Cumming v State of NSW

[2008] NSWSC 690

CITATION:	Cumming v State of NSW [2008] NSWSC 690
HEARING DATE(S):	23 June 2008
JUDGMENT DATE :	9 July 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Harrison AsJ
DECISION:	(1) The plaintiffs' amended statement of claim filed 27 February 2008 is dismissed as against the first defendant. (2) The plaintiffs are to pay the first defendant's costs of the motion and of the proceedings as agreed or assessed.
CATCHWORDS:	SUMMARY JUDGMENT - whether the Police owed a duty of care to family of missing person
LEGISLATION CITED:	Law Reform (Vicarious) Liability Act 1983 Mental Health Act (Vic) 1986 Police Service Act 1990 Uniform Civil Procedure Rules
CATEGORY:	Procedural and other rulings
CASES CITED:	Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495 Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370 Contribution Fund of Australia v Hunt (1982) 44 ALR 365 Cran v State of New South Wales (2004) 62 NSWLR 95 Dorset Yacht Co Ltd v Home Office [1970] AC 1004 Elguzouli-Daf v Commissioner of the Metropolis [1995] QB 335 Gibson v Parkes District Hospital (1991-92) 26 NSWLR 9 Hill v Chief Constrable of West Yorkshire [1989] AC 53 Kirkland-Veenstra v Stuart [2008] VSCA 32 Knightly v John [1982] 1 WLR 349 Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242 State of New South Wales v Klein [2006] NSWCA 295 State of NSW v Tyszyk [2008] NSWCA 107 Sullivan v Moody (2001) 183 ALR 404; (2001) 75 ALJR 1570 Tame v NSW (2002) 211 CLR 317 Wilson v State of New South Wales (2001) 53 NSWLR 407
PARTIES:	Helen Cumming (First Plaintiff) Warren Cumming ( Second Plaintiff) Skye Cumming (Third Plaintiff) Christopher Cumming (Fourth Plaintiff) State of New South Wales ( First Defendant) Sydney South West Area Health Servi ce (Second Defendant)
FILE NUMBER(S):	SC 20299/2007
COUNSEL:	C Campbell SC (Plaintiffs) C Hodgson (First Plaintiff)
SOLICITORS:	Beilby Poulden Costello (Plaintiffs) Crown Solicitor ( First Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

ASSOCIATE JUSTICE HARRISON

WEDNESDAY, 9 JUNE 2008

20299/2007 - HELEN CUMMING v STATE OF
NEW SOUTH WALES

JUDGMENT (Summary judgment – whether the Police
owed a duty of care to family of missing person)

1 HER HONOUR: This is a tragic case. It concerns the death of a young man whose body was found by police five days after his mother reported him missing. He was not identified and the family was not notified for another four years. They spent years searching for him. By notice of motion filed 27 March 2008, the first defendant seeks an order that the proceedings as against it be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules.

2 The first plaintiff is Helen Cumming. The second plaintiff is Warren Cumming. The third plaintiff is Skye Cumming. The fourth plaintiff is Christopher Cumming. Helen and Warren Cumming are the parents of the late Daniel Cumming. Skye and Christopher Cumming are Daniel’s sister and brother. For convenience, I shall refer to the plaintiffs as the Cumming family. The Cumming family have brought a claim under the Compensation to Relatives Act 1897. The first defendant is the State of New South Wales. The second defendant is Sydney South West Area Health Service.

3 By amended statement of claim (ASC) filed 27 February 2008, the plaintiffs claim damages for negligence. The negligence as against the State of New South Wales (“the State”) is based upon its vicarious liability for the acts and omissions of various named, and unnamed officers of the New South Wales Police force. The plaintiffs’ also claim negligence as against the second defendant, Sydney South West Area Health Service, for the acts and omissions of the Royal Prince Alfred hospital, including its staff, agents and employees. The autopsy was conducted by employees of Royal Prince Alfred hospital.

4 On 1 September 2001 at about 3.30 am, Daniel Cumming, then aged 22 years, left his mother’s home at Waverley. At about 8.00 am, Mrs Cumming contacted Waverley Police by telephone. She spoke to Senior Constable Emma Maclay and advised her that Daniel was schizophrenic and that she was concerned for his safety. Senior Constable Maclay placed Daniel on the COPS system as a missing person. However, she did not contact the water police. Mrs Cumming informed her husband and children of Daniel’s disappearance shortly after it occurred.

5 On 7 September 2001, Senior Constable Robert Trussell, of the Sydney Water Police, recovered a body (unidentified body 01/16125) from the shark nets off Bronte Beach. Waverley Police were not advised of the recovery of the body. The body was transported to Sydney hospital, a post mortem and autopsy report was prepared and the doctor concluded that the age of the unidentified person was between 35-50 years. Daniel was only 22 years of age when he went missing.

6 For a period of just over four years, namely 25 September 2001 to 16 December 2005, various attempts were made by the police to identify the unidentified body. On 16 December 2005, the unidentified body was confirmed to be that of Daniel Cumming.

The pleading

7 By amended statement of claim filed 27 February 2008, the Cumming family allege that the police were negligent in the way in which they performed investigations in relation to the disappearance of Daniel. The plaintiffs plead that the State breached its duty of care “in that it failed to make the connection between the unidentified body of Daniel Cumming and the missing persons report of Daniel Cumming, and informed the plaintiffs, or led the plaintiffs to believe that Daniel Cumming was missing when they knew or ought to have known that he was unidentified body 01/16125.”

