Date: Fri, 25 Jan 2008 00:02

From: Neil Foster

Subject: Witness immunity, vicarious liability

Dear Colleagues

Those interested in such matters might be interested in the recent decision of the NSW Court of Appeal in Commonwealth of Australia v Griffiths [2007] NSWCA 370 (14 Dec 2007). The Commonwealth were being sued for the actions of an analyst in the Australian Governmental Analytical Laboratories (AGAL), whose job was to report on the chemical composition of a substance suspected of being an illegal drug. Mr Ballard, the analyst, was found to have "fiddled" a report to produce the wrong result, leading to the wrongful conviction of Mr Griffiths, subsequently overturned on appeal. Mr Griffiths sued both Mr Ballard, and his employer AGAL, for damages in negligence, based on the 2 years he spent in jail before the conviction was over-turned. Ballard seems to have been careless or "overzealous", but not on the available evidence actually malicious.

The main issues were (1) could Ballard be sued or could he rely on the immunity afforded witnesses in judicial proceedings? and (2) if Ballard enjoyed the immunity, did that immunity protect his employer AGAL who would otherwise be vicariously liable? (There was also a brief consideration of the question whether even if the immunity as such did not apply, either Ballard or AGAL would owe a duty of care, and this was answered in the negative based on Sullivan v Moody - see [123]-131]. Australians may also be interested in the discussion of the question whether the actions of AGAL could be described as being in "trade and commerce" for the purposes of s 52 of the Trade Practices Act 1974 - held, not: [132]-[142]. But both these discussion were brief given the conclusions reached on the immunity issues.)

The whole Court agreed on the answers (Beazley JA giving the main judgement, Mason P concurring, Young CJ in Equity also agreeing but sensibly noting that many members of the community might be justifiably concerned that there was no legal remedy for someone in Mr Griffith's position).

(1) The principles of immunity of witnesses in judicial proceedings were held to extend to a person engaged in "pre-trial" investigation and analysis like Mr Ballard. English decisions were analysed in some detail, and the questions raised by the House of Lords in Darker v CC West Midlands [2001] 1 AC 435 considered, especially as to how the principle applies where there has been deliberate fabrication of evidence. But essentially the CA were obliged to apply the principles the HCA set down in D'Orta-Ekeniake v Victoria Legal Aid (2005) 223 CLR 1, where there is a general reference to a witness being immune even in "preparatory steps" of litigation - see [47]. Here there seems no doubt that the purpose of the analysis from the outset was possible litigation - see [92].

(2) Perhaps the more interesting theoretical question was whether this witness immunity that attached to Ballard also attached to his employer, and some comment was made from [100] onwards on the vexed issue of "servant's tort" or "master's tort" theories of vicarious liability. The overall discussion came down in conclusion that the "servant's tort" theory was the one usually applied today, and the result was that an immunity which applied to a servant's liability, would hence transfer to the master's liability. (Again, though, those who hold to this theory have to account for Broom v Morgan where the court held that the immunity of a husband from suit by a wife would not protect the husband's employer. Young CJ in Equity argued that this was what he called a "personal factor" and is an exception to the general rule - see [153].)

My view is that was not necessary to resolve this debate for the purposes of this litigation. Even if one assumed the "master's tort" theory and attributes to the master the actions of the servant, then we are left effectively with the question: if AGAL as a corporate body were called on to conduct the analysis of a substance for trial, would they enjoy witness immunity? I can see no reason why they wouldn't. This reasoning led Beazley JA at [117]-[122] to conclude that AGAL in any event enjoyed "direct" witness immunity. To my mind it is just a bit odd that her Honour didn't tie this more closely to the somewhat convoluted earlier discussion of the nature of vicarious liability.

Regards
Neil F

Neil Foster
Senior Lecturer, LLB Program Co-ordinator
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

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