Insurance Alert – Crown immunity from suit – Salt v State of Victoria [2017] VSC 6

Feb 6 2017

Publications

Executive summary

The Crown’s immunity from suit for torts is removed by s 23(1)(b) Crown Proceedings Act 1958 (Act), which establishes the Crown’s vicarious liability for breaches by its servants, agents or contractors.

The Act does not remove the Crown’s immunity for personal liability.

His Honour Justice Keogh drew on the historical context of the Act including the second reading speech.

Justice Keogh noted the intention of the Act is to impose on the Crown a vicarious but not an original liability in tort.

Such a distinction deals with the historical immunity of the Crown in a proceeding, rather than substantive liability in court.

Facts

The Plaintiff, Ms Salt, made a claim for damages for injury to her right leg she alleged she sustained in the course of her employment with the State of Victoria (State), when she slipped on food on the floor of the State’s workplace. The Plaintiff alleged the State’s negligence caused her injury.

The Plaintiff commenced proceedings in the Supreme Court of Victoria, but she did not plead her case so as to comply with s 23 of the Act in that:

  1. She did not allege the State was vicariously liable for its servants, agents and contractors.
  2. She did not particularise:
    • The servants, agents or contractors for whom / which the State is vicariously liable; and
    • The negligent acts or omissions of those servants, agents or contractors.

The Plaintiff’s counsel submitted there was no requirement to do so because s 25 of the Act removed the immunity of the Crown for personal, as opposed to vicarious, liability of torts.

The Plaintiff’s counsel applied to the Court of Appeal, reserving the following questions:

Does s 25 of the Act:

  1. Remove the immunity of the Crown in right of the State from liability in tort;
  2. Enable proceedings to be bought against the State as a subject; and
  3. Obviate the need for compliance with s 23(1)(b) of the Act by an employee of the State who brings proceedings against her employer for damages for personal injury suffered in the course of her employment?

By summons, the State applied for an order the Plaintiff make and serve an amended statement of claim to comply with s 23 of the Act.

The State alleged the Act makes clear s 23 deals with the underlying issue of liability of the Crown for torts, whilst s 25 deals with the rights of the parties within a proceeding.

The State alleged, if construction of s 25 was taken as counsel for the Plaintiff contended, this would leave no work for s 23(1) of the Act.

Ultimately, Justice Keogh granted the State’s application for the Plaintiff to serve an amended statement of claim, and denied the Plaintiff’s application to have their questions considered by the Court of Appeal.

Justice Keogh considered the Plaintiff’s questions and agreed there was great public importance in the answer. However, he felt the authorities were straightforward with no true conflict.

Justice Keogh applied Hall v Whatmore [1961] 2 VR 475, in which it was determined the only liability of the Crown in tort is vicarious liability for the tort of any servant, agent or independent contractor. Mr Hall, a Pentridge prisoner who was injured when his arm became caught in moving parts of a machine in the machine shop, bought an action against the inspector-general of penal establishments and the State. The Court unanimously decided s 23 of the Act made clear liability, if any, is liability in tort, and the State is not liable in tort save to the extent it is vicariously liable by virtue of the Act.

Learning

When the State is a named Defendant, the pleadings should be analysed to establish:

  1. Whether the Plaintiff has alleged the State was vicariously liable for its servants, agents and contractors.
  2. Whether the Plaintiff has particularised:
    • The servants, agents or contractors for whom / which the State is vicariously liable; and
    • The negligent acts or omissions of those servants, agents or contractors.

For further information please contact:

Cameron Roberts | Partner | +61 3 9641 8696 | croberts@tglaw.com.au
Samuel Barker | Lawyer | +61 3 9641 8969 | sbarker@tglaw.com.au