This article (Melissa Davey, ‘Owners of cars used by Victoria police as makeshift roadblock told to pay damage bill’, The Guardian (online), 12 January 2016) was sent to me some time ago for comment. The comment has been delayed both by holidays and by sheer disbelief.

If we assume that this is accurately reported then the police have stopped vehicles in order to block the road to stop a thief.   As a result the thief collided with the parked cars.

On this blog we have often discussed the law of negligence, which in turn requires discussion of a duty of care, breach and damage. With respect to fire and emergency services it has been argued that they do not owe a duty of care to individuals when say fighting fires, but that in turn assumes that they haven’t lit the fire. It’s different when you put people in harms way.

In this case the police are setting out to catch a thief and they may not necessarily owe a duty to others so that if, for example, the thief had injured people then there may be no liability for say failure to capture him (see Hill v Chief Constable of West Yorkshire [1989] AC 53).   But here they didn’t just fail to stop him; they put people in harms way.  It would be like directing people into a hostage situation in the hope that the increased numbers would overwhelm the hostage takers!

Police have no power to command people to take part in law enforcement actions but they do have the power to direct traffic for the ‘the safe and efficient regulation of traffic’ (Road Safety Road Rules 2009 (Vic) r 304). Drivers who are directed to stop and stay in their vehicle are unlikely to be in a position to decide whether that is a ‘reasonable’ direction or given for the purposes that are set out in the Rules. Most people will comply so here the police were in effect ordering people to put themselves at risk.   The liability for any harm is almost unquestionable and is certainly clear if people are injured (see Police Assistance Compensation Act 1968 (Vic)).

What is really interesting is the line, attributed to a police spokesperson that ‘as a police vehicle did not cause the damage to the woman’s car, the police insurance policy did not apply and the woman would receive no compensation.’   This again reflects the common misunderstanding that insurance somehow governs liability. The law determines where liability lies. If the ‘defendant’ has insurance they can look to the insurer to meet that liability, if there is no insurance then the defendant has to meet the liability for their own funds. If there is no insurance it does not mean that the person who suffers a loss doesn’t get compensation.

The other thing is that police are not like you and I who have insurance on our car. The police are part of the state and are insured by the Victorian Managed Insurance Authority (Victorian Managed Insurance Authority Act 1996 (Vic)). This authority will cover whatever liability police have. In short if, as I believe, Victoria Police will be liable if the facts are set out in this article are correct, then the Managed Insurance Authority will meet that liability. If for some reason the Authority does not meet the liability, then the police would have to meet the liability for their operational resources. It is not the case that a person who is directed to take part in a law enforcement action will not receive compensation just because there is ‘no’ insurance.