8 Various members of the police force are sued and pursuant to s 6 of the Law Reform (Vicarious) Liability Act 1983 are deemed to be persons in the service of the Crown. For convenience, I shall refer to the first defendant as the Police.

9 The plaintiffs’ particularise this breach in a number of ways. They allege:

(a) systemic/structural failures in the conduct of, and in the training of police officers in relation to, investigation of missing persons – particulars (a)-(c);

(b) particular failures by officers of the Missing Persons Unit in the course of the investigation in relation to the disappearance of Daniel Cumming – particulars (d)-(h), (m) and (n);

(c) particular failures by an officer of Waverley police (Senior Constable Maclay) in the course of the investigation in relation to the disappearance of Daniel Cumming – particulars (i)-(k);

(d) particular failures by an officer of Sydney Water Police (Senior Constable Trussell) in the course of the investigation in relation to the disappearance of Daniel Cumming – particular (l); and

(e) particular failures by an officer of Eastern Suburbs Local Area Command (Sergeant Brasen) in the course of the investigation in relation to the disappearance of Daniel Cumming – particulars (o)-(p).

10 As a result of the alleged breach of duty of care by the Police, the plaintiffs each assert that they suffered psychiatric injury, economic loss, pure economic loss and out-of-pocket expenses.

11 For the purposes of this application, the pleadings are taken at their highest and it will be assumed that the facts pleaded can be established.

12 The Police seek to have the proceedings as against it, summarily dismissed on the grounds that no reasonable cause of action is disclosed in relation to the claim against it and that the alleged duty of care against it does not exist at law.

Summary judgment

13 Rule 13.4(1) of the Uniform Civil Procedure Rules provides that the court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are, if the proceedings are frivolous or vexatious; or, if no reasonable cause of action is disclosed; or, if the proceedings are an abuse of the process of the court.

14 The police accept that the test for summary judgment is demanding.

15 In Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370 Beazley JA with whom Mason P agreed said:

“11 The general principles relating to the summary disposal of proceedings are well-known: see General Steel Industries Inc v Commissioner for Railways (NSW) & Ors [1964] HCA 69; (1964) 112 CLR 125 at 129. If it is demonstrated that there is a real question to be tried, the matter is inappropriate for the entry of summary judgment: Dey v Victorian Railway Commissioners [1949] HCA 1; (1949) 78 CLR 62. The tests stated in the authorities as to whether it is appropriate that a case be disposed of by the entry of summary judgment include statements such as that the matter is “so obviously untenable that it cannot possibly succeed”; “manifestly groundless” or “would involve useless expense”: see General Steel Industries at 129.

12 The summary disposal of proceedings or part thereof deprives a party of the right to a contested hearing. For that reason it is said that the requirement for establishing that there is no triable issue is demanding: Air Services Australia v Zarb (Court of Appeal, 26 August 1998, unreported). In Webster & Anor v Lampard [1993] HCA 57; (1993) 177 CLR 598, Mason CJ, Deane and Dawson JJ said at 602:

“… the issue before the learned Master on the application for summary judgment was not whether [the plaintiffs] would probably succeed in their action against [the defendant]. It was whether the material before the Master demonstrated that that action should not be permitted to go to trial in the ordinary way because it was apparent that it must fail. The power to order summary judgment must be exercised with ‘exceptional caution’ and ‘should never be exercised unless it is clear that there is no real question to be tried.” (Citations omitted)

16 Master Allen (as he then was) in Contribution Fund of Australia v Hunt (1982) 44 ALR 365 at 373-374 said:

“…It is not by any means rare in the history of the development of the common law that a high appellate court, in enunciating a novel development in the law, albeit one avowedly based on a miscellany of old cases, has chosen to use general words of imprecise limits in meaning to facilitate the arrival, in later cases, of the final form of the development without the need to overrule what earlier had been stated. That being so I am of opinion that a court at first instance should be particularly astute not to risk stifling that development of the law by summarily throwing out of court actions in respect of which there is a reasonable possibility that it will be found, in the development of the law, still embryonic, that a cause of action does lie. The risk of injustice to the plaintiff, which summary termination of his claim would entail, is real. One cannot predict, with firm assurance, what the future holds as the final formulation of the new development.”

17 This passage was quoted with approval by Justice Badgery-Parker in Gibson v Parkes District Hospital (1991-92) 26 NSWLR 9 at 35.

18 In Dorset Yacht Co Ltd v Home Office [1970] AC 1004 at 1058; [1970] 2 All ER 294 at 324, Lord Diplock said:

“… [T]he judicial development of the law of negligence rightly proceeds by seeking first to identify the relevant characteristics that are common to the kinds of conduct and relationship between the parties which are involved in the case for decision and the kinds of conduct and relationships which have been held in previous decisions of the courts to give rise to a duty of care.”

19 Conversely, conduct and relationships may have been held not to give rise to a duty of care, and the reasons for that holding may provide an important guide to the solution of the problem in a new case – see Sullivan v Moody (2001) 183 ALR 404; (2001) 75 ALJR 1570.

20 This approach of analysing the cases in this way is the one that I have adopted when considering whether summary judgment should be granted.

The law

21 The Police submitted that there was no duty of care owed to the Cumming family arising out of the missing person investigation. Counsel for the Cumming family submitted that the role performed by the Police was not one of investigation, but rather one of the properly dealing with the body they found and the proper handling of the request by all persons associated with and in connection with the body. Counsel for the Cumming family also submitted that whether or not there is a duty of care depends upon the facts and circumstances being ascertained and this can only occur at a trial.

