Caridi v State of Victoria (Ruling)
[2023] VCC 1708
•28 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-21-02752
| FRANK CARIDI | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 August 2023 | |
DATE OF RULING: | 28 September 2023 | |
CASE MAY BE CITED AS: | Caridi v State of Victoria (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1708 | |
RULING
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Subject:ACCIDENT COMPENSATION
Catchwords: Summary judgment – whether pleaded claim certain to fail – whether compensation for personal injury available for operational decisions by Victoria Police – pleadings – application to strike out parts of a statement of claim – whether cause of action limited by the grant of serious injury
Legislation Cited: County Court Civil Procedure Rules 2018; Civil Procedure Act 2010; Victoria Police Act 2013; Accident Compensation Act 1985; Crown Proceedings Act 1958; Road Safety Act 1986; Occupational Health and Safety Act 2004; Police Regulations Act 1958; Public Interest Disclosure Act 2012; Corrections Act 1986; Wrongs Act 1958; Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Uber Australia Pty Ltd v Andrianakis [2020] VSCA 186; Sarto v Sarto [2021] VSC 295; Healy & Ors v Bird & Anor [2022] VSC 823; Lysaght Building Solutions Pty Ltd (trading as Highline Commercial Construction ACN 103 232 444) v Blanalko Pty Ltd (ACN 005 822 926 (2013) 42 VR 27; New South Wales v Fahy (2007) 232 CLR 486; Sullivan v Moody & Ors (2001) 207 CLR 562; Hill v Chief Constable of West Yorkshire [1989] AC 53; Van Coole v Chief Constable of the Hertfordshire Police [2009] 1 AC 225; Gesah v Alistair Ross & Ors [2013] VSC 165; Smith v State of Victoria (2018) 56 VR 332; Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 260; Hegarty v Queensland Ambulance Servants [2007] QCA 366; Belgrave Heights Christian School v Diane Moore [2020] VSCA 240
Ruling: Application for summary judgment refused. Leave given to the plaintiff to provide a further proposed amended statement of claim.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with Ms O Callahan | Arnold Dallas McPherson |
| For the Defendant | Mr J Rush AO RFD KC with Ms G Cooper | Wisewould Mahony |
HIS HONOUR:
Introduction
1In this application,[1] the State of Victoria (“the defendant”) seeks Orders to strike out various paragraphs of the amended statement of claim or for summary judgment be given in its favour.
[1] Brought by amended summons dated 1 August 2023.
2To understand the basis for the defendant’s application, it is necessary to set out the background facts and the iterations of the pleadings.
3I note that the defendant’s application proceeded on the basis that a (proposed) amended statement of claim, as articulated on 24 August 2023 and filed on 25 August 2023 (“the amended statement of claim”), was the pleading objected to by the defendant.
Background
4The proceeding before the Court is another chapter from the events infamously known as the “Bourke Street attack”, when James Gargasoulas (“Gargasoulas”) drove a vehicle through the Bourke Street Mall on 20 January 2017, killing six people and seriously injuring many others.
5The plaintiff in this proceeding, Frank Caridi (“the plaintiff”), was a sworn police officer at the date of the Bourke Street attack but he was not directly involved in the immediate police response to the Bourke Street attack.
6At the risk of over-simplification, the plaintiff commenced a common law proceeding (“the proceeding”) for damages against the State of Victoria in which he alleged negligence or breach of duty by the defendant that was a cause of psychiatric injury, loss, and damage to him.
7As I shall set out, the pleaded case evolved with time. The amended statement of claim pleaded various events before, after, or related to the Bourke Street attack and alleged a liability to the plaintiff for a police tort.
8The cause of action brought by the plaintiff against the defendant was described by his senior counsel to be akin to a proceeding in negligence brought by an employee against an employer.[2] That description is disputed by the defendant.
[2] Transcript (“T”) 33, Line (“L”) 30-31.
9In that context, the defendant applied by summons, pursuant to Rule 23.02 of the County Court Civil Procedure Rules 2018 (“the Rules”) to strike out paragraphs of the amended statement of claim. In the alternative, the defendant applied for summary judgment, pursuant to s62 of the Civil Procedure Act 2010 (“Civil Procedure Act”) and Rule 23.01 and 23.16 of the Rules.
10The Orders sought by the defendant are opposed by the plaintiff. The plaintiff still requires the leave of the Court to file the amended statement of claim.
A synopsis of the submissions
11First, a synopsis of the parties’ submissions, which I will expand upon as necessary.
12Central to the defendant’s application is the contention, as expressed in oral submissions by its senior counsel, that there is “a misconception in the submissions that are filed on behalf of the plaintiff… there is a reference to the employer duty of care. We just make the point… that this is a matter that has to be brought by police tort under s72 of the Police Act”.[3]
[3] T 8, L 25-31; T 9, L 1.
13In short, the defendant’s primary contention was that the pleaded case does not, and cannot, give rise to the duty of care.[4] It submitted that no amount of remedial work by the plaintiff to his pleading could ever frame a cause of action against it.
[4] T 24, L 6-7.
14As set out in the summons, the defendant submitted that the duty alleged by the plaintiff is not capable of being categorised as a duty that the superior officers held, while making operational decisions for the protection of the Victorian community. It said that the duty alleged was not sustainable at law, as the circumstance of psychiatric injury to the plaintiff was not a reasonably foreseeable event at the time of the operational decision-making. On that basis, it sought summary judgment. It also raised as an issue the extent of the grant of ‘serious injury’ and whether parts of the amended pleading should be struck out because they do not pertain to the serious injury for which leave was granted.
15In reply, senior counsel for the plaintiff described the proceeding before the Court as “an exceptional circumstance”[5] and one that was to be characterised as “akin to an employer and employee relationship” because “the duty that exists inferentially from the fact they are under the Accident Compensation Act and they have the entitlements under the Accident Compensation Act is that the – they are subject to the supervision and control of their seniors, subject to the rules, directions and – more so than the average employee rules and directions and the equipment which they have…”.[6]
[5] T 33, L 5.
[6] T 33, L 30-31; T 34, L 9-16.
16In that context, the plaintiff submitted that the defendant had an obligation because of the relationship between them. He said the cause of action alleged by him was arguable and should not be struck out because it was fact rich and a matter for determination at trial.[7]
[7]T 36, L 2-8.
17Further, the plaintiff submitted that the amended statement of claim was capable of being brought in the context of the grant of serious injury because the injuries alleged by him were part of a continuum.[8]
[8]T 31, L 16-18.
History of the proceeding
18The proceeding was commenced by writ and statement of claim filed on 6 July 2021. The defendant filed a defence on 6 May 2022. On 15 July 2022, an order was made by consent that set the proceeding down for trial before a judge and jury on 14 July 2023. On 22 July 2022, the defendant served a notice of discovery on the plaintiff and on 9 January 2023, the defendant filed an affidavit of documents.
19This application was initially listed for summons on 5 May 2023. Ahead of the hearing, the Court was provided with an affidavit of the solicitor for the defendant dated 31 March 2023, an outline of the defendant’s submissions dated 24 April 2023 and a list of authorities dated 4 May 2023.
20At the hearing, Ms Callahan appeared for the plaintiff and Mr Rush AO RFD KC appeared with Ms Glass for the defendant. Counsel for the plaintiff informed the Court that an amended statement of claim had been prepared, but not yet filed. It was also noted that, while counsel for the plaintiff was prepared to meet the summons that day, the plaintiff sought leave to file the amended statement of claim and have the matter adjourned for further directions and timetabling, until such time as senior counsel was available to appear.
21The Court ordered that the plaintiff was to file and serve a proposed amended statement of claim by 4.00pm on 26 May 2023, as well as any submissions and list of authorities relevant to the summons by 4.00pm on 1 June 2023. The summons was adjourned part-heard to 2 June 2023.
22On 31 May 2023, the plaintiff filed and served a proposed amended statement of claim dated 29 May 2023. On 1 June 2023, the defendant’s solicitors sent correspondence to the Court indicating that the proposed amended statement of claim raised new issues and the defendant required time to properly investigate and consider those issues. An adjournment of the summons was therefore sought by consent. Orders were made adjourning the summons to 11 August 2023, along with relisting the proceeding for trial to 7 February 2024 and further timetabling Orders.
23Meanwhile, the plaintiff filed his affidavit of documents on 13 June 2023, and his outline of submissions and list of authorities on 28 July 2023. The defendant filed an amended summons on 1 August 2023, together with a supporting affidavit of their solicitor, an amended list of authorities and submissions, all dated 1 August 2023.
24Due to further issues regarding the availability of senior counsel retained on both sides, the application was adjourned once more and eventually heard on 24 August 2023.
25Regarding the issues raised for determination, I have considered the iterations of the pleadings, the authorities relied on by the parties and the written and oral submissions. Further, any reference to the amended statement of claim is a reference to the document that was filed on 31 May 2023 as amended at the commencement of the summons hearing on 24 August 2023 to delete various causes of action and as subsequently provided to the Court (reflecting the amendments) on 25 August 2023.
