25 November 2014
State denies duty of care to injured police
The state government and Victoria Police are using an arcane legal technicality to block seriously injured police officers from suing the force for compensation, claiming they owe no duty of care to members hurt in the line of duty.
The use of the contentious tactic comes as Victoria Police are fighting at least three lawsuits from former officers who allege they received permanent physical and psychological injuries on the job.
In a bid to avoid a payout, the government is claiming that police officers are not technically employees of the state but ‘‘public officers’’ conducting ‘‘independent duties’’, absolving the government of civil liability for their injuries.
The defence has been filed in a lawsuit brought by former mounted police officer Justin Boyer, who alleges he sustained severe psychological trauma at the hands of fellow officers after he reported allegations of corruption to authorities.
The government’s argument is based on an interpretation of the wording of a police oath written more than 56 years ago which sees Victorian officers sworn into service of ‘‘our Sovereign Lady the Queen’’.
‘‘[The government] denies that [Mr Boyer] was employed by [the government], and says further that at all material times [Mr Boyer] was executing independent duties cast upon him by reason of his oath taken under the Police Regulation Act 1958,’’ the defence filed in the Supreme Court says. ‘‘[The government] denies that it owed a duty of care to [Mr Boyer].’’
Police Minister Kim Wells and Chief Commissioner Ken Lay have refused to comment on whether they personally authorised the defence used by the external law firm hired to represent the government because the matter is currently before the court.
A source said the government has used the defence in the past in a bid to block civil claims despite police officers being apparently recognised as employees in some industrial relations legislation and by WorkSafe.
But Giuseppe Carabetta, senior lecturer at the University of Sydney Business School, said the government’s defence could be difficult to refute because police have long been recognised in law as “office-holders” rather than employees.
“Essentially the Crown is denying that the plaintiff is an employee in the strict common law sense. As the law currently stands, the Crown will, in my view, succeed,” he said.
The decision to fight the claim also comes despite the government acknowledging Mr Boyer had received a ‘‘serious injury certificate’’ early last year.
Mr Boyer claims to suffer from a knee injury and severe post-traumatic stress disorder and depression after being subjected to a campaign of ‘‘harassment, discrimination, vilification, intimidation and bullying’’ by fellow officers for reporting allegations of misconduct and corruption. He is seeking more than $250,000 in damages.
The government has denied the allegations but also claimed that Mr Boyer could be ‘‘guilty of contributory negligence’’ for failing to report to superiors that he was allegedly being victimised.
The Police Association has declined to comment on the government’s defence because the case involves a former officer making claims that include other members of the force.