22 A convenient starting point for consideration of liability for the acts of negligence of police officers in the course of their duty is Hill v Chief Constable of West Yorkshire [1989] AC 53. In Hill the plaintiff’s daughter had been attacked at night in a city street and died as a consequence. Her attacker was alleged to have committed a series of murders and attempted murders in the same area and in similar circumstances over a period of years previously. The plaintiff claimed damages on behalf of his daughter’s estate for negligence upon the basis that the conduct of the investigations into the murders and attempted murders which had been committed prior to the death of his daughter had been inadequate and as a result of that the police had failed to apprehend the criminal in question and thus prevent the murder of his daughter.

23 The appeal against summary judgment was dismissed and, in the leading judgment Lord Keith of Kinkel, identified the issue before the House of Lords and said, at 59:

“ The question of law which is opened up by the case is whether the individual members of a police force, in the course of carrying out their functions of controlling and keeping down the incidence of crime, owe a duty of care to individual members of the public who may suffer injury to person or property through the activities of criminals, such as to result in liability in damages, on the ground of negligence, to anyone who suffers such injury by reason of breach of that duty.

There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence. Instances where liability for negligence has been established are Knightley v Johns [1982] 1 W.L.R. 349 and Rigby v Chief Constable of Northamptonshire [1985] 1 W.L.R. 1242. Further, a police officer may be guilty of a criminal offence if he wilfully fails to perform a duty which he is bound to perform by common law or by statute: see Reg v Dytham [1979] Q.B. 722, where a constable was convicted of wilful neglect of duty because, being present at the scene of a violent assault resulting in the death of the victim, he had taken no steps to intervene.

By common law police officers owe to the general public a duty to enforce the criminal law: see Reg v Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 Q.B. 118. That duty may be enforced by mandamus, at the instance of one having title to sue. But as that case shows, a chief officer of police has a wide discretion as to the manner in which the duty is discharged. It is for him to decide how available resources should be deployed, whether particular lines of inquiry should or should not be followed and even whether or not certain crimes should be prosecuted. It is only if his decision upon such matters is such as no reasonable chief officer of police would arrive at that someone with an interest to do so may be in a position to have recourse to judicial review. So the common law, while laying upon chief officers of police an obligation to enforce the law, makes no specific requirements as to the manner in which the obligation is to be discharged. That is not a situation where there can readily be inferred an intention of the common law to create a duty towards individual members of the public.”

[emphasis added]

24 The House of Lords unanimously found that no such duty of care existed.

25 Relevantly for these proceedings, his Lordship (whose reasons have been much cited subsequently) then went on to consider the issue of an immunity from suit at 63-64:

“That is sufficient for the disposal of the appeal. But in my opinion there is another reason why an action for damages in negligence should not lie against the police in circumstances such as those of the present case, and that is public policy . In Yuen Kun Yeu v Attorney-General of Hong Kong [1988] A.C. 175, 193, I expressed the view that the category of cases where the second stage of Lord Wilberforce’s two stage test in Anns v Merton London Borough Council [1978] A.C. 728, 751-752 might fall to be applied was a limited one, one example of that category being Rondel v Worsley [1969] 1 A.C. 191. Application of that second stage is, however, capable of constituting a separate and independent ground for holding that the existence of liability in negligence should not be entertained. Potential existence of such liability may in many instances be in the general public interest, as tending towards the observance of a higher standard of care in the carrying on of various different types of activity. I do not, however, consider that this can be said of police activities. The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind . The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes. While some such actions might involve allegations of a simple and straightforward type of failure – for example that a police officer negligently tripped and fell while pursuing a burglar – others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do. The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources . Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and retraversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted. I therefore consider that Glidewell L.J., in his judgment in the Court of Appeal [1988] Q.B. 60, 76 in the present case, was right to take the view that the police were immune from an action of this kind on grounds similar to those which in Rondel v Worsley [1969] 1 A.C. 191 were held to render a barrister immune from actions for negligence in his conduct of proceedings in court.”

[emphasis added]

26 To similar effect, Lord Templeman in Hill said at 65:

“ The present action could not consider whether the training of the West Yorkshire Police Force is sufficiently thorough , whether the selection of candidates for appointment or promotion is defective, where the rates of pay are sufficient to attract recruits of the required calibre, whether financial restrictions prevent the provision of modern equipment and facilities , or whether the Yorkshire Police Force is clever enough and if not, what can and ought be done about it. The present action could only investigate whether an individual member of the police force conscientiously carrying out his duty was negligent when he was bemused by contradictory information or overlooked significant information or failed to draw inferences which later appeared to be obvious. That kind of investigation would not achieve the object which Mrs Hill desires. The efficiency of a police force can only be investigated by an inquiry instituted by the national or local authorities which are responsible to the electorate for that efficiency.

Moreover, if this action lies, every citizen will be able to require the court to investigate the performance of every policeman. If the policeman concentrates on one crime, he may be accused of neglecting others. If the policeman does not arrest on suspicion a suspect with previous convictions, the police force may be held liable for subsequent crimes. The threat of litigation against a police force would not make a policeman more efficient. The necessity for defending proceedings, successfully or unsuccessfully, would distract the policeman from his duties .