The pleaded case
26It is necessary to set out some iterations of the plaintiff’s pleadings,[9] including the draft pleading that accompanied the plaintiff’s serious injury application, both to provide context and to resolve the issues raised in this application.
[9] I have omitted the parts of the pleading that set out the claim for injury, loss and damage.
The draft statement of claim
27The first iteration of the pleading was the draft statement of claim that accompanied the plaintiff’s ‘Form A’ “serious injury” application. That document is exhibit “NBL‑1” to the affidavit of the solicitor for the defendant sworn 1 August 2023. It is necessary to set out the relevant paragraphs from it in full as follows:[10]
[10] The pleading (and subsequent versions) are set out in full in these reasons, save that the formal claim for damages is omitted as that part of the pleadings is not relevant to the summons.
“DRAFT STATEMENT OF CLAIM
...
1. On 20 January 2017, six people were fatally injured when the First Defendant drove a motor vehicle through the Bourke Street Mall and then along the footpath on Bourke Street between the Mall and William Street in Melbourne, in the State of Victoria (“the Bourke Street attack”).
2. The Second Defendant is sued pursuant to the provisions of the Crown Proceedings Act 1958.
3. At all material times, the Second Defendant appointed a Chief Commissioner and other officers to operate, control and manage Victoria Police (“the officers”).
4. At all material times, the Plaintiff was employed as a Sergeant in the Victoria Police, based at the South Melbourne station in the State of Victoria.
5. At all material times, the Plaintiff was owed a duty by the officers, on behalf of the Second Defendant, to provide him with a safe place of employment and take reasonable care to avoid exposing him to unnecessary risk of injury.
6. In the 24 hours prior to the Bourke Street attack, the Plaintiff, in the course of his employment as patrol supervisor for the South Melbourne and St Kilda divisional areas, warned the officers that the First Defendant presented a grave risk to public safety and should be apprehended by the Second Defendant.
7. The Plaintiff has suffered injury, loss and damage as a consequence of the negligence of the First Defendant in driving the motor vehicle.
PARTICULARS OF NEGLIGENCE OF THE FIRST DEFENDANT
(i)Driving in a reckless manger [sic];
(ii)Failing to steer, stop or slow down in order to avoid the attack;
(iii)Failing to apply any or any sufficient brakes to the vehicle so as to avoid the attack;
(iv)Failing to exercise reasonable care and skill in the driving and management of the vehicle;
(v)Driving the vehicle in a manner which caused it to cause six fatalities;
(vi)Creating a situation of danger and emergency;
(vii)Failing to comply with the Road Safety Act 1986 and the Regulations made thereunder.
8. Further and/or in the alternative, the Plaintiff has suffered injury, loss and damage as a consequence of the negligence of the Second Defendant.
PARTICULARS OF NEGLIGENCE OF THE SECOND DEFENDANT
(i)Failing to respond adequately or at all to the Plaintiff’s warning that the First Defendant presented a grave risk to public safety;
(j)Having been put on notice by the Plaintiff, failing to take any or any appropriate action to eliminate or minimise the risk posed by the First Defendant;
(k)Refusing the Plaintiff’s request to mobilise the Critical Incident Response Team to intercept and apprehend the First Defendant;
(l)Refusing the Plaintiff’s request to mobilise the Critical Incident Response Team to monitor the First Defendant;
(m)Exposing the Plaintiff to a foreseeable risk of psychiatric injury by showing reckless disregard for his warning that the First Defendant presented a grave risk to public safety;
(n)Failing to provide a safe system of work;
(o)Failing to take reasonable care for the Plaintiff in all the circumstances.
9. As a result of the Bourke Street attack, the Plaintiff has suffered a severe psychological injury and consequential loss and damage (“the injuries”).
PARTICULARS OF INJURIES
Psychiatric Injury;
Major Depressive Disorder;
Generalised Anxiety Disorder;
Post-Traumatic Stress Disorder.
…
AND THE PLAINTIFF CLAIMS DAMAGES”.
28The draft statement of claim named both Gargasoulas and the defendant as defendants to the proposed common law action.
The writ and statement of claim
29The next iteration of the pleading was the one filed when the proceeding was commenced by writ on 6 July 2021. Notably, the writ and statement of claim made no claim against Gargasoulas as foreshadowed in the draft statement of claim.
30Again, it is necessary to set the statement of claim out in full, as follows:
“STATEMENT OF CLAIM
1. The defendant:
(a)operates the police force in Victoria (Victoria Police);
(b)is and was at all relevant times capable of being sued pursuant to the laws of the State of Victoria, and is sued pursuant to:
(i)sections 22 and 23 of the Crown Proceedings Act 1958;
(ii)section 74 of the Victoria Police Act 2013 (VPA);
(iii)section 6 of the Occupational Health and Safety Act 2004;
(c)is liable for police torts pursuant to s 74 of the VPA.
2. The plaintiff, at all relevant times was:
(a)a sworn officer of Victoria Police;
(b)acting in the course of and within the scope of his duties;
(c)stationed at the South Melbourne Police Station.
3. At all relevant times there were police officers at Victoria Police responsible for supervising the plaintiff (the superior officers) and who owed a duty to the plaintiff to:
(a)take reasonable care for the plaintiff’s safety;
(b)have and enforce safe systems of work for the plaintiff;
(c)avoid exposing the plaintiff to reasonably foreseeable risks of injury while he was acting in the course of his duties as a police officer.
4. On 19 January 2017 the plaintiff became aware of the actions of James Gargasoulos (Gargasoulos) [sic] including the attempted murder of his brother.
5. The plaintiff was aware that Gargasoulos was erratic, psychotic and had the propensity to cause injury or death if not apprehended and so advised superior officers.
6. The plaintiff upon becoming aware of the locality of Gargasoulos in the early hours of 20 January 2017 sought involvement of the Critical Incident Response Team (CIRT) through the senior officers thereof to undertake the apprehension of Gargasoulos in a manner that was safe and without substantial [sic] risk to fellow officers and the public at large.
7. Despite providing comprehensive details to senior officers of CIRT in relation to the propensities of Gargasoulos and the need for a safe manner of apprehension of Gargasoulos the assistance as needed was not provided to the plaintiff for the apprehension of Gargasoulos.
8. Gargasolous [sic] later that morning drove a motor vehicle through the Bourke Street Mall and along the footpath of Bourke Street between the Mall and Williams [sic] Street killing 6 persons and seriously injuring many others (the Bourke Street attack).
9. The plaintiff upon becoming aware of the Bourke Street attack suffered injury.
PARTICULARS OF INJURY
Severe psychiatric injury
Major Depressive Disorder
Generalised Anxiety disorder
Post Traumatic Stress Disorder.
10. The injuries suffered by the plaintiff occurred as a consequence of the negligence of the defendant and in particular the Critical Incident Response Team and superior officers on duty on the night of 19 January 2017 and the morning of 20 January 2017.
PARTICULARS OF NEGLIGENCE
(a)Failing to respond adequately or to at all to the plaintiff’s warning that Gargasoulos presented a grave risk to public safety;
(b)Failing to take any or any appropriate action to eliminate or minimize the risk posed by Gargasoulos upon being advised of that risk by the plaintiff;
(c)Refusing the plaintiff’s request to mobilize Critical Incident Response Team to help intercept and apprehend Gargasoulos;
(d)Refusing the plaintiff’s request to mobilize Critical Incident Response Team to monitor Gargasoulos;
(e)Exposing the plaintiff to a foreseeable risk of psychiatric injury by showing disregard for his warnings that Gargasoulos presented a grave risk to public safety;
(f)Failing to provide a safe system of work;
(g)Failing to take reasonable care for the plaintiff in all circumstances;
(h)Failing to take the necessary steps to apprehend Gargasoulos before he committed acts of the nature which were warned of by the plaintiff.
11. As a consequence of the injury suffered by the plaintiff he has as [sic] suffered loss and damage.
…
AND THE PLAINTIFF CLAIMS Damages”
31The statement of claim was the pleading that prompted the defendant’s application. In my opinion, it bore a stark resemblance to the type of pleading that ordinarily is seen in a “garden variety” type claim for damages arising out of an industrial accident setting. It was acknowledged by counsel for the plaintiff on 5 May 2023 as one that needed amendment and hence leave was given to file a proposed amended statement of claim.
The amended statement of claim
32Next, in accordance with the Court Orders, the plaintiff filed and served the (proposed) amended statement of claim dated 29 May 2023. That prompted the defendant to amend the summons.
33The defendant, to some extent, was immediately successful in its application because, at the commencement of the summons hearing on 24 August 2023, senior counsel for the plaintiff sought to make further changes to the proposed pleading to delete any alleged causes of action relying on the Crown Proceedings Act 1958, the contract of employment, to remove allegations of “serious” misconduct and to remove references to the coronial inquest.
34The summons ultimately proceeded on the basis that the amended statement of claim as articulated on 24 August 2023 was the impugned pleading for the purpose of the defendant’s application. The amended version was ultimately provided to the Court on 25 August 2023.
