Suing Police or other Authorities - WA

Tort law is a branch of civil law that deals with wrongs and injuries one party causes to another, whether that party is an individual or an institution. Its primary aim is to compensate those harmed by the wrongful actions of others and to deter future misconduct.

Tort law covers a wide range of issues, from personal injury to defamation, and plays a key role in maintaining social order by ensuring that individuals and institutions are held accountable for their actions. Intentional torts are one category within this area of law.

As a fundamental part of the legal system, tort law helps regulate interactions between people in an ordered and civilised society. It also serves as an important safeguard against the misuse of powers granted by Parliament to law enforcement and other statutory bodies.

Intentional torts arise when a person deliberately or unlawfully interferes with another’s fundamental rights, such as through assault, battery, or false imprisonment.

Assault occurs when someone intentionally creates a reasonable apprehension of imminent harmful or offensive contact in another person. Unlike battery, assault does not require physical contact—the mere threat is sufficient.

Battery involves intentional and unlawful physical contact with another person without their consent. It is not necessary to show that the victim suffered harm beyond the violation of their right to bodily integrity (Williams v Milotin (1957) 97 CLR 465 at 474). The purpose of battery is to protect individuals from unwanted physical interference and ensure their bodily integrity is respected.

Common defences to assault and battery include consent, self-defence, and defence of others. For example, if the plaintiff consented to the contact, such as during a sports game, the defendant may not be liable.

False imprisonment is the unlawful restriction of a person’s freedom of movement. It occurs when someone is confined to a bounded area without legal authority or the person’s consent.

In cases involving intentional torts such as assault, battery, and false imprisonment, damages are assessed based on several factors:

• General Damages: Compensate for non-monetary losses, including pain and suffering or loss of enjoyment of life. These are difficult to quantify and are determined by the severity of the harm and its impact on the victim’s life.
• Compensatory Damages: Cover actual, measurable losses such as medical expenses, lost wages, and pain and suffering, with the goal of restoring the victim to their pre-incident position.
• Aggravated Damages: Awarded when the defendant’s conduct was particularly humiliating, violent, or malicious, causing additional emotional distress. These damages compensate for the heightened distress or indignity suffered.
• Exemplary Damages: Also called punitive damages, these are designed to punish the defendant for egregious or reckless behaviour and to deter similar conduct in the future. They go beyond mere compensation and are reserved for especially outrageous actions.

While there are some variations between the States and Territories, in Australia, police generally cannot arrest a person without a warrant unless the officer reasonably suspects that the person has committed an offence and the arrest is reasonably necessary for one of the purposes outlined in legislation (for example, s 212(1)(b) of the Crimes Act 1900 (ACT) and s 99(1)(b) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)).

An arrest must also be carried out for the purpose of commencing proceedings, typically a prosecution (see NSW v Robinson [2019] HCA 46). Police do not have a general power to arrest someone solely for investigation or questioning (see Williams v R (1986) 161 CLR 278), and such an arrest would be unlawful.

If an arrest is unlawful, the subsequent detention may constitute false imprisonment, and actions taken during this period may also give rise to claims for compensation. For example, if an unlawful arrest occurs, a person may be entitled to damages for:

• Assault, if the officer reached out to grab them.

• Battery, if they were physically restrained, such as being handcuffed.

• False imprisonment, if they were placed in a cell.

In such cases, damages could include general, aggravated, or exemplary damages, depending on the circumstances.

Even when an officer reasonably suspects that an offence has been committed and the arrest is legally justified, compensation may still be awarded if excessive force is used during the arrest—for example, by striking the person or using a firearm or Taser.

Seeking legal advice from Hugo Law Group is essential for claims involving intentional torts, given the complexity and unique circumstances of each case. Intentional tort claims are subject to strict statutory time limits, so timely legal guidance is critical.

We can assist with identifying the specific tort, collecting necessary evidence, and navigating the legal processes. Our team provides expert advice on the merits of the case, potential defences, and the prospects of success and compensation.

