carry out the Act, and had to do that by appointing an officer. When that officer was appointed he was guided by instructions given to him, not by the local authority, but by the Board of Agriculture." That is to say he need not have obeyed the order of the local authority. The learned Judge concludes:"It appears to me, therefore, that these were not acts done by a servant of the corporation or under their authority, but were acts of a public nature done by a public officer appointed by the corporation as directed by the Statute."
That again seems to me to put in a short, sensible, and accurate form the position not only of an inspector in that case but also of a constable in this case.
In order to bring the King within the maxim respondeat superior, a number of railway cases were cited, but they have in my opinion no application to this controversy. They turn on a question of authority given to the company for the protection of their own interests, and whether it has been delegated by them. This is shown by Pollock C.B. in Roe v Birkenhead Co [F17] , at p. 40. He says:"It therefore follows that the plaintiff was bound to show that the person by whom he was arrested was not only the servant of the company, but that he then had authority to arrest him" (i.e. from the Company). It is plain that unless the argument as to the indivisible character of the State is to prevail, it cannot for a moment be maintained that in this case the constable had that authority.
It was argued that if cases of this nature afforded no ground of action against the Crown, or "the State," as counsel preferred to call it, there would be little or nothing left to which the Act could apply. The answer to this argument is to be found in the judgment of the Privy Council in Farnell v Bowman [F18] , at p. 649, where their Lordships say:"It must be borne in mind that the local governments in the colonies, as pioneers of improvements, are frequently obliged to embark in undertakings which in other countries are left to private enterprise, such, for instance, as theconstruction of railways, canals, and other works for the construction of which it is necessary to employ many inferior officers and workmen. If, therefore, the maxim that `the King can do no wrong' were applied to colonial governments in the way now contended for by the appellants, it would work much greater hardships than it does in England." The hardship involved in that maxim has resulted in the passing of Statutes in several of the States of the Commonwealth dispensing with its operation in relation to matters beyond the ordinary scope of Government, as it was up to recent times understood. But it still remains open to grave doubt how far, if at all, it was intended by those Acts to give the subject rights of action which in the result would interfere seriously with the ordinary administrative work of the Government as apart from undertakings of the character referred to by the Judicial Committee in the case last cited. Several cases of that kind in New South Wales were cited in argument, but I do not think it is necessary to refer to them now. I should however like to refer to some remarks of A. H. Simpson J. in Davidson v Walker [F19] . There the plaintiff was under the impression that there was no reason of public policy which prevented him from bringing against the Crown any action for what, as between subject and subject, would be a tort. He brought an action against the Crown for a nuisance in respect of the location and conduct of a prison.
In giving judgment, Simpson J. said [F20] :"I do not think the Claims Against the Government Act (39 Vict. No. 38), repealed and re-enacted by 1897 No. 30, affects the question. That Act, no doubt, extended the rights of private persons against the Government by making the Government liable to be sued for a tort: Farnell v Bowman [F21] , but I do not think it was intended to put the Government in the same position as private persons. If it were, this would amount to submitting to the control of a jury the exercise of various important functions of Government, such as the administration of military matters, of justice, the control and management of prisons, lunatic asylums, publicschools, etc Practically, this would render the Government departments in these important matters helpless."
This passage illustrates the doubts I have suggested as to the supposed universality of the effect of the class of Statutes which deal with remedies against the Crown.
In my opinion, then, the Government is not liable for the tort complained of in this case either on the ground that, on the occasion in question, and within the scope of the duties he was performing, the constable was acting as a servant of the Crown, or on the ground that this was an occasion on which an action would lie between subject and subject. On both those grounds I am equally clear, and I need not add to what the learned Chief Justice has so clearly and exhaustively said in relation to the question depending on the construction of the words in s 4 of the Crown Redress Act 1891, because, having regard to the history of the institution and administration of the police and their regulation by Statute, the circumstances and the reasons of the administration sections are so wholly different from anything that could exist in relation to the adjustment of civil rights as between subject and subject, that it is impossible to suppose that the words of s 4 apply so as to render the Crown liable for the tortious act of a constable in the mistaken belief that he is performing a statutory duty. I agree that the appeal fails.