35The pleaded case evolved with time. The defendant submitted that the evolution of the pleaded case “highlights the nature of the on-the-run way in which the plaintiff is attempting to present this case”.[11]
[11] T 10, L 12-13.
36Regardless, the approach to the plaintiff’s pleaded case highlights the often-overlooked object of pleadings, even more so in a case that raises complex or novel legal or factual issues, namely, to give notice and define issues.[12]
[12] Uber Australia Pty Ltd v Andrianakis [2020] VSCA 186 at [50].
37For completeness, the amended statement of claim (“the impugned pleading”) is set out as follows:
“AMENDED STATEMENT OF CLAIM
...
A. THE PARTIES
1. The defendant:
(a)operates the police force in Victoria (Victoria Police);
(b)is sued
pursuant to Part II of the Crown Proceedings Act 1958 andpursuant to section 72, 74 and 75 of the Victoria Police Act 2013 (Vic) (the Act).
2. The plaintiff, at all material times was:
(a)a sworn police officer within the meaning of the Police Regulations Act 1958 (Vic) and the Act;
(b)acting in the course of and within the scope of his duties;
(c)stationed at the South Melbourne Police Station.
B. DEFENDANT’S LIABILITY FOR POLICE TORTS
3. The Defendant is liable for a police tort by section 74(1) of the Act.
Pursuant to section 72 of the Act, a police tort is:
(a)A police tort is a tort committed by a police officer or protective services officer in the performance or purported performance of the officer’s duties (section 72(1)); and
(b)the extended meaning of a police tort includes:
(i)detrimental action taken by a police officer in reprisal for disclosure to which part 6 of the Public Interest Disclosure Act 2012 applies (section 72(2)(a)); and
(ii)any other prescribed action or conduct (section 72(2)(b)).
4. At all relevant times all superior officers of the Plaintiff (Superior Officers), including the Chief Commissioner of Police, and those engaged by in or under his command owed a duty to the Plaintiff to take reasonable care to avoid exposing him to unnecessary risks of injury including by providing a safe place of work for the Plaintiff and a proper and safe system of conducting his work in efficient supervision of such work.
THE SUPERIOR OFFICERS
MISCONDUCTThe Superior Officers included, inter alia, Assistant Commissioner Stephen Fontana, Acting Sergeant Kalev Jones (Critical Incident Response Team), Senior Sergeant Ronelle Quin, District Supervisor Acting Senior Sergeant Adrian Filzek, Senior Detective Tzeferemineos (South 541 Unit), Detective Toey (Divisional Crime Supervisor), Acting Inspector Dermot Avon, Acting Inspector Damian Jackson, Superintendent Civil Law Division Belinda Bales.
5. At all relevant times the Superior Officers owed a duty to the Plaintiff to:
(a)take reasonable care for the Plaintiff’s safety;
(b)have and enforce safe systems of work for the Plaintiff;
(c)avoid exposing the Plaintiff to reasonably foreseeable risks of injury while he was acting in the course of his duties as a Police Officer;
(d)appropriately manage risks and actively mitigate workplace safety issues while the Plaintiff was acting in the course of his duties as a Police Officer and arising out of the Plaintiff’s engagement in his duties;
(e)properly investigate complaints made by the Plaintiff in respect of the offender James Gargasoulas (Gargasoulas);
(f)properly investigate information relayed by the Plaintiff in respect of Gargasoulas;
(g)heed warnings made by the Plaintiff about the potential danger of Gargasoulas to members of Gargasoulas’ family and the public;
(h)provide adequate support to the Plaintiff in respect of concerns expressed by him in respect of Gargasoulas;
(i)make responsible and professional operational decisions based upon information provided by the Plaintiff;
(j)take reasonable steps to avoid the Plaintiff suffering from psychiatric injury by failing to act upon critical information provided to them in respect of the danger Gargasoulas represented to members of Gargasoulas’ family and the public;
(k)take all reasonable actions to investigate/act upon information provided by the Plaintiff that Gargasoulas was capable/intent upon causing harm to Gargasoulas’ family and members of the public;
(l)give proper consideration to suggestions/requests by the Plaintiff that Gargasoulas should be apprehended/arrested;
(m)take reasonable steps to protect the Plaintiff from suffering psychiatric injury given the information relayed by the Plaintiff which required the arrest of Gargasoulas so as to ensure he could not cause injury to members of Gargasoulas’ family and the public.
PARTICULARS
The Plaintiff refers to the Victoria Police Code of Conduct, Victoria Police Policy 2.3 Compulsory Police Action, the Victoria Police Mental Health Review, An Independent Review into the Mental Health and Wellbeing of Victoria Police Employees 2016, the Victoria Police Mental Health Strategy and Wellbeing Action Plan 2017 – 2020 and the Victoria Police 2017 Mental Health and Wellbeing Study Summary.
5. Further or in the alternative the Plaintiff carried out his duties as a police officer pursuant to a contract between him and Victoria Police.
PARTICULARS OF AGREEMENT
The Plaintiff refers to and repeats the particulars to paragraph 4 and says further that the contract contained express written terms as contained in the Victoria Police Academy Conditions of Employment for Police Recruits and various Victoria Police Force Enterprise Agreements as signed from time to time as follows:
On or about 18 November 2011, Chief Commissioner of Police Mr Ken Lay signed the Victoria Police Force Enterprise Agreement 2011 on behalf of the Victoria Police Force which has been amended from time to time and at which full particulars will be provided subsequent to discovery (the Agreement).
(n)It was an implied term of the Agreement that Victoria Police would take reasonable care for the safety of the Plaintiff and take reasonable care so as not to expose him to unnecessary risk of injury.
(o)It was an implied term of the Agreement that Victoria Police would take reasonable care to respond to the serious risk to mental health posed by the nature of the work undertaken by the Plaintiff in the course of his employment as a police officer.
C. CIRCUMSTANCES GIVING RISE TO THE CLAIM
6. The Plaintiff’s claim arises from:
(a)a series of events which occurred between 14 January 2017 and the early hours of 20 January 2017 (Antecedent Events) concerning the escalation of behaviour and offending of Gargasoulas;
(b)the events of 20 January 2017 at the Bourke Street Mall in Melbourne where Gargasoulas killed six people and seriously injured many others (Bourke Street Attack); and
(c)the police decisions and actions, including the failure to act, in response to the Antecedent Events and in the immediate hours and minutes leading up to the Bourke Street Attack, and the failure by police to apprehend Gargasoulas (Police Response); and
(d)the Plaintiff becoming aware of conduct by police members in relation to the Antecedent Events, the Bourke Street Attack and the Police Response, that the Plaintiff had reason to believe was
seriousmisconduct as defined in the Act; and(e)the action (including the failure to act) taken by police officers responsible for supervision of the Plaintiff towards the Plaintiff in the aftermath of the Antecedent Events and the Bourke Street Attack; and
(f)the actions of police officers, and the
seriousmisconduct of those police members in the period following 20 January 2017, of which the Plaintiff had reason to believe wasseriousmisconduct (Misconduct).
PARTICULARS
The Plaintiff refers to the Coronial Inquest into the deaths of Matthew Poh Chuan Si, Thalia Hakin, Yosuke Kanno, Jess Mudie, Zachary Matthew Bryant, Bhavita Patel, Coroner’s Court of Victoria, Findings into Deaths with Inquest of Coroner Jacqui Hawkins delivered on 19 November 2020 (2017 Bourke Street Inquest).PARTICULARS OF THE ANTECEDENT
EVENTS(a)On 14 January 2017, Victoria Police responded to a triple zero emergency call and attended the apartment of Gargasoulas’ Mother, Emily Gargasoulas.
(b)The 000 call was made at about 1:30pm on 14 January 2017 by Mark Scammel, a resident in an apartment block at Raleigh Street, Windsor. Mr Scammel reported that there was a ‘crisis’ with his neighbour Emily Gargasoulas, whereby Gargasoulas had threatened to kill the mother whilst he was armed with a knife.
(c)Gargasoulas was arrested without incident on account of:
(i) Outstanding warrants for his arrest;
(ii) A police whereabouts for multiple indictable offences from an incident on 19 November 2016; and
(iii) Pending charges arising from multiple indictable offences committed between 20 and 22 November 2016.
The Plaintiff refers to the 2017 Bourke Street Inquest, page 25, paragraphs 3.31 – 3.34.(d)Following the arrest Gargasoulas:
(i) was served with charges including intentionally causing injury, recklessly causing injury, unlawful assault, driving whilst disqualified and failing to answer bail arising from family violence offending of 31 October 2016 (Rea Charges);
(ii) was charged with recklessly engaging in conduct endangering death, reckless conduct endangering serious injury, dangerous driving, careless driving, failing to stop for police, driving on the wrong side of the road, driving whilst disqualified and willful damage to motor vehicle arising from offending of 19 November 2016 and between 18 and 21 November 2016 (Semmel Charges);
(iii) made admissions to Detective Senior Constable Gentner and was charged with robbery, theft of motor vehicle (x2), dangerous driving, burglary and theft (Gentner Charges).