At Hugo Law Group, we are committed to helping those who have been wronged pursue maximum compensation and achieve justice.

The law does not allow you to sue the individual officer or the WA Police Force directly. Any claim must instead be made against the State of Western Australia.

Because you are bringing a claim against the State, the onus of proof is on you. You must prove the elements of the tort on the balance of probabilities.

Claims against the State are generally heard in the District or Supreme Court of Western Australia.

As this is a civil matter, a limitation period applies. If you believe you have been a victim of battery, you must bring your claim within three years of the alleged incident.

Alleging Battery by a Police Officer in Western Australia

If you believe that a police officer’s conduct amounts to battery, you must prove that:

• The officer physically touched you.

• The touching was likely to cause injury.

• The touching was unlawful.

Once these elements are established, the State of Western Australia may attempt to show that the touching was not intentional or negligent. If the State proves this on the balance of probabilities, you would then need to provide evidence to disprove their claim.

What does “balance of probabilities” mean?

The balance of probabilities is the standard of proof in civil cases. To meet this standard, you must convince the court that your version of events is more likely than not to be correct.

What is a “limitation period”?

A limitation period is the time within which you must bring your claim to court, as defined by law. If you do not file your claim within this period, your claim will generally expire, meaning you cannot sue the State unless exceptional circumstances exist.

Under Western Australian law, the limitation period for battery claims is generally 6 years from when the cause of action arises, in accordance with the Limitation Act 2005 (WA).

When is a police officer’s touching “unlawful”?

A police officer may only use reasonable force where it is necessary in the circumstances. What is reasonable depends on the situation. For example, it would be unreasonable for an officer to tackle someone who is not resisting arrest or fleeing, and in such cases, the touching may be unlawful.

What does “negligent” mean?

An officer is negligent if a reasonable person in the same circumstances would have known that the officer’s actions were likely to result in unlawful physical contact.

Process for suing the State

When suing the State, you are starting a civil claim, which requires filing specific forms and paying associated fees. It is important to obtain legal advice, as filing the incorrect forms can result in your claim being dismissed.

Once your documents are filed, the State typically has 28 days to respond. The case may then be resolved through:

• Mediation or settlement conferences,

• A trial (hearing), or

• A combination of both.

What will mediation and settlement conferences involve?

Mediation occurs when both parties attempt to resolve the matter outside of court. The court may also order mediation. During mediation:

• Legal representatives from both sides meet formally.

• The goal is to reach a resolution acceptable to both parties.

• If successful, a Consent Judgment may be submitted to the court.

Mediation is generally faster and less costly than a trial. If mediation fails, the case proceeds to a hearing.

What will a trial involve?

At a trial (or hearing):

1. Plaintiff’s case: You present evidence and may call witnesses.

2. Defendant’s case: The State presents its evidence and witnesses.

3. Rebuttal: You may respond to the State’s evidence.

4. Final submissions: Both parties make concluding arguments.

5. Verdict and judgment: The judge delivers a decision.

Damages that can be sought

Damages (compensation) may be awarded for harm or loss suffered. Depending on the circumstances, these may include:

• General damages: Compensate for non-monetary losses such as distress, loss of liberty, humiliation, or damage to reputation, as well as lost wages.

• Aggravated damages: Compensate for additional harm caused by serious misconduct, such as maltreatment or lack of remorse.

• Exemplary damages: Punitive damages intended to punish the defendant and deter similar conduct in the future.

• Special damages: Recoverable costs arising from previous proceedings, including lost wages, legal fees, and other quantifiable expenses.

Will I be compensated for legal costs when suing the police?

If your case proceeds to a hearing, the court may order the losing party to pay a significant portion of the winning party’s legal costs. This means:

• If you win, the State may be required to cover part of your legal fees.

• If you lose, you may be required to pay a portion of the State’s legal costs.