This action is in my opinion misconceived and will do more harm than good. A policeman is a servant of the public and is liable to be dismissed for incompetence. A police force serves the public and the elected representatives of the public must ensure that the public get the police force they deserve. It may be that the West Yorkshire police force was in 1980 in some respects better and in some respects worse than the public deserve. An action for damages for alleged acts of negligence by individual police officers in 1980 could not determine whether and in what respects the West Yorkshire police force can be improved in 1988. I would dismiss the appeal.”

[emphasis added]

27 In Hill, the House of Lords concluded that there was no duty of care owed to individual members of the public by the police in the course of carrying out their functions of controlling and keeping down the incidence of crime. But the House of Lords also made it clear that a police officer may, like anyone else, be liable in tort to a person who is injured as a direct result of his acts or omissions. The core principle set out in Hill, and cited in later decision of Courts that will be referred to in this judgment, is that police enjoy a public policy immunity in respect of decisions made in the course of investigation or the suppression of crime. This principle is set out in the judgment of Lord Keith of Kinkel with whom Lord Brandon of Oakbrook, Lord Oliver of Aylmerton and Lord Goff of Chievely agree.

28 In Elguzouli-Daf v Commissioner of the Metropolis [1995] QB 335 the plaintiff, Mr Elguzouli-Daf, sued in respect of his wrongful arrest and imprisonment. Ultimately the Crown Prosecution Service (“the CPS”) abandoned the prosecution. Steyn LJ observed that the appeal raised the question of law as to whether the CPS owed a duty of care to those it was prosecuting (342). Steyn LJ (at 347) made reference, by way of the analogy, to the police immunity in Hill, which was said to be instructive.

29 Steyn LJ (at 349) in Elguzouli-Daf considered the public policy factors as follows:

“That brings me to the policy factors which, in my view, argue against the recognition of a duty of care owed by the CPS to those it prosecutes. Whilst it is always tempting to yield to an argument based on the protection of civil liberties, I have come to the conclusion that the interests of the whole community are better served by not imposing a duty of care on the CPS. In my view, such a duty of care would tend to have an inhibiting effect on the discharge by the CPS of its central functions of prosecuting crime. It would, in some cases, lead to a defensive approach by prosecutors to their multifarious duties. It would introduce a risk that prosecutors would act so as to protect themselves from claims of negligence. The CPS would have to spend valuable time and use scarce resources in order to prevent law suits in negligence against the CPS. It would generate a great deal of paper to guard against the risks of law suits. The time and energy of CPS lawyers would be diverted from concentrating on their prime function of prosecuting offenders . That would be likely to happen not only during the prosecution process, but also when the CPS is sued in negligence by aggrieved defendants. The CPS would be constantly enmeshed in an avalanche of interlocutory civil proceedings and civil trials. That is a spectre that would bode ill for the efficiency of the CPS and the quality of our criminal justice system.”

[emphasis added]

30 Steyn LJ expressed his conclusion as follows at 349-350:

“Recognising that individualised justice to private individuals, or trading companies, who are aggrieved by careless decisions of CPS lawyers, militates in favour of the recognition of a duty of care, I conclude that there are compelling considerations rooted in the welfare of the whole community, which outweigh the dictates of individualised justice . I would rule that there is no duty of care owed by the CPS to those it prosecutes. In so ruling I have considered whether a distinction between operational and discretionary lapses, with potential liability in the former but not the latter, should be made. Whatever the merit of such a distinction in other areas of law, I would reject it in regard to the CPS as impractical, unworkable and not capable of avoiding the adverse consequences for the CPS on which I have rested my decision. …”

31 While in Hill, the House of Lords considered that public policy considerations give rise to immunity from suit, in Elguzouli-Daf their Lordships considered that public policy was a factor in deciding that no duty of care arose. This latter approach is the one that has subsequently been adopted by the courts.

32 In Elguzouli-Daf the English Court of Appeal applied the reasoning articulated in Hill and decided by way of analogy that the CPS did not owe a general duty of care in the conduct of its prosecution of a defendant. In any event, the CPS was also immune from actions in negligence by reason of public policy.

33 In Wilson v State of New South Wales (2001) 53 NSWLR 407 the allegations of breaches of duty of care against the NSW Police Service were in relation to the investigation and prosecution of the parents and a grandparent of children who were allegedly sexually abused. After considering what was, at relevant times, set out in ss 6 and 7 of the Police Service Act 1990 and why those sections, which he referred to as “aspirational in nature”, did not give rise to a duty of care to an individual citizen, O’Keefe J then referred to matters of resources and competing demands in the following terms:

“[42] In the ordinary course of duty a police officer may be called upon to investigate crimes, complaints of crimes and circumstances which may involve crime . The nature, extent and timing of the investigation will be conditioned by a number of factors. One will be the apparent seriousness of the subject matter involved. Another will be the provisions of any relevant legislation. Yet another will be the resources, in terms of manpower, equipment, expertise etc, which are available . Another factor will be the competing demands on such resources. The foregoing are but examples. There are many other factors which may condition the nature, extent and timing of particular investigations, some of which may lead to prosecutions.”