The Plaintiff refers to the 2017 Bourke Street Inquest, pages 25 - 29, paragraphs 3.31 – 3.52.
D. POLICE RESPONSE
7. At all material times, Victoria Police held prior knowledge as to:
(i)the extensive and relevant prior criminal history of Gargasoulas, including prior convictions for violence and serious driving offences;
(ii)the ongoing and persistent criminal offending perpetrated by Gargasoulas in the period from 31 October 2016 until 20 January 2017;
(iii)the escalation of Gargasoulas’ criminal behavior between 15 and 19 January 2017;
(iv)Gargasoulas becoming increasingly mentally unwell, erratic and delusional between 15 and 19 January 2017; and
(v)the unacceptable risk posed to the community by Gargasoulas remaining at large.
(Prior Knowledge)
PARTICULARS
Gargasoulas’ prior criminal history spanned from 2007 and included a history of evading police and driving dangerously, drug and violence offences and custodial sentences.
The Plaintiff refers the 2017 Bourke Street Inquest, Parts three and four, which detail the prior criminal history, escalation of offending and criminal behaviour, and declining mental health of Gargasoulas.
8. Following Gargasoulas being granted bail on 14 January 2017 Detective Senior Constable Gentner:
(a)raised concerns with senior members of Victoria Police as to Gargasoulas being granted bail;
(b)made it his priority for the remainder of the week to ensure Gargasoulas was remanded prior to 20 January 2017; and
(c)took the view that he was certain that Gargasoulas would continue to re-offend.
9. Following Gargasoulas’ grant of bail, police officers at St Kilda police station were negligent in the performance of their duties and failed to:
(a)adequately check that Gargasoulas complied with the bail conditions imposed on Gargasoulas; and
(b)enforce the bail conditions where Gargasoulas did not comply with same;
(c)apprehend Gargasoulas for breaching bail conditions.
PARTICULARS
The Plaintiff refers to the 2017 Bourke Street Inquest, pages 50 – 56, paragraphs 3.182 – 3.233.
10. On 19 January 2017 the Plaintiff became aware of the escalating behaviour and danger posed by Gargasoulas, including the attempted murder of his brother.
11. The Plaintiff was aware that Gargasoulas was erratic, psychotic and had the propensity to cause injury or death if not apprehended and so advised various Superior Officers.
12. The Plaintiff upon becoming aware of the locality of Gargasoulas in the early hours of 20 January 2017 sought involvement of the Critical Incident Response Team through the senior officers thereof to undertake the apprehension of Gargasoulas in a manner that was safe and without substantial risk to fellow officers and the public at large.
13. Despite the Plaintiff providing comprehensive details to Superior Officers, including senior officers of the Critical Incident Response Team, in relation to the propensities of Gargasoulas and the need for a safe manner of apprehension of Gargasoulas, the assistance as needed was not provided to the Plaintiff for the apprehension of Gargasoulas.
14. Despite the Prior Knowledge, the Critical Incident Response Team and Superior Officers failed to heed the warnings of the Plaintiff as to the danger posed by Gargasoulas and failed to take action to apprehend Gargasoulas.
15. Gargasoulas later that morning drove a motor vehicle through the Bourke Street Mall and along the footpath of Bourke Street between the Mall and Williams Street and committed the offending of the Bourke Street Attack.
16. Subsequent to the Bourke Street Attack the Superior Officers knew or to [sic] have known that the Plaintiff without appropriate support and counselling including appropriate support at the Coronial Enquiry was likely to suffer injury loss and damage.
17. The Plaintiff subsequent to the Bourke Street Attack and as a consequence of the failure of Superior Officers to provide him adequate support and counselling suffered injury.
PARTICULARS OF INJURY
Severe psychiatric injury
Major Depressive Disorder
Generalised Anxiety disorder
Post Traumatic Stress Disorder
E. MISCONDUCT
18. Subsequent to the Bourke Street Attack, the Plaintiff had reason to believe that the conduct of police members in carrying out the Police Response was a failure which amounted to
seriousmisconduct pursuant to the Act.19. By reason of the Plaintiff’s belief as to the misconduct, the plaintiff was bound by section167(3) of the Act to report the conduct to a police officer of a more senior rank to the Plaintiff.
20. On the night of 20 January 2017, subsequent to the Bourke Street Attack, the Plaintiff returned to work and spoke to his supervisor, Acting Inspector Dermot Avon and during that conversation the Plaintiff:
(a)made complaint about the conduct of police officers in carrying out the Police Response;
(b)expressed dissatisfaction with the missed opportunity to arrest Gargasoulas because the Critical Incident Response team refused to attend and assist;
(c)stated that if/when he was called to give evidence at the Inquest, he would not sugar coat the incident and would give an accurate account; and
(d)verbalised his intent to criticise the actions of Victoria Police in any future public Inquest into the Bourke Street Attack.
21. On 22 January 2017, Acting Inspector Avon advised the Plaintiff he was to attend the office of the Professional Standards Command to be formally interviewed regarding an incident that had occurred months prior.
22. On 24 January 2017, the Plaintiff was interviewed by Acting Inspector Damien Jackson in relation to the incident.
PARTICULARS
The Plaintiff was given one day’s notice with minimal information as to the nature of the interview. The investigation concerned a ‘mugshot’ photograph taken by the Plaintiff of an offender, which was taken as a part of a routine process for photographing prisoners who are taken into custody pursuant to section 28 of the Corrections Act 1986. The Plaintiff provided an explanation in the interview fully justify [sic] his actions which were lawful in response to the incident.
23. Following the interview, the Plaintiff was subject to the disciplinary measure of being officially admonished.
24. By the official admonishment, the Plaintiff was subject to detrimental action taken against him in reprisal for his complaint under section 167 of the Act, which was detrimental action causing, comprising or involving:
(a)intimidation and harassment;
(b)discrimination, disadvantage and adverse treatment in relation to the Plaintiff’s employment; and
(c)disciplinary proceedings
arising from the Plaintiff’s complaint made pursuant to section 167 of the Act as to the misconduct, and contrary to section 173 of the Act.
25. The Plaintiff’s injuries referred to in paragraph 17 were exacerbated by the detrimental action taken against him and the Misconduct as set out above.
26. The injuries suffered by the Plaintiff occurred as a consequence of the negligence of Victoria Police and in particular the Superior Officers and those under their command in reacting adequately to the Plaintiff’s information and in not providing adequate and appropriate support and counselling subsequent to the Bourke Street Attack when it was known that the Plaintiff was at risk of psychiatric injury in the absence of such reaction.
27. The Defendant is liable for the Plaintiff’s injuries occasioned by police tort.
PARTICULARS OF NEGLIGENCE OF VICTORIA
POLICE GIVING RISE TO THE DEFENDANTS
LIABILITY FOR A POLICE TORT(a)Failing to respond adequately or to at all to the Plaintiff’s warnings that Gargasoulas presented a grave risk to public safety;
(b)Failing to take any or any appropriate action to eliminate or minimise the risk posed by Gargasoulas upon being advised of that risk by the Plaintiff;
(c)Refusing the Plaintiff’s request to mobilise the Critical Incident Response Team to help intercept and apprehend Gargasoulas;
(d)Refusing the Plaintiff’s request to mobilise the Critical Incident Response Team to monitor Gargasoulas;
(e)Exposing the Plaintiff to a foreseeable risk of psychiatric injury by showing disregard for his warnings that Gargasoulas presented a grave risk to public safety;
(f)Failing to provide a safe system of work;
(g)Failing to take reasonable care for the Plaintiff in all circumstances;
(h)Failing to take the necessary steps to apprehend Gargasoulas before he committed acts of the nature which were warned of by the Plaintiff;
(i)Failing to provide appropriate counselling and support to the Plaintiff subsequent to the Bourke Street Attack knowing that the Plaintiff was involved in the events associated with the Bourke Street Attack and had made reports and recommendations in respect thereto which were not responded to;
(j)Failing to provide to the Plaintiff any or any adequate support debrief and counselling including failing to arrange appropriate representation at the 2017 Bourke Street Inquest in relation to the events surrounding the Bourke Street Attack;
(k)Knowing that the Plaintiff by reason of the nature of his engagement up to the time of the Bourke Street Attack was at risk of significant psychiatric injury by reason of his engagement failing to take any or any adequate steps so as prevent and/or minimize the Plaintiff suffering injury as a consequence thereof.
28. As a consequence of the injury suffered by the Plaintiff he has
assuffered loss and damage.…
AND THE PLAINTIFF CLAIMS Damages”
Objection to the amended statement of claim
38The defendant sought to strike out many of the paragraphs in the amended statement of claim. The amendments that were announced in Court by senior counsel for the plaintiff on 24 August 2023 conceded some issues raised by the defendant. The objection to much of the pleading by the defendant can be considered by a broad-brush approach as to whether the pleading should be struck out pursuant to Rule 23.02, either because it does not disclose a cause of action, or because it is embarrassing.