The law does not allow you to sue the individual officer or the WA Police Force directly. Instead, any claim must be brought against the State of Western Australia.

Because you are suing the State, the onus of proof is on you. You must establish the elements of the tort on the balance of probabilities.

Claims against the State are generally heard in the District or Supreme Court of Western Australia.

As this is a civil matter, a limitation period applies. If you believe you have been falsely imprisoned or wrongfully arrested, you must bring your claim within three years of the alleged conduct, in accordance with the Limitation Act 2005 (WA).

Alleging False Imprisonment or Wrongful Arrest in Western Australia

If you believe you have been falsely imprisoned or wrongfully arrested by a police officer, you must prove that:

• The officer intentionally deprived you of your liberty.

• Your detention was unlawful.

What does “balance of probabilities” mean?

The balance of probabilities is the standard of proof in civil cases. You must convince the court that your version of events is more likely than not to be correct.

What is a “limitation period”?

A limitation period is the time within which you must bring your claim to court. If you do not file your claim within this period, your claim will generally expire, meaning you cannot pursue the action unless exceptional circumstances exist.

Under Western Australian law, the limitation period for false imprisonment or wrongful arrest claims is generally three years from the date of the alleged incident (Limitation Act 2005 (WA).

When does deprivation of liberty occur?

To prove false imprisonment, you must show that your freedom to move was completely restrained. Examples include:

• Being handcuffed and told you are under arrest.

• Being told you are not free to leave.

• Being placed in a police cell or vehicle.

When is detention unlawful?

Police may only arrest and detain you if certain legal conditions are met. If these conditions are not satisfied, the arrest is unlawful. It is therefore important to seek legal advice to determine whether your detention was lawful.

Note: Once you prove that the officer intentionally deprived you of your liberty, the burden shifts to the State to prove that your detention was lawful. However, strengthening your case by showing it was unlawful can improve your chances of success.

Process for suing the State

Suing the State is a civil action, meaning you are initiating the claim. This requires filing specific forms and paying fees. Filing incorrect forms may result in your claim being dismissed, so legal advice is highly recommended.

Once filed, the State typically has 28 days to respond. Your case may then be resolved through:

• Mediation or settlement conferences,

• A trial (hearing), or

• A combination of both.

Mediation and settlement conferences

Mediation occurs when both parties try to resolve the matter outside of court. The court may also order mediation. During mediation:

• Legal representatives from both sides meet formally.

• The goal is to reach an agreement acceptable to both parties.

• If successful, a Consent Judgment is submitted to the court.

Mediation is usually faster and less expensive than a trial. If it fails, the case proceeds to a hearing.

Trial process

At a trial (hearing):

1. Plaintiff’s case: You present evidence and call witnesses.

2. Defendant’s case: The State presents evidence and witnesses.

3. Rebuttal: You may respond to the State’s evidence.

4. Final submissions: Both sides make concluding arguments.

5. Verdict and judgment: The judge delivers a decision.

Damages (compensation)

Depending on the circumstances, you may be entitled to:

• General damages: Compensate for non-monetary losses, including distress, loss of liberty, humiliation, reputational harm, and lost earnings.

• Aggravated damages: Compensate for additional harm caused by serious misconduct, such as maltreatment or lack of remorse.

• Exemplary damages: Punitive damages to punish the defendant and deter similar conduct.

• Special damages: Recoverable costs arising from previous proceedings, such as lost wages and legal fees.

Will I be compensated for legal costs when suing the police?

If your case proceeds to a hearing, the court may order the losing party to pay a significant portion of the winning party’s legal costs. This means:

• If you win, the State of Western Australia may be required to cover part of your legal fees.

• If you lose, you may be required to pay a portion of the State’s legal costs.

The law does not allow you to sue the individual prosecutor or the Office of the Director of Public Prosecutions. Instead, any claim must be made against the State of Western Australia.

As the plaintiff, you carry the onus of proof, meaning you must establish the elements of this tort on the balance of probabilities.