[emphasis added]

34 O’Keefe J then considered Hill, Elguzouli-Daf and other cases and said at [63]-[64]:

“[63] The foregoing line of authority in my opinion strongly supports the conclusion that an action for negligence under the common law does not lie in respect of the exercise by police of their investigative functions on the basis that the investigations conducted were inadequate and that no action for the negligence under the common law lies in respect of the performance of police prosecutorial functions, whether in the initiation of the prosecution, in its conduct or in respect of its continuance to the time of decision by a curial body. This conclusion is consonant with what in my opinion is the correct affirmative answer to question 6 posed by McHugh J in Crimmins v Stevedoring Industry Finance Committee . It is also consonant with what, in my opinion, is the correct negative answer to the third question posed by Kirby J in that case. In my opinion the same conclusion flows from the approach adopted by the other members of the High Court in both Pyrenees Shire Council v Day and Crimmins v Stevedoring Industry Finance Committee . It is also a conclusion that is consonant with the law as stated in England.

[64]. For these reasons I am of the opinion that the claim of the plaintiffs against the defendant based upon actions by police officers in investigating, prosecuting and continuing the prosecution of the plaintiffs must fail.”

35 In Wilson, O’Keefe J held that an action for negligence does not lie in respect of the exercise of police of their investigative functions on the basis that the investigations were inadequate. O’Keefe J did not limit the police investigation to criminal matters only.

36 Hill, Elguzouli-Daf and Wilson were all proceedings that were summarily dismissed.

37 In Sullivan v Moody, the High Court in a joint judgment held that a duty of care was not owed to an alleged perpetrator of sexual assaults, by doctors and social workers who were engaged to investigate whether children had been the victims of such sexual assaults. Their Honours commented at par 53 that there were cases, such as the one before them, in which:

“…to find a duty of care would so cut across other legal principles as to impair their proper application and thus lead to the conclusion that there is no duty of care of the kind asserted.”

38 The High Court in Sullivan v Moody considered Hill, in which it was noted that the conduct of a police investigation involves a variety of decisions on matters of policy and discretion, including decisions as to priorities in the allocation of resources and stated (at [57] that “to subject those decisions to a common law duty of care, and to the kind of judicial scrutiny involved in an action of tort, was inappropriate.”

And at [60] the High Court in Sullivan v Moody continued:

“The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which the powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.”

39 The High Court in Sullivan v Moody held that a duty of care did not exist.

40 In Cran v State of New South Wales (2004) 62 NSWLR 95, the appellant claimed that the unnecessary prolongation of his imprisonment before trial caused him to suffer chronic post-traumatic stress disorder. The prolongation occurred because the Police and the Office of the Director of Public Prosecutions (“DPP”) both neglected to secure prompt analysis of certain items suspected to be prohibited drugs, namely, paper stickers suspected of being LSD, belonging to the appellant. The analysis occurred six weeks after it could have occurred had the Police correctly filled in a form indicating that the analysis was required for court proceedings or told the laboratory that the accused was in custody or, had the DPP asked the magistrate to request priority analysis as the accused was in custody. The delay in obtaining the analyst’s certificate meant that Mr Cran remained in custody for close to nine weeks. Eventually, the analysis revealed that the paper stickers did not contain a prohibited drug.

41 It was accepted that on a number of occasions while in custody Mr Cran was assaulted and had witnessed both a rape and a murder. The trial judge accepted that these experiences in custody caused distress and the unlawful detention caused the appellant humiliation and damaged his family relationships. As a result he suffered psychological injury including anxiety, post-traumatic stress disorder and increased alcohol abuse.

42 The failure in the case of the Police was essentially said to be in carrying out a ministerial step in the course of investigation. The DPP was treated as in like case, without any separate analysis of its position. The appeal centred around whether the State, represented by the Police and the DPP, owed, in the circumstances, a duty of care to the appellant.

43 Santow JA, (with whom Ipp and McColl JJA agreed) in referring to ministerial tasks said:

“[48] Indeed the difficulty in the way of the appellant's argument is this. Even ministerial tasks involve decisions as to priorities in the deployment of resources. Naturally mistakes in even mechanical tasks will occur. If the police were for fear of civil action to employ additional resources to check that forms were properly filled out, the scope for the kind of tragic mistake made in the appellant's case would, it is true, be greatly reduced. However, that may well involve an allocation of resources away from active police enforcement to administration, particularly if any administrative decision, even ministerial, were thereby rendered amenable to civil liability when performed carelessly. Moreover any extra checking might create its own delay, itself inimical to efficiency.

[49] In Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 553 [6],Gleeson CJ explains that “[d]ecisions as to raising revenue, and setting priorities in the allocation of public funds between competing claims on scarce resources, are essentially political”. He then makes clear (at 554 [7]) that “if the reasonableness of such priorities is a justiciable issue, that can be so only within limits”.

[50] The question here is whether rendering any aspect of police investigation and in particular what might be described as purely ministerial tasks amenable to civil liability exceeds those limits. In light of the strong dicta in Tame , an intermediate appellate court would necessarily be constrained in finding such an exception. This is so, even though its scope be modest, though the injured person be totally vulnerable and where the police or prosecutorial authorities have the entire power to control the situation that brought about that harm to the injured person. Thus McHugh J in Graham Barclay Oysters Pty Ltd (at 577 [84]), citing Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 39 [94], does recognise that there can be a supervening policy reason that denies the existence of a duty of care notwithstanding that there are other powerful factors pointing in its favour. Here recent, binding authority stands in the way of imposing a duty of care, more especially where it would tend to have an inhibiting affect upon the discharge of police investigative functions or associated prosecutorial functions, recognising the hardship this will undoubtedly occasion for those left without a remedy .