39The amended statement of claim was a substantial change from the original. It provided more detail about the conduct of Victoria Police in the operational decisions made regarding Gargasoulas, including in the several days before the Bourke Street attack and how that was said to create a liability for a police tort. As pleaded, the plaintiff alleged that his claim arose from what is described in the pleading as the “Antecedent Events”, the “Bourke Street Attack” and “Police Response”.
40An immediate issue is exactly what is meant by “the plaintiff’s claim”. A fair reading of the pleading suggests he makes several claims in the alternative.
41Further, this is not a proceeding for a police tort in the general sense, but rather a proceeding brought by a police officer for injury claimed to have been suffered by him due to operational decisions made by other police officers and a duty said to have been owed to him when making those operational decisions. The nuance of that is not clear from the pleading. Several paragraphs appear to be general criticism of the defendant’s decision making in a vacuum of how those decisions relate to the plaintiff or create a liability for psychiatric injury suffered by him.
42First, at paragraphs 3-5, the plaintiff attempted to broadly raise, under the heading “Defendant’s Liability for Police Torts”, the duty he said was owed by the defendant to him. He set out, generally, aspects of the alleged duty, including aspects akin to an employer and employee relationship, which this is not. He then went on to set out a mix of material facts upon which the duty was said to have been owed to him by superior officers.
43But, in my opinion, in that section of the pleading he did not properly articulate the duty said to be owed to him. He also conflated duty with breach of duty.
44Second, at paragraph 6 under the heading “Circumstances Giving Rise to The Claim”, he pleaded various operational decisions in which he had no direct involvement. He set out various operational decisions that he presumably only became aware of after the Bourke Street attack. It is unclear how those pleaded facts relate to the alleged duty or breach of duty. It is unclear what is meant by “the claim”.
45Third, under the heading “Police Response”, the plaintiff again set out what may be capable of being described as material facts at paragraphs 7-9, in which he had no direct involvement. He then set out, at paragraphs 10-14, particulars of his knowledge of Gargasoulas and of information he provided to other police officers. This is then wrapped up at paragraphs 16-17 with an alleged claim for psychiatric injury because of a failure to provide him with adequate support and counselling after the Bourke Street attack. As pleaded, he alleged that without adequate support or counselling, he was “likely to suffer injury loss or damage”. Perhaps this is what he meant by “the claim”, although a generous reading of the pleading suggests it is only part of “the claim”.
46Fourth, the amended statement of claim went further than the events of the Bourke Street attack, as set out in paragraphs 18−26 under the heading of “Misconduct” (“the misconduct pleading”), to raise a claim in negligence based on what may be described as the defendant’s response to the Bourke Street attack and the management of the plaintiff after the Bourke Street attack.
47Pausing, the introduction of the misconduct pleading prompted an amendment to the defendant’s summons to add a preliminary issue as to whether the misconduct allegations had formed part of the plaintiff’s serious injury application.
48Fifth, paragraph 27 sets out a compendious set of particulars of negligence said to give rise to a liability to the plaintiff for a police tort. The particulars largely traverse several alleged failures by the defendant said to establish negligence, without any clear reference to the claim or claims to which the particulars relate. Several particulars are generic and meaningless without context or an attempt in the pleading to delineate the duty owed and how the alleged breach relates to the duty.
Consideration of the amended statement of claim
49As mentioned, the amended statement of claim was a substantial re-working of the original. On one view, it at least attempted to articulate the duty said to be owed and how it was alleged to have been breached.
50But, having considered the amended statement of claim, in the context of the challenge to it by the defendant, I consider that the amended statement of claim is embarrassing. In my view, it is a jumbled mess. The duty said to be owed is not properly articulated. The claim or claims are jumbled, and duty is conflated with breach. While it was a substantial change from the initial version, as I shall explain, in my view it remains an unsatisfactory pleading.
51First, and primarily, the basis of the plaintiff’s claim, or claims, against the defendant for an alleged police tort need to be clearly articulated.
52Second, the duty alleged to be owed needs to be clearly and logically expressed.
53Third, the alleged breach of duty also needs to be clearly expressed.
54Fourth, the plaintiff’s claim needs to be clearly expressed, including any alternate claims.
55Finally, all this should be done in a structured manner, including by the provision of necessary material facts and sufficient particulars, so that the defendant has sufficient notice of the relevant issues and to provide a defence to the proceeding.
56I accept the contention of the defendant that much of the statement of claim should be struck out.
Legal principles – strike out
57The view I have reached of the amended statement of claim is in the context of the applicable principles of pleadings, which are now well-known and not in dispute. They were recently discussed and summarised by Derham AsJ in Sarto v Sarto.[13] There is no need to set the principles out in full, but I concur with what was said in Sarto that the fact that a proceeding arises from a complex factual matrix does not detract from the pleading requirements. To the contrary, the requirements become more poignant.[14] I consider that statement to be apposite in the context of the iterations of the pleaded case in this proceeding. It has evolved “on the run”.
[13][2021] VSC 295 (“Sarto”).
[14] Ibid [43].
58An application brought under Rule 23.02 involves a challenge to the sufficiency of a pleading as distinct from the defendant’s primary contention, namely, that no amount of remedial work can disclose a valid claim. The power to strike out is discretionary. It should only be exercised if, based on the pleading, the “claim is so manifestly hopeless that a trial would be a futility”.[15]
[15] Healy & Ors v Bird & Anor [2022] VSC 823 at [27].
The plaintiff must re-plead
59There is merit in the defendant’s strike out application. It may be that no amount of remedial work can produce a valid pleading, but that is a decision I am not prepared to make at this stage. In the exercise of a discretion, in circumstances where the plaintiff has presumably left the task of drafting the statement of claim in the hands of his lawyers, he should be afforded one last opportunity to re-plead.
60In my opinion, the time has come for the plaintiff and his legal advisors to carefully consider how the duty is said to have arisen and how it is said to have been breached. The history of the pleaded case tends to the conclusion that thus far that has not occurred.
61There is no amount of remedial work that can save the amended statement of claim. Rather than try and amend in accordance with the requirements in the Rules, the plaintiff needs to start again with a blank page and produce a fresh pleading.
62But that is not the end of this application. Despite my decision that the plaintiff should be afforded an opportunity to re-plead, for completeness and relevant to the task of re-pleading, I shall consider the two remaining contentions of the defendant. First, whether any amount of remedial work can produce a pleading that would establish a duty owed to the plaintiff. Second, whether the misconduct pleading is outside the grant of serious injury.
Can there be a liability for a police tort?
63The first issue is whether the defendant owed a duty of care in the circumstances pleaded.
64The defendant contended that a duty of care was not owed in the circumstances pleaded because:
“The State is liable for police torts. A police tort is a tort committed by a police officer in the performance, or purported performance of the officer’s duties: section 72 VP Act. Accordingly, the Defendant will be liable for the tortious conduct of a police officer, where that conduct is carried out in the course of policing duties, and/or carrying out police functions or powers.”[16]
(Footnotes omitted.)
[16]Defendant’s submissions in support of application for strike out &/or summary judgment dated 1 August 2023, paragraph 17 (“Defendant’s submissions”).
65The defendant referred to several authorities which can broadly be described as examples of factual scenarios in which no duty of care had been found where citizens had suffered injury because of operational decisions made by police. As conceded in oral submission, the authorities the Court was taken to were not based on factual scenarios of police officers making reports to police officers.[17] But the defendant submitted that the same reasoning applied in relation to operational decision-making where the request for the decision or the report comes from a police officer.[18]
[17]T 21, L 28-31.
[18]T 22, L 1-7.
66In that context, the defendant submitted that a duty of care to investigate is not owed by police officers; the allegations pleaded were not sustainable as a matter of law; and the defendant’s primary contention is that the case as pleaded did not and cannot at law give rise to a duty of care.[19]
[19]T 24, L 1-7.
67On the other hand, the plaintiff submitted that the relationship between the plaintiff and the defendant in this proceeding is akin to an employer and employee relationship because of the degree of control, supervision, equipment, systems of work and the like.[20] Once it is arguable that the duty is akin to an employer and employee relationship then, on a strike out application, it is a matter that is “fact rich”[21] and a proceeding that may be brought for determination.[22]
[20] T 35, L 2-31.
[21] T 36, L 1-8.
[22] T 47, L 26-27.
Legislation
68Relevant to the resolution of the defendant’s application and the first issue, it is convenient to set out the relevant legislation.
Summary judgment
69Firstly, the relevant provisions from the Civil Procedure Act are as follows:
“60 References to defendant and plaintiff in this Part
In this Part, a reference—
(a)to a plaintiff includes a reference to a plaintiff by counterclaim; and
(b)to a defendant includes a reference to a defendant by counterclaim.
61Plaintiff may apply for summary judgment in proceeding
A plaintiff in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a defendant's defence or part of that defence has no real prospect of success.
