Australian Capital Territory v Crowley

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THE AUSTRALIAN CAPITAL TERRITORY v JONATHAN ANTHONY CROWLEY AND THE COMMONWEALTH OF AUSTRALIA AND GLEN PITKETHLY
[2012] ACTCA 52

PRACTICE AND PROCEDURE – Appeals – where first instance decision delivered two years after conclusion of trial – circumstances in which open to appeal court to review findings of fact.

TORTS – Negligence – where plaintiff mentally ill and wielding kendo stick as weapon in public – where plaintiff shot by police officer – where plaintiff conceded police officer not negligent in discharge of weapon – whether duty of care owed by police to plaintiff – consideration of scope and application of police immunity from civil liability – whether breach of duty.

Held: Appeal allowed. The police did not owe the plaintiff a duty of care.

TORTS – Negligence – liability of statutory authority – whether ACT Mental Health owed duty of care to plaintiff – where plaintiff seen by ACT Mental Health for purposes of determining possible involuntary detention under subs 37(2) of Mental Health (Treatment and Care) Act 1994 (ACT) – where plaintiff not admitted to approved health facility – characterisation of duty of care – whether ACT Mental Health under duty to exercise statutory power to detain – whether breach of duty.

Held: Appeal allowed. ACT Mental Health owed the plaintiff a duty of care to follow up mental health assessment; however, ACT Mental Health did not breach this duty.

Australian Federal Police Act 1979 (Cth) ss 4, 6, 64B

Crimes Act 1900 (Part 8)
Evidence Act 1995 (Cth) ss 4, 79

Mental Health (Treatment and Care) Act 1994 ss 9, 12, 13, 14, 15, 17, 18, 23, 25, 26, 27, 28, 37, 40, 41

Public Sector Management Act 1994 (ACT) 

Supreme Court Act 1933 (ACT) Part 2A

Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, cited
Alexandrou v Oxford [1993] 4 All ER 328, cited
Australian Securities and Investments Commission v Vines (2003) 48 ACSR 291, cited
Brodie v Singleton Shire Council (2001) 206 CLR 512, cited
Brooks v Commissioner of Police of the Metropolis (2005) 1 WLR 1495, cited
Calveley v The Chief Constable of Merseyside Police [1989] AC 1228, cited
Clark v Ryan (1960) 103 CLR 486, cited
Cran v State of New South Wales (2004) 62 NSWLR 95, cited
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1, cited
D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1, cited
Everett v Griffiths [1920] 3 KB 163, cited
Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, cited
GAL No. 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390, cited
Gibbs v Commonwealth of Police [2000] QCA 33, cited
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, cited
Halech v South Australia (2006) 93 SASR 427, cited
Hamilton v Whitehead (1988) 166 CLR 121, cited
Hill v Chief Constable of West Yorkshire [1989] AC 53

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Details
Case
[2012] ACTCA 52
Decision Date

CaseChat Overview and Summary

The Australian Capital Territory Court of Appeal considered an appeal from a decision of Penfold J concerning the shooting of the plaintiff, Mr Crowley, by a police officer. Mr Crowley, who was mentally ill and wielding a kendo stick as a weapon in public, conceded that the police officer was not negligent in the discharge of the weapon. The central dispute revolved around whether the Australian Capital Territory, as the employer of the police officer, owed a duty of care to Mr Crowley and, if so, whether that duty had been breached.

The Court of Appeal was required to determine two primary legal issues. First, it had to consider the circumstances in which an appellate court may review findings of fact made by a trial judge, particularly where the first instance decision was delivered two years after the conclusion of the trial. Second, the Court had to examine the scope and application of police immunity from civil liability, and whether, in this specific context, a duty of care was owed by the police to Mr Crowley, and if so, whether that duty was breached.

In its reasoning, the Court of Appeal allowed the appeal, setting aside the orders made by Justice Penfold. The Court found that the trial judge had erred in her findings of fact and in her application of the law regarding the duty of care owed by police officers. The Court applied principles concerning the limited scope of police immunity and the specific circumstances in which a duty of care might arise, concluding that no such duty was breached in this instance. Consequently, judgment was entered in favour of the Australian Capital Territory, and Mr Crowley was ordered to pay the second defendant's costs of the trial, with the Australian Capital Territory also to pay the appellant's costs of the appeal.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders made by the Honourable Justice Penfold on 10 June 2011 (“the said orders”) be set aside.

3. In lieu of the said orders there be orders as follows:

(a) that judgment be entered in favour of the second defendant against the plaintiff; and

(b) the plaintiff pay the second defendant’s costs of the trial.

4. The first respondent pay the appellant’s costs of the appeal to be agreed or taxed including the costs of the Notice of Contention.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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