[51] While it may be said that calling police to account for failure to perform ministerial tasks actually enhances the performance of their duty, I do not consider that that resolves the fundamental difficulty. It is that by subjecting by way of exception mechanical tasks to a duty of care, courts are thereby affecting police priorities in the allocation of resources. Subjecting even ministerial tasks to prospective civil liability thus has policy implications.

[emphasis added]

44 Santow JA concluded:

“[63] Regrettably for the appellant in the unfortunate circumstances that were inflicted upon him, I consider that on present authority, the greater public interest accorded unimpeded investigation by the police and, so far as relevant, the DPP in carrying out its prosecutorial function, precludes any duty of care to the appellant. The current state of the law, and the policy which underlies it, gives paramount weight to those considerations even overriding the factors of vulnerability and entire dependency. This is so though the decision is itself ministerial. As Ipp JA explains, there is no bright line between the functions of disclosure and investigation, or between administrative and investigative tasks. Their efficient performance may be put at risk by the very prospect of civil action designed to provide sanctions against inefficiency; that, any rate, is the policy consideration reinforcing the immunity .

[64] The precise formulation of the asserted duty of care varied in the course of argument. But, however it is formulated, it is inconsistent with authority. It would create tensions in the law if not impair its coherence. The law recognises custodial liability to a prisoner on the gaoler's part as well as the distinct tort of false imprisonment. But it steadfastly denies civil remedy in relation to the police investigative function, save where there is an assumption of responsibility. I should add, so far as the office of the DPP is concerned, that while I do not suggest there that breach of the prosecutorial guidelines was deliberate, there was clearly a significant breach. …”

[emphasis added]

45 Recently the issue of the availability of a claim of negligence against a police officer or officers in relation to their performance of their duty was considered by the New South Wales Court of Appeal in State of New South Wales v Klein [2006] NSWCA 295. Paul Klein was a person known to police to have had previously exhibited signs of mental illness. On the night in question he was at his grandmother’s home and had a number of knives on the floor next to him. He became increasingly agitated and behaved aggressively towards his mother who was also in the house.

46 His mother contacted police and asked them to attend. The police officers were told that Mr Klein was armed with a knife and was under the influence of drugs and was acting irrationally. He refused to comply with directions given by the police officers and subsequently set a fire in the house. He was in possession of two knives, was inflicting injury to himself. The fire brigade attended the premises but could not gain access to the premises to extinguish the fire because of the conduct of the deceased. Almost two hours after police arrived at the house they shot Mr Klein and he died.

47 The claim was brought by the mother and father of Mr Klein, four of his siblings and a sister-in-law alleging a duty of care owed to them personally to avoid causing them psychiatric harm.

48 The claim was not particularly clearly pleaded but, apparently, the assertion which was sought to be pressed was that the relevant negligence alleged against police was “in terms of what could have been done to prevent or to minimise the risk that fatal force needed to be applied to contain the situation” – see judgment at [12]-[15].

49 The leading judgment was given by Young CJ in Eq, (with whom Beazley and Santow JJA agreed). At [24] Young CJ in Eq cited the following passage from the judgment of Ipp JA in Cran v State of New South Wales:

“The issue…is whether the police owed the appellant a duty of care. If they did, it was undoubtedly breached.
Our law has not yet recognised a duty of care of the kind asserted by the appellant (that is, in the circumstances in this case)…In my view the policy factors identified by Steyn LJ in Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 at 349 preclude the recognition of a duty of care owed by the police to persons in custody to take care in carrying out their duties.”

50 Young CJ in Eq recognised (at [32]) that there may be exceptions to what Lord Steyn called “the core principle in Hill’s case”. His Honour then made reference to Knightley v Johns [1982] 1 WLR 349, where the negligence was really that of the police authority towards its own constable, and Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242 where police were sued for damage caused to a building by fire where police were found to be negligent in firing a flammable gas into the building to overpower a psychopathic gunman without taking other measures which appeared to be available, to deal with the fire that, as was foreseeable, resulted from that action.

51 Young CJ in Eq in Klein concluded at [39]-[41]:

“[39] Apart from cases where the Police Service as employer is sued, it is clear that another situation where the police can be liable is where they have assumed a duty. As Santow JA said in Cran at [52] p110:

‘I turn now to what is nonetheless a recognised exception where a duty of care is allowed on current authority. It arises where the police or prosecutorial authorities expressly or impliedly assume responsibility, to the person injured, who was entirely dependent on an undertaking so expressed or implied.’


[40] An example was given in argument before us where the police assured a person in a siege that they had the situation under control and it was safe for them to emerge from their hiding place and then they were shot.

[41] In the present case, there is no allegation in the pleadings that the police assumed responsibility to the plaintiffs/respondents. Mr Scotting says that such an assumption should be implied from the circumstances. Whilst this is possible, the cases which have been referred to in these reasons show that it is very difficult indeed for a plaintiff to say that merely because the police were in charge of an operation they thereby impliedly assume responsibility to any individual who was in the vicinity . As Mr Marshall put it in argument, to take this step involves equating capacity with obligation (T31). It is not alleged in the pleadings that there was any assumption of responsibility to any of the plaintiffs nor do the facts pleaded throw up any such allegation.”

[emphasis added]

52 However, specific assumption of responsibility is not the case pleaded by the Cumming family and, as explained by Santow J in Cran v State of New South Wales at [52] - [61], that area of exemption to the general rule is likely to be a very narrow area. In Klein, Young CJ in Eq at [43] concluded that there was no is no duty of care on a police officer to people such as the Klein family unless they can fit themselves within either a case of express or implied assumption of responsibility or one of the possible extraordinary situations. The pleadings and the facts showed neither and the claim, on appeal, was summarily dismissed.