62Defendant may apply for summary judgment in proceeding
A defendant in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a plaintiff's claim or part of that claim has no real prospect of success.
63Summary judgment if no real prospect of success
(1)Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2)A court may give summary judgment in any civil proceeding under subsection (1)—
(a)on the application of a plaintiff in a civil proceeding;
(b)on the application of a defendant in a civil proceeding;
(c)on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.”
Police tort
70Next, relevant to the basis upon which this proceeding is brought, the relevant provisions of the Victoria Police Act 2013 (“Victoria Police Act”) are set out as follows:
“72 What is a police tort?
(1)For the purposes of this Act, a police tort is a tort committed by a police officer or protective services officer in the performance or purported performance of the officer's duties.
(2)For the purposes of subsection (1), a tort includes—
(a)detrimental action (within the meaning of the Public Interest Disclosures Act 2012) taken by a police officer or protective services officer in reprisal for a disclosure to which Part 6 of that Act applies; and
(b)any other prescribed action or conduct.
(3)To avoid doubt, subsection (2) does not limit what is a tort for the purposes of subsection (1).
(4)For the purposes of subsection (1), it is irrelevant whether the tort is committed by the police officer or protective services officer alone or jointly or severally with any other person.
73What is a police tort claim?
(1)For the purposes of this Act, a police tort claim is a claim for damages or other relief in respect of an alleged police tort.
(2)A police tort claim includes—
(a)an action for damages under Part III of the Wrongs Act 1958 in respect of an alleged police tort; and
(b)a counterclaim for damages or other relief in respect of an alleged police tort committed by a police officer or protective services officer that is made by a person in a legal proceeding brought by the officer against that person; and
(c)any other prescribed action, claim or proceeding in respect of an alleged police tort.
(3)To avoid doubt, subsection (2) does not limit what is a police tort claim.
74Liability of the State for police torts
(1)Subject to this section, the State is liable for a police tort.
(2)Subject to subsection (5), the State is not liable for a police tort if the State establishes on a police tort claim that the conduct giving rise to the police tort was serious and wilful misconduct by the police officer or protective services officer who committed the police tort.
(3)If a police officer or protective services officer commits a police tort for which the State is liable, the officer—
(a)is not liable to any person for the police tort; and
(b)is not liable to indemnify, or to pay any contribution to, the State in respect of the liability incurred by the State.
(4)Subject to subsection (5), the State is not liable for a tort committed by a police officer or protective services officer that is not a police tort.
(5)Subsections (2) and (4) do not apply to a claim brought in reliance on Part XIII of the Wrongs Act 1958.”
Legal principles – summary judgment
71Having considered the parties’ written and oral submissions, I consider that the relevant legal principles for the purpose of the defendant’s application for summary judgment are not in dispute. I note that the plaintiff did not provide written submissions regarding the legal principles.
72The applicable principles regarding summary judgment were set out by the Court of Appeal in Lysaght Building Solutions Pty Ltd (trading as Highline Commercial Construction ACN 103 232 444) v Blanalko Pty Ltd (ACN 005 822 926).[23] It is sufficient for present purposes to set out the Court of Appeal’s conclusion in Lysaght as follows at [35]:
“Upon the present state of authority:
a)the test for summary judgment under s 63 of the Civil Procedure Act2010 is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
b)the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
c)it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
d)at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.”
[23](2013) 42 VR 27 per Warren CJ, Nettle and Neave JJA.
73Regarding the application for summary judgment, the test under s63 of the Civil Procedure Act is whether the plaintiff in this proceeding has a “real” as opposed to a “fanciful” chance of success. In consideration of that, the power to terminate the proceeding summarily should be exercised with caution and should not be exercised unless it is clear there is no real question to be tried.
74In the present case, the first issue is whether the pleaded case has a reasonable prospect of establishing a liability for a police tort. Obviously, my conclusion will need to be seen in the context of a broad consideration of the pleading, in circumstances where I have already concluded it is embarrassing.
Liability for a police tort – relevant cases
75As mentioned earlier, the defendant referred to several cases in which liability had not been extended where citizens claimed damages for an alleged police tort, where the conduct said to give rise to the claim arose out of operational decisions made by police officers.
76The cases referred to are a mix of Australian and United Kingdom authorities. The defendant relied on the cases referred to for support for the primary contention that the plaintiff’s claim cannot ever be remedied to provide for a cause of action for which liability would attach to it on the facts as pleaded in the impugned pleading.
77I have considered the authorities in the context of the defendant’s written and oral submissions. There is no need to refer to them all in detail, but I shall refer to them to the extent necessary.
New South Wales v Fahy[24]
[24](2007) 232 CLR 486 (“Fahy”).
78In Fahy, a decision of the High Court of Australia, the facts were that the respondent was a constable in what was then called the Police Service of New South Wales. On 25 August 1999, she was one of two police officers directed to investigate a hold-up at a video store. The police officers followed a trail of blood to a medical centre and located a victim being treated by a doctor. Ms Fahy discovered the victim had a further deep laceration and was bleeding profusely. She attempted to stop the bleeding and was involved in the care of the victim for some time. Her fellow officer, and then other police officers, attended but did not assist until ambulance officers eventually arrived.
79In a common law trial, Ms Fahy alleged a failure to observe or to respond adequately to the trauma that she had suffered, and that she had been left alone in the treatment room with the doctor and the victim in circumstances where her fellow police officer had no reason to leave her alone. The essence of her claim was that she had been abandoned, and that was the “decisive factor” in her development of a post-traumatic stress disorder.
80Ms Fahy was successful in establishing negligence before a trial judge and then in the Court of Appeal of New South Wales. However, the decision was overturned 4-3 in the High Court.
81The State of New South Wales brought the appeal in the High Court. In the High Court, Gleeson CJ noted that the case was conducted by the parties, at some risk of over-simplification, upon the basis that the relationship between the respondent and “the Crown” was analogous to that of employee and employer, and that either “the Crown” or the Commissioner of Police owed the respondent a duty of care of the kind that exists in an ordinary employment setting, subject to any relevant statutory modification of the incidents of that relationship.
82In Fahy, the statement of claim alleged employment and the defence admitted that allegation, and that “an employer owes a duty to its employee to take reasonable care for the employee’s safety”.[25]
[25]Fahy, page 1.
83Gleeson CJ said at [4]:
“To observe that it was common ground that the Service, or the Commissioner, owed the respondent a duty to take reasonable care for her safety, and that this embraced a duty to institute and maintain a safe system of work, helps to set the context for the debate in this Court, but it raises questions as to the kind of act or omission that would constitute a breach of such duty. The relevant form of safety is protection from the risk of psychiatric injury and, in particular, post-traumatic stress disorder. Having regard to the nature of the duties of a police officer, and to the nature of post-traumatic stress disorder, concepts of risk, and safety, may require closer analysis. The duties of police officers commonly expose them to danger, sometimes from people who deliberately seek to cause them harm. Individual responses to stressful situations vary greatly, and police officers are sometimes called upon to deal with situations that many ordinary citizens would find unbearably stressful. Police service is not unique in this respect. Many callings expose people to forms of stress with which outsiders would be unable to cope. Furthermore, an individual's capacity to cope with stress may be affected by unpredictable personal circumstances.”
84Next, in a joint judgment, Gummow and Hayne JJ noted at [25] that:
“much of the argument in the appeal in this Court proceeded from the unstated premise that either “the Crown”, or a person or persons for whom “the Crown” was made vicariously liable… was to be treated as owing to Ms Fahey the duty of care owed by an employer to an employee”.[26]
[26] Ibid [25].
85Their Honours said of the asserted duty of care that it was “necessary and important to recognise that it must be framed in a way that takes proper account of the statutory framework provided… for the performance of police duties”.[27]
[27]Ibid [26].
86In Fahy, the duty of care created by an employment relationship was admitted, despite some doubt about the correctness of that in the passages from the judgments as set out, or at least some doubt whether the “employment” relationship created by service as a police officer involved the same duty that say might be owed more generally to employees (to give some examples) such as that owed to a factory worker, or an administrative assistant.
87As Gummow and Hayne JJ noted, in the performance of the wider function of policing, police officers are required to undertake tasks as part of the duties of police officers and are the subject of lawful orders. In that context, the duty to provide a safe system for the performance of those police duties had to be one that did not detract from the statutory purposes and functions of the police service.[28]
Sullivan v Moody & Ors[29]
[28]Ibid [27].
[29] (2001) 207 CLR 562 (“Sullivan”).
88Sullivan is another High Court case. The appellants sought damages against the respondents for the investigation of allegations of sexual assault. The appellants were the parents of children and the respondents were medical practitioners retained to examine children the subject of the allegations of sexual abuse. In a unanimous judgement, the Court said that a duty of the kind alleged by the appellants would not be compatible with the other duties that the respondents owed (to investigate allegations of sexual assault).[30] Further, it was said in Sullivan that “[i]t would be inconsistent with the proper and effective discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who were suspected of being the sources of that harm”.[31]
Hill v Chief Constable of West Yorkshire[32]
[30] Ibid [55].