Claims of malicious prosecution are generally heard in the District or Supreme Court of Western Australia.

Because this is a civil matter, a limitation period applies. If you believe you have been maliciously prosecuted, you must bring your claim within six years of the alleged conduct, in accordance with the Limitation Act 2005 (WA).

If you are alleging malicious prosecution in Western Australia

If you believe you have been maliciously prosecuted, you must prove that:

• The prosecutor initiated or maintained criminal proceedings against you;

• The proceedings terminated in your favour;

• The prosecutor acted without reasonable and probable cause; and

• The prosecutor acted maliciously.

What does ‘balance of probabilities’ mean?

The balance of probabilities is the standard of proof in civil cases. To meet this standard, you must convince the Court that your version of events is more likely than not correct.

hat is a ‘limitation period’?

A limitation period is the time within which you must commence your claim in Court. If you do not bring your claim within this period, it may expire and you will generally not be able to sue the State unless exceptional circumstances exist.

In Western Australia, the limitation period for malicious prosecution is 6 years.

What does ‘terminated in my favour’ mean?

Criminal proceedings are considered to have terminated in your favour if they did not result in a conviction. Examples include:

• Being found not guilty or acquitted;

• A Magistrate refusing to commit you to trial; or

• Your proceedings being discontinued or dismissed.

What does ‘without reasonable and probable cause’ mean?

This means the prosecutor commenced or continued proceedings even though they did not honestly believe that the evidence was sufficient to support the charges

What does ‘maliciously’ mean?

To prove malice, you must show that the prosecutor’s actions were not motivated by a desire to achieve justice, but rather by ill intent or bad faith, with the purpose of causing you harm. Proving malice can be challenging, as it often requires evidence of the prosecutor’s actual intent.

Who is the ‘prosecutor’?

Identifying the correct prosecutor is crucial. In WA, this could be:

• The Officer in Charge of the investigation, or

• The Director of Public Prosecutions (DPP).

The person bringing the claim must identify, with evidence, which individuals were responsible for initiating or maintaining the prosecution.

What is the process for suing the State?

Because you are suing the State of Western Australia, you are the plaintiff in a civil claim. Forms and filing fees must be completed and paid correctly, so legal advice is strongly recommended to avoid your matter being dismissed.

After filing, the State has 28 days to respond. Your case may then proceed through:

• Mediation or settlement conferences, or

• A trial (hearing), or

• A combination of both.

What will mediation and settlement conferences involve?

Mediation occurs when both parties agree—or are ordered by the Court—to try resolving the matter outside of court.

• Legal representatives from both sides attempt to reach a mutually acceptable outcome.

• If successful, a Consent Judgment is submitted to the Court.

• This process is generally cheaper and faster than a trial.

• If mediation fails, the matter returns to Court for a hearing.

What will a trial involve?

At a trial (or hearing):

1. Plaintiff opens their case, calling witnesses and presenting evidence.

2. Defendant opens their case, calling witnesses and presenting evidence.

3. Plaintiff may respond to the defendant’s evidence.

4. Both parties make final submissions.

5. The judge delivers the verdict and judgment.

Damages that can be sought

Damages, or compensation, may include:

• General damages – for consequences such as loss of earnings, distress, loss of liberty, humiliation, and damage to reputation.

• Aggravated damages – for additional harm caused by particularly serious misconduct, maltreatment, or lack of remorse.

• Exemplary damages – to punish the defendant for egregious disregard of your rights.

• Special damages – for specific financial losses, such as legal costs or lost wages, often arising from the original criminal proceedings.

Will I be compensated for legal costs associated with suing the police?

If your claim is resolved by way of a hearing, the Court may order the losing party to pay a significant portion of the winning party’s legal costs.

• If you win, the State of Western Australia may be required to pay a portion of your legal fees.

• If you lose, you may be required to pay a portion of the State’s legal costs.