53 Counsel for the Cumming family referred to State of NSW v Tyszyk [2008] NSWCA 107 and Kirkland-Veenstra v Stuart [2008] VSCA 32. On 23 May 2008 the High Court granted special leave to appeal in Kirkland-Veenstra.

54 In Tyszyk a member of the public called the police station to report that a drainpipe on a building in Kings Cross was loose and about to fall on someone. At 13:07 the police attended the scene and spent some time attending to the tree which had fallen down and block the single lane along which the traffic could flow. Mr Tyszyk parked his vehicle adjacent to the building. He alighted from the vehicle, took one step and when he walked to the rear of the truck he looked up and saw the pipe hanging off the building. The pipe came away from the building and hit him.

55 Importantly, in its amended defence the police denied the existence of any duty of care to the respondent. The only argument put concerning duty of care in the court below was to the effect that there was no duty of care because the police were engaged in an investigation. That argument was rejected by the trial judge, on the basis that any investigation that the constables engaged in was over virtually as soon as they arrived and had established that there was indeed a dangling downpipe, and its location. Thus, whether the police owed Mr Tyszyk a duty of care did not arise out of investigation. The investigation was over when Mr Tyszyk was struck by the drainpipe.

56 I shall focus on the judgment of Campbell JA In Tyszyk but this is a minority judgment; Mason P agreed with Giles JA. Giles JA agreed with Campbell JA but only in relation to his reasons for dismissal of the cross appeal. The cross appeal was against the building owner.

57 Campbell JA in Tyszyk stated at [119]-[131]:

“119 The State placed reliance in its submissions on the importance of public policy, of the type recognised by the House of Lords in Hill , as a reason for not recognising the existence of a duty of care in the present case. In assessing that argument one must bear in mind that the decision in Hill has been referred to with approval in the High Court of Australia ( Sullivan v Moody at [57]; D’Orta Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [101] per McHugh J) and in this Court: ( New South Wales v Godfrey [2004] NSWCA 113 at [33], [68], [72]; New South Wales v Paige [2002] NSWCA 235; (2004) 60 NSWLR 371 at [115]; New South Wales v Heins [2005] NSWCA 258 at [24]; New South Wales v Klein [2006] NSWCA 295.

120 In my view, public policy factors of the type identified in Hill are not sufficient to lead to a conclusion that there is no duty of care in the present case.

121 Hill is not authority that there was immunity from liability in negligence for police officers in all circumstances. In Hill Lord Keith specifically said, at 59:

“There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence. Instances where liability for negligence has been established are Knightly v Johns [1982] 1 WLR 349 and Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242.”


122 When introducing the public policy basis upon which he held there was no liability his Lordship said there was a reason “why an action for damages in negligence should not lie against the police in circumstances such as those of the present case, and that is public policy” (at 63, emphasis added). His reasoning concerning why public policy resulted in there being no duty of care owed was stated with reference to the matters that are involved in investigation of crime, and his conclusion at 64 was that “the police were immune from an action of this kind” .

123 It seems to me that the principle that Hill stands for is that, when there is a criminal at large who has demonstrated a propensity to commit crimes against a particular group of people, and that group of people is a large one, police owe no duty of care to persons who might become a victim of that criminal, concerning the strategies adopted and resources to be employed in seeking to identify and arrest that criminal.

124 There will be some other types of situation when public policy considerations like those which led to the conclusion of lack of duty in Hill also lead to the conclusion that there is no duty of care owed in that other situation and, but each situation must be considered in the light of its own facts.

125 Partly on the basis of Hill , a wider principle than Hill itself articulated has been accepted both in the House of Lords and in the High Court of Australia. It is that a “common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties”:X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 739; Sullivan v Moody at [30] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ. The High Court also said, in Sullivan v Moody at [60]:

“… when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of the specified class of persons, the law would not ordinarily subject them to a duty to have regards to the interests of another class of persons where that would impose upon them conflicting claims or obligations.”

126 The approval given to Hill in the joint judgment of in Sullivan v Moody at [57] was in a context where their Honours were considering the way in which the need for coherence in the law affected whether a duty of care would be held to be owed by a particular defendant to a particular plaintiff. They said, at [55]:

"A duty of the kind alleged should not be found if that duty would not be compatible with other duties which the respondents owed."

127 At [57], their Honours drew on Hill as an illustration of how the functions, powers and responsibilities of the various persons and authorities who are alleged to owe the duty relates to the existence of the duty:

"In Hill … the House of Lords held that police officers did not owe a duty to individual members of the public who might suffer injury through their careless failure to apprehend a dangerous criminal. Lord Keith of Kinkel pointed out that the conduct of a police investigation involves a variety of decisions on matters of policy and discretion, including decisions as to priorities in the deployment of resources. To subject those decisions to a common law duty of care, and to the kind of judicial scrutiny involved in an action in tort, was inappropriate."


128 Those remarks in no way suggest that, in all their activities, police have immunity from action for negligence.

129 In the present case, there is only one factor concerning which there is even an argument that public policy factors or the need for “coherence” lead to denial of a duty of care. It arises from the fact that the constables on the scene were faced with a choice between continuing to give all their attention to the drainpipe, and dealing with the fallen tree. They obviously decided, in exercise of their discretion as police officers, to give some of their time and attention to the fallen tree.