[31] Ibid [62].
[32] [1989] AC 53 (“Hill”).
89The facts in Hill arose out of the murder of a young woman where the attacker was alleged to have committed a series of violent offences. The House of Lords held that the defendant police officer did not owe a duty of care to members of the public who might suffer injury through the careless failure to apprehend a dangerous criminal.
Van Coole v Chief Constable of the Hertfordshire Police[33]
[33] [2009] 1 AC 225 (“Van Coole”).
90Next, in Van Coole, the House of Lords held that in a case again involving the alleged failure to prevent a criminal act against a citizen, the Court decided that it was a core principle of public policy that, in the absence of special circumstances, the police owe no common law duty of care to protect individuals from harm caused by criminals.
Gesah v Alistair Ross & Ors[34]
[34] [2013] VSC 165 (“Gesah”).
91Gesah is another case involving the alleged duty of police officers in the undertaking of a criminal investigation. Justice Beach (as he then was) said:
“In the absence of exceptional circumstances, police officers do not owe a duty of care to an individual to investigate a complaint of actual or threatened criminal conduct. A duty of care to investigate is not owed by police officers primarily because the imposition of such a duty would be inconsistent with the performance of a police officer’s public duty to enforce the criminal law, which requires them to exercise discretion in prioritising the use of investigative resources in the public interest. So it must also be in relation to the investigation of a suspect or person of interest. The same process of reasoning that denies a victim or potential victim a duty of care equally denies a duty in relation to an alleged perpetrator.
Whilst the authorities in this area allow for the possibility of a duty of care existing in relation to the investigation of actual or threatened criminal conduct in “exceptional circumstances”, neither counsel referred me to any cases where either exceptional circumstances have been held to exist or such a duty has been found. Moreover, one might have thought that the cases of Hill v Chief Constable of West Yorkshire and Brooks v Commissioner of Police of the Metropolis may have involved exceptional circumstances (at least so far as victims or potential victims might be concerned). In Hill, the claim was that the police conducted their investigations negligently, which resulted in their failure to apprehend a serial killer before he murdered the daughter of the plaintiff. No relevant duty was held to be owed in that case. Brooks was a case where the House of Lords had to deal with a claim brought against the police by the surviving victim of a racist attack. A committee of inquiry had “exposed a litany of derelictions of duty and failures in the police investigations”. Notwithstanding this matter, the House of Lords unanimously declared that no duty of care was owed to the victim.
The circumstances of the present case as pleaded by the plaintiff, when compared to the circumstances in Hill and Brooks and the other authorities in this area, are not in any relevant sense exceptional. Further, the plaintiff in the present case has not pleaded (and did not suggest) any circumstances that might be exceptional so as to give rise to the second, third, fourth or fifth defendants owing the duties of care pleaded against them. In any event (and whether or not exceptional circumstances is a relevant concept), when one analyses the salient features in respect of this case, such as legal policy, coherence of the law and conformity with other duties and obligations (notwithstanding what is capable of being said about foreseeability, degree of harm and vulnerability), one arrives at the conclusion that the duties alleged by the plaintiff do not exist.”[35]
(Footnotes omitted.)
[35] Ibid [41]-[43].
Smith v State of Victoria[36]
[36] (2018) 56 VR 332 (“Smith”).
92The next case is a decision of J Dixon J in Smith in which his Honour considered the relevant authorities in the context of an alleged duty of care by police to prevent family violence. As J Dixon J said, Australian common law has not affirmatively recognised that a police officer can never owe a duty of care. Whether a police officer owes a duty of care:
“must necessarily be determined on a close analysis of the facts bearing on the relationship between the plaintiffs and the putative tortfeasor for whom the defendant is responsible. I accept that there are many cases in which it has been held that police and the police force as a whole do not owe a duty of care to a plaintiff in a particular circumstances of those cases
…
Ultimately, the task involved in the resolution of this proceeding is fact rich and fact intensive. The defendant has not persuaded me that no duty of care could arise on the assumed facts. Rather, I am persuaded that the issue must be determined once the facts have been established at trial”.[37]
[37] Ibid [170]-[171].
Analysis of case law
93The authorities referred to support the proposition that, for public policy reasons, save for exceptional circumstances, police do not owe a duty of care to members of the public to prevent them from harm caused by criminal conduct.
94The authorities are of assistance in understanding whether a duty may be owed by police to other police in the making of operational decisions.
95As Fahy makes clear, any duty owed by police to other police officers must be considered by reference to the applicable statute. Further, I consider that Fahy also supports the conclusion that the engagement in service as a police officer does not create the same broad common law duty of care that employers owe to their employees. For example, concepts such as the traditional non-delegable duty of care that an employer owes to employees has no role to play in service as a police officer who may need to devise and implement a response to criminal conduct to advance the overall safety of the community, and often at risk to her or his own safety.
96I also consider that the authorities support the conclusion that, in exceptional circumstances, the State may owe a duty of care for acts or omissions by police officers. In my view, the authorities support a conclusion that an exceptional circumstance may be created during the performance of police duties by police to other police officers.
Consideration
97In this application, by analogy, the defendant submitted that there was no duty of care owed to the plaintiff for any injury caused by the decisions made by it in respect to Gargasoulas and the Bourke Street attack. In the context of the amended statement of claim, operational decisions had been made in which the defendant did not and could never owe the plaintiff a duty of care.
98In response, the plaintiff submitted that what made this proceeding ‘exceptional’ was that the claim was made by a police officer in respect to the decisions made by other police in the circumstances of the duty owed to him through his service as a police officer, or, if you like, because the circumstances are akin to an employer and employee relationship.
99In this proceeding, the starting point is the fact that the plaintiff sued the defendant pursuant to sections 72, 74 and 75 of the Victoria Police Act. In that context, the defendant denied that service of a police officer is akin to an employer and employee relationship.
100Service as a police officer has some of the salient features of the employer and employee relationship, such as that the police officer is subject to supervision, direction and control of the senior officers and is provided with the necessary equipment to perform his or her duties as a police officer. But it is not the same as, and should not be conflated with, the non-delegable common law duty an employer owes an employee.
101It is incumbent on the plaintiff to identify the circumstance (exceptional or otherwise) that created a liability for a police tort in the context of identifying the duty said to be owed through his service as a police officer. Bland allegations such as those currently pleaded in respect to “failing to take reasonable care for his safety” or an alleged duty to “have and enforce a safe system of work” are meaningless in this context.
102So, in the present proceeding, the question that arises is whether the conduct that the plaintiff alleged by police in the several days prior to the Bourke Street attack is an arguable police tort within the meaning of s72 of the Victoria Police Act such as to give rise to a duty to the plaintiff when making operational decisions about Gargasoulas.
103To some extent, that question is answered in the negative because of the unsatisfactory nature of the amended statement of claim.
104But that is not necessarily the same as accepting the defendant’s primary contention that it can never owe a duty when making operational decisions regarding criminal conduct.
105After a consideration of the parties’ contentions and the relevant authorities, I conclude that the nature of service as a police officer is such that there can be a duty of care owed by the defendant (Victoria Police) to police officers.
106At a policy and operational level, there must be a myriad of decisions made daily that involve operational decisions (both to act or not to act as the case may be) for the greater good of public safety that could never consider or create a duty owed generally or specifically to police officers.
107But, in some circumstances, perhaps only exceptional circumstances, the cases support a conclusion that a duty may be owed.
108What might be considered an exceptional example, to illustrate this point, is to compare a decision to send an inexperienced constable to the scene of a protest by an unruly armed mob without any backup, with that of sending the same officer as part of a substantial and fortified contingent to confront the same angry mob. In the first example, there may be a duty and breach of duty, whereas in the second there would most likely be no duty owed or no breach.
109A large portion of the plaintiff’s submissions were directed to the concept that the salient features of the relationship between police officers and superior police officers are questions that are fact rich and should be allowed to be tried. To an extent, I accept that submission but, at the risk of repetition, that cannot deflect away the fact that the amended statement of claim does not satisfy the fundamental obligation of pleadings, in this case to set out how the duty arose, the extent of it and how it is alleged to have been breached. The deficiency in the pleading cannot be solved by allowing a fact rich trial and then an inevitable reconstruction of the pleading to fit the case.
Foreseeability
110Next, a brief discussion about foreseeability as it is raised by the defendant.
111Integral to the conclusion of a liability for a police tort in this proceeding is the element of foreseeability.
112It is trite to note that the question of foreseeability is to be judged prospectively and not retrospectively.
113The defendant in the written submission said that a duty of care was not owed but that, in any event, in the circumstances pleaded, the psychological injury to the plaintiff was not a foreseeable event. It submitted that “[t]he apparent alleged duty of care offends basic principles of foreseeability”.[38] In essence, the defendant submitted that the pleaded case was a classic example of litigious hindsight.[39]
[38] Defendant’s submissions, paragraph 26.
[39] Hegarty v Queensland Ambulance Servants [2007] QCA 366 at [47].
