Some injured activists have been pursuing their legal rights under civil law to ensure that the actions of police officers are held accountable.
Suing the police if you are injured has benefits and limitations. On the one hand, litigation allows protestors to challenge the lawfulness of the use of force during demonstrations and protests by bringing a case before judges and juries for adjudication. It also allows injured protestors to obtain compensation for their injuries and medical expenses. Litigation often attracts media attention, and can help raise public awareness about a social issue. In some special cases, courts may award exemplary or punitive damages if the acts of the police officers are particularly dangerous and abusive of human rights.
On the downside, suing the police can be long and arduous because of the public resources at the disposal of the Victoria Police and the State of Victoria. There are also technical legal arguments which can complicate who is ultimately responsible for the actions of police officers. In addition, the remedies available in a court are often limited - you can't get an apology, or an enforceable commitment from the police not to behave in the same way again.
For a detailed report on Civil Litigation against police see: Civil Litigation by Citizens Against Australian Police Between 1994 and 2002 by Dr Jude McCulloch and Mr Darren Palmer, Deakin University (19/01-02) at the Criminology Research Council http://www.aic.gov.au
The use of force or violence by one person against another person is unlawful according to common law, without a reasonable excuse.
Unlawful use of force or violence attracts criminal penalties, depending on the level of force or violence used.
Such misbehaviour can also attract civil penalties: that is, the right of an individual to sue for loss, injury and damage as a consequence of any injury caused by the perpetrator of that force or violence.
The use of force by police officers may be unlawful if it is not justified at all in the circumstances of the protest or demonstration. It may also be unlawful if the amount of force used is excessive and dangerous.
The Victoria Police Manual provides guidance about Victoria Police policy regarding the use of force. The philosophy said to apply to the planning, implementation and evaluation of all police operations is that the success of an operation should be primarily judged "by the extent to which the use of force is avoided or minimised". (Victoria Police Manual, Instruction 101.1 Operational Safety Principles).
The policy emphasises a range of response options which do not require the use of force and avoid confrontation.
If the force used by a police officer is not reasonable and/or breaches Victoria Police guidelines and the common law, a person injured as a consequence of that force may be entitled to sue the police officer and the officer's employer (generally the State or Federal Government) in tort.
In order to be successful in a claim for compensation you must prove on the balance of probabilities that the incident giving rise to the cause of action occurred, and that it caused your injury. If you succeed in your claim, the amount of compensation you will be awarded depends on the seriousness and ongoing nature of your injury.
In recent years there have been well-reported cases where activists have successfully sued the police for infringements to their civil and human rights (for example, the Richmond Secondary College Protests.)
Recently the State government introduced changes to the law that now make it more difficult for all people who are injured to pursue their rights to compensation based on a negligence claim. This includes people who have been injured during protests and demonstrations.
If you have been injured, in order to have a right to sue for compensation in negligence, you must first establish that you have been significantly injured. You must prove that your physical injury is a permanent disability, which impairs your whole body function by more than 5%. You must prove that your psychological injury has caused an impairment to more than 10% of your mental functioning. A qualified doctor must assess your level of impairment according to the American Medical Association Guides and other guidelines that determine impairment levels. If you cannot prove significant injury, you will be unable to pursue compensation.
Soft tissue injuries such as bruises and scratches will be unlikely to exceed the 5% physical impairment threshold. A bit of stress, which lasts 1-2 days will be unlikely to exceed the 10% mental impairment threshold. However, ongoing physical and psychiatric injuries may satisfy the requirement of significant injury.
Where you are unsure about the seriousness of your injury, do not rely on your own assessment or that of your local doctor. Consider consulting with an expert personal injuries lawyer to provide you with advice about your rights to sue. They may arrange for you to be assessed by an expert doctor.
If you can establish on the balance of probabilities that the acts of the police officers who injured you amounted to “an act of violence” as defined in the Victims of Crime Assistance Tribunal Act1996 (Vic), you may be able to pursue an award of “victims of crime assistance”. The awarding of assistance is administered by the Victims of Crime Assistance Tribunal.
To obtain claim forms, contact:
For assault and battery, negligence and misfeasance claims for compensation you must start formal legal proceedings by filing a writ in a court within three years of sustaining the injury. If you are an infant or suffer a disability, the time period is six years. For a victim of crime application you must submit a claim form within two years of the crime.
If you do not file the claims within these deadlines you may lose your right to pursue compensation. Only in some very limited circumstances will courts extend the applicable time limit.