|Sneddon v State of New South Wales  NSWCA 351|
|Before||Basten JA at 
Macfarlan JA at 
Meagher JA at 
|Catchwords||APPEAL – leave to appeal – judgment against one joint tortfeasor for over $100,000 – appeal against dismissal of claim against other joint tortfeasor – first tortfeasor satisfied judgment – whether leave to appeal required – whether matter at issue of the value of $100,000 – whether value of matter determined at time that notice of appeal is filed – Supreme Court Act 1970 (NSW), s 101
CONSTITUTIONAL LAW – Constitution of New South Wales – functions and duties of Member of Legislative Assembly – whether Member of Legislative Assembly is “a person in the service of the Crown” – Constitution Act 1902 (NSW); Law Reform (Vicarious Liability) Act 1983 (NSW), s 8
DAMAGES – assessment of damages – severity of loss as proportion of most extreme case – uncertainty as to the prospects of full recovery – whether necessary to assess likelihood of hypothetical future event occurring – whether error of principle – whether assessment wholly unreasonable – Civil Liability Act 2002 (NSW), s 16
JUDGMENTS AND ORDERS – res judicata and issue estoppel – default judgment – claim brought against third defendant for alternative and inconsistent causes of action – first and second defendants vicariously liable for conduct of third defendant – default judgment entered against third defendant did not distinguish between causes of action – whether res judicata or issue estoppel created in relation to either or both causes of action – relevance of pleadings – whether default judgment can be entered in relation to only one of alternative causes of action – whether default judgment necessarily and precisely determined the cause of action for which the third defendant was liable
TORT – vicarious liability – vicarious liability of the State for conduct of persons in service of the Crown – tortious conduct of Member of Parliament in relation to electorate officer – whether Member of Parliament in the service of the Crown – whether conduct in Member’s capacity as a Member of Parliament – Law Reform (Vicarious Liability) Act 1983 (NSW), s 8
TORT – vicarious liability – vicarious liability of the State for conduct of persons in service of the Crown – tortious conduct of Member of Parliament in relation to electorate officer – whether Speaker of Legislative Assembly part of executive government – whether Member agent or delegate of Speaker – Law Reform (Vicarious Liability) Act 1983 (NSW), s 8
WORDS & PHRASES – “involves a matter at issue amounting to or of the value of” – Supreme Court Act 1970 (NSW), s 101
WORDS & PHRASES – “the Crown” – “person in the service of the Crown” – Law Reform (Vicarious Liability) Act 1983 (NSW), s 8
DECISION UNDER APPEAL
 NSWSC 508;  NSWSC 842
[This headnote is not to be read as part of the judgment]
In October 1999, the appellant was appointed to act as an electorate officer in the electorate office of the State Member for Swansea, Mr Milton Orkopolous (the second respondent).
In these proceedings the appellant alleged that, whilst working in the second respondent’s office, she was bullied, victimised and harassed by him, causing her to suffer psychiatric harm which rendered her totally incapacitated for work. The primary judge found that the second respondent was liable for damages of $438,613.75 for breach of a duty of care owed to the appellant and that the appellant’s employer, The Speaker of the Legislative Assembly, was liable for modified common law damages under the Workers Compensation Act 1987 for breach of his duties as an employer. The primary judge held that the State of NSW (the first respondent) was not liable for the conduct of the second respondent.
The appellant appealed to the Court of Appeal, contending that the State should be held liable for the second respondent’s conduct under the Crown Proceedings Act 1988 or the Law Reform (Vicarious Liability) Act 1983 and that the damages payable by the second respondent should have been assessed on the basis that his conduct was intentional rather than negligent, thereby avoiding the limitations on damages imposed by the Civil Liability Act 2002. The appellant also claimed increased damages for non-economic loss and challenged a costs order.
The Court held:
(per Basten and Meagher JJA; Macfarlan JA agreeing save as to the costs order)
(i)The first respondent’s motion to review a decision that the appeal was not incompetent should be dismissed with the first respondent to pay the appellant’s costs of the notice of motion.
(per Basten, Macfarlan and Meagher JJA)
(ii)The primary judge correctly assessed damages against the second respondent in accordance with the limitations imposed by the Civil Liability Act 2002.
(per Basten and Macfarlan JJA, Meagher JA dissenting)
(iii)The State of NSW is liable for the tortious conduct of the second respondent as it occcured whilst the second respondent was acting “in the service of the Crown” pursuant to s 8(1) of the Law Reform (Vicarious Liability) Act 1983.
(per Basten JA; Macfarlan and Meagher JJA contra)
A Member of Parliament is involved in giving advice or consent on legislation, an essential part of the function of government, and is thereby performing a function incidental to an “activity of the Crown” within the meaning of s 8(1)(b) of the Law Reform (Vicarious Liability) Act 1983. As the tortious conduct of the second respondent was undertaken in his capacity as a Member of Parliament, the first respondent is liable for his misconduct.
(per Macfarlan JA; Basten JA not deciding; Meagher JA contra)
In supervising and controlling the appellant’s employment in his electoral office, the second respondent acted as the delegate of the appellant’s employer, The Speaker. As The Speaker was acting as part of the Executive Government of the State in employing the appellant, the second respondent, as his delegate, also so acted. The “Crown” at least includes the executive branch of government. Therefore the second respondent was acting in the “service of the Crown” pursuant to s 8(1) of the Law Reform (Vicarious Liability) Act 1983 when acting as The Speaker’s delegate.
(per Meagher JA; Macfarlan JA agreeing; Basten JA contra)
A Member of the Legislative Assembly, in discharging his or her legislative and parliamentary duties is not “a person in the service of the Crown” for the purposes of s 8(1) of the Law Reform (Vicarious Liability) Act 1983. The Member cannot be controlled, directed or interfered with by the State in the discharge of those functions.
(per Meagher JA; Basten JA not deciding; Macfarlan JA contra)
In supervising or controlling the appellant, the second respondent was not acting as the agent of The Speaker and thus was not acting “in the service of the Crown”.
(per Macfarlan and Meagher JJA, Basten JA dissenting)
(iv)The primary judge’s assessment of the severity of the appellant’s non-economic loss at 16 per cent of a most extreme case should not be disturbed as the appellant failed to show any error of principle or demonstrate that the primary judge’s assessment was wholly unreasonable.
(per Macfarlan JA, Basten and Meagher JJA agreeing)
(v)The primary judge’s order limiting the second respondent’s liability for costs at first instance to those relating to a half-day hearing should not be disturbed.
Brisbane Barrister – David Cormack