114I agree with the submission of the defendant regarding foreseeability. The pleading is deficient. There are references to events that post-dated the Bourke Street attack and, at first blush, appear to seek to retrospectively sheet home liability against the defendant. As it stands, I consider that several of the matters pleaded in the amended statement of claim do offend the basic principle of foreseeability, in the context of both duty and breach of duty.
115Further, the factual matrix at the core of this proceeding obviously involved a terrible and novel event, namely the use of a motor car to cause death and damage to pedestrians in a pedestrian mall. In that context, foreseeability also cannot be brushed away as a fact rich enquiry for trial.
116As I have noted, the plaintiff needs to produce a pleading that carefully sets out the relevant duty said to be owed and the necessary particulars of the alleged breach and injury. That task will need to consider the principles of foreseeability.
117For the reasons expressed, at this point, I do not conclude that the issue of foreseeability is a hurdle that the plaintiff can never jump. I anticipate it may be no easy hurdle to jump, but in the exercise of a discretion about a deficient pleading, that may also be a decision for another day.
The extent of the grant of serious injury
118The second remaining issue arises from the plaintiff’s serious injury application and a consideration of the grant of “serious injury”.
119Prior to the commencement of this proceeding, the plaintiff made a serious injury application in accordance with the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”), which is a necessary gateway for workers, or deemed workers, who are entitled to statutory benefits pursuant to the WIRC Act.
120In the affidavit of the solicitor for the defendant, Mr Nicholas Lavender, sworn 1 August 2023, the background to the plaintiff’s serious injury application was set out, together with the documents that formed that application. The defendant then said in its written submission at paragraph [39] that:
“Perusal of the serious injury application materials, makes clear that the grant of serious injury in this case was limited to a psychiatric injury resulting from the Bourke Street attack.”
121In other words, the defendant submitted that the plaintiff could not rely upon the “misconduct” pleading.
122The issue of the scope of a grant of serious injury was considered by J Forrest J in Kruisselbrink v Nationwide Maintenance Services Pty Ltd.[40]It is convenient to set out the relevant paragraphs of Kruisselbrink as reproduced in the defendant’s written submission, as follows:
[40][2010] VSC 260 (“Kruisselbrink”).
“29. In Kruisselbrink v Nationwide Maintenance Services Pty Ltd, J Forrest J, reasons at paragraph [48]:
‘… what is clear is that the worker’s proceeding can only be maintained in respect of the employment duties or tasks that have given rise to the serious injury as the section makes clear. So a claim based upon a discrete injury on a different date to that on which the serious injury was sustained, albeit that it was incurred in the course of employment could not be maintained – nor could an allegation of negligence or statutory breach of statutory duty in respect of work not connected with the infliction of the serious injury.’
30. At [63], His Honour draws the following principles form [sic] the authorities:
‘I think it possible to draw the threads of these authorities together in the following way:
(1) By the grant of a certificate a worker will have established that he or she has sustained compensable injury and that such injury is a serious injury. The existence of a serious injury permits the court to entertain the worker’s common law claim for damages;
(2) The determination of the Authority that an injury is serious, relates to the injury alone; the circumstances giving rise to the injury, at this stage, are relevant only in determining that the injury is compensable and arises out of employment occurring on or after 20 October 1999;
(3) A worker can only, in the common law claim, in establishing liability on the part of an employer rely upon those circumstances of his or her employment which are related to the serious injury;
(4) Where an issue at an interlocutory stage arises concerning the effect of a certificate and the ability of the worker to maintain his or her common law claim or a suggested limit on the ambit of that claim then in determining whether part or all of the claim is competent, a court is entitled to look at the material provided to the Authority as part of the s 134AB application;
(5) An interlocutory application relevant to the ability of the worker to maintain his or her claim (either in the form of a summary judgment or striking out part or all of the statement of claim; or in considering whether to permit an amendment of the claim) is just that – interlocutory, not final. An order striking out part or all of a worker’s common law claim (or for summary judgment) at this stage should only be made if it is clear beyond argument, that the alleged employment circumstances have no relationship to the serious injury itself. Similarly, in the case of amendment, absent some other consideration (such as set out in Aon Risk Services Australia Ltd v Australian National University), unless a Court is satisfied that the amendment is futile, it would normally be granted so that the issues can be properly agitated before the jury or judge at the damages trial.
31. This line of reasoning was recently upheld by the Court of Appeal in Belgrave Heights Christian School v Diane Moore [2020] VSCA 240, at paragraph [46]:
… s 134AB focuses on any injury arising out of or in the course of, or due to the nature of, employment — which might be the whole of employment, or some particular aspects of employment, or some specified incident or incidents, or some gradual process injury (to identify but a few examples).
32. The Court of Appeal, concludes its comments at [67]:
‘The propositions derived by J Forrest J owe their existence to the specific terms of the relevant sections in the AC Act and the fact that it is the work related injury that is the focus of the grant of leave under the AC Act…the focus in the AC Act is upon injury that merely needs only to be one of ‘in respect of’, ‘arising out of’, ‘in the course of’, or ‘due to the nature of’, employment…’
123The resolution of the second issue involves an analysis of the serious injury application material, in conjunction with the statements of principle set out in Kruisselbrink. The plaintiff’s entitlement to plead the misconduct allegations is not dependent upon the identification of a cause of action in the serious injury application but rather upon establishing the existence of “serious injury”.
124On this point, the plaintiff submitted that sufficient material had been placed before the serious injury decision maker so that the misconduct pleading could stand as part of a continuum of injury.[41]
[41] T 31-32.
125Specifically, the plaintiff referred to a history given to Dr Lester Walton. In a report dated 21 November 2018, Dr Walton referred to the plaintiff being very vocal about the failure of police as he saw it and how, shortly after the Bourke Street attack, he was summoned to a disciplinary hearing in respect to a trivial matter.
126The plaintiff submitted that the affidavit, draft statement of claim and the injury identified in his serious injury application (including the medical reports) were such that the misconduct pleading could stand.
127However, in a properly made concession, perhaps in the knowledge that there was very little evidence in the serious injury application in support of the misconduct pleading, his senior counsel said the “subsequent events” (being the misconduct pleading) can be looked at either as part of the overall cause of action, or looked at an event that causes an aggravation of the injury rather than it be a cause of the serious injury.[42]
[42] T 30, L 24-31.
128Accepting the statements of principle in Kruisselbrink, in my opinion, the misconduct pleading cannot be brought as part of this proceeding. The grant of serious injury attaches to an injury. But there must be a cause of injury for it to attach. The serious injury documents made very little mention of anything that could be in any way characterised as part of the misconduct pleading.
129The plaintiff swore an affidavit on 1 November 2019 as part of the serious injury application. In that affidavit, he made no mention of the misconduct allegations. In that affidavit, consistent with the draft statement of claim, he ascribed his injury to the actions of Gargasoulas and his reaction to the Bourke Street attack.
130But, more fundamentally, there was no medical evidence provided as part of the serious injury application to ascribe injury, or aggravation of injury, to the misconduct allegations. Indeed, Dr Walton opined that the final catastrophe for the plaintiff was the Bourke Street deaths and injuries for which the plaintiff blamed himself.
131Based on the serious injury application and the documents that formed that application, the maker of the grant of serious injury could not reasonably have contemplated that the plaintiff would proceed with the claim based on misconduct.
132If the plaintiff suffered a compensable injury due to the alleged misconduct, then that is a separate cause of action, for a separate injury or aggravation injury, for which the plaintiff needed to access the serious injury gateway. To pursue those allegations, he will need to make a further serious injury application.
133The misconduct pleading will be struck out.
Disposition
134The amended statement of claim is embarrassing. The Court will not accept it in the current form.
135However, for the reasons expressed, the plaintiff should be given an opportunity to re-plead.
136The misconduct allegations cannot stand in the context of the grant of serious injury and are to be excluded from any further version of the statement of claim.
137As I have noted, the jumbled mess that is the amended statement of claim means that the only possible solution is for the draftsperson to start afresh with a blank page. If this proceeding is to be maintained, then it is to be done by the plaintiff effectively starting again by the provision of a fresh statement of claim. That will need to be a careful and bespoke document for the reasons I have expressed.
138For the foregoing reasons, I will order that the plaintiff is given leave to provide a further proposed amended statement of claim that complies with the rules and the principles of pleadings.
139The ordinary rule is that costs follow the event, and the defendant having largely been successful, should get its costs of the application, including any reserved costs.
140The parties are directed to confer and to provide to my chambers, by no later than 4:00 PM on 6 October 2023, proposed orders to give effect to this Ruling. That will need to provide for sufficient time for the plaintiff to consider this Ruling and to produce a further pleading. In that regard:
(a) if the form of orders and costs are agreed, then the signed minutes to that effect should be provided; and
(b) if these are not agreed, then the parties are to provide their proposed orders (including costs) and a short, written outline of no more than three pages as to why their form of orders should be preferred.
141I will then make orders to give effect to this Ruling regarding the application, after 6 October 2023.
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