130 However I do not see how recognition of a duty of care to the Respondent would be incompatible with any other relevant duty that the constables owed. It might, at best, increase the tendency of constables to give attention to protecting people from physical injury rather than dealing with public nuisances, but I do not see that as incompatible with any of the duties that the constables owe. …

131 Turning to other factors relied on in Hill , investigation of whether the constables acted appropriately in deciding to give their attention to the fallen tree involves no real question of policy decisions about resource allocation. It raises questions of no greater complexity than many another negligence action, such as deciding whether a police officer drove negligently. There is no topic involved into which it is inappropriate for courts to intrude.

58 Campbell JA considered whether there was a duty of care owed to Mr Tyszyk considering various factors namely the class to whom the police owed public duty, that the police did not engage in any positive act in a negligent fashion and control and vulnerability. His Honour considered that Mr Tyszyk was not vulnerable because all he had to do was look up to become aware of the potential danger and that there was nothing in the relationship that the police had to Mr Tyszyk to put them into a different situation so far as owing a duty of care was concerned, to that of any other member of the public who was on the scene. His Honour concluded that the constable did not owe a duty of care to Mr Tyszyk.

59 Kirkland-Veenstra was an appeal from the County Court in relation to a claim for damages in negligence relating to a statutory power arising under section 10 of the Mental Health Act (Vic) 1986. The trial judge had dismissed the matter after eight days on the ground that it was ‘impermissible’ to translate a statutory power into a common law duty and therefore the duty of care alleged by the appellant did not exist in law. The appellant was Tania Kirkland-Veenstra, the first and second respondents were two police officers and the third respondent was the State of Victoria argued to be vicariously liable.

60 Mrs Kirkland-Veenstra claimed that the two police officers owed her husband, Mr Veenstra, a duty of care to take reasonable steps to protect him from foreseeable injury, being suicide, and that they also owed Mrs Kirkland-Veenstra a duty to take reasonable steps to protect her from foreseeable injury, being psychiatric injury resulting from her husband’s suicide.

61 The events that gave rise to these proceedings revolve around the suicide of Mr Veenstra, the appellant’s husband, in August 1999. Mr Veenstra, a certified practising accountant, had been forced to resign his job following police investigation of fraudulent business transactions. Mr Veenstra was interviewed by police on three occasions and was to be served with a hand-up brief containing criminal charges of this nature on the afternoon he was found dead. At around 5.40 am on the day Mr Veenstra died, the police officers were undertaking a routine patrol when they observed a single car parked in a remote public car park. The officers noted that the car had a tube running from the exhaust of the car through to the rear window however on approaching the car they saw that the driver’s side window of the car was open, the engine was not running and the bonnet and radiator were cold. The officers introduced themselves to the driver in the car, Mr Veenstra, and after talking with him for some time, checking the vehicle and running both a licence check and personal history check, the police officers assessed that the individual showed no signs of mental illness, and was rational, co-operative and responsible and as such was not a current risk of self-harm. The officers offered to make contact with a doctor, Mr Veenstra’s family or the Crisis Assessment Team. Mr Veenstra refused these offers and stated that he would see his own doctor later on.

62 The officers were both experienced and familiar with their powers under s 10 of the Mental Health Act (Vic) to apprehend a person who appeared to have a mental illness and to have attempted, or to be likely to attempt, suicide. This power was not exercised by the officers who allowed Mr Veenstra to leave the carpark, although the officers noted in the patrol log at the end of the shift, that Mr Veenstra was depressed and made reference to suicide.

63 After the incident with the officers Mr Veenstra returned home and had a brief converstaion with his wife before she left to attend a dog show. Between this time and when his body was discovered at 2.30 pm that day, Mr Kirkland-Veenstra committed suicide by asphyxiation within the grounds of his home, by securing a hose from the exhaust of his vehicle and starting the engine.

64 The Victorian Supreme Court granted an appeal from the County Court decision by a two to one majority. Warren CJ and Maxwell P clearly distinguished the matter before them from ‘police cases’ such as Hill, Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495 and Tamev NSW (2002) 211 CLR 317 which are ‘concerned with police activities in the investigation of crime, the recording of information in the course of that investigation and the administration of the criminal justice system’ (at par [29]) and confined themselves to cases where a duty arises out of failure to exercise a statutory power.

65 Warren CJ at [29] stated “the present is not a case about law enforcement. It concerns a specific power vested in a special category of persons to prevent self-harm of the gravest kind. Further, it concerns a category of persons with authority and capacity to intervene”. After a review of the cases involving statutory powers Warren CJ held that a duty existed, to both the applicant and Mr Veenstra, to exercise power under s 10 of the Mental Health Act (Vic) but did not determine whether such a duty was breached. Maxwell P agreed that the case was not concerned with the officer’s duty of criminal investigation ([107] and[112]) and differed only slightly in his reasoning in finding a common law duty did arise in these circumstances. Chernov JA’s reading of s 10 saw the discretion to exercise the power in the context of the duty to maintain public order, a duty that is owed to the public generally and not to any individual member of it and, as such, the imposition of a common law duty on such a police officer would be contrary to the framework of the Mental Health Act (Vic). On this reasoning his Honour found no common law duty arose to either Mr Veenstra or the appellant.

66 Returning to these current proceedings, strictly speaking Kirkland-Veenstra involves the failure of the police to exercise a statutory power, which is not the case here. In these current proceedings the investigation was in relation to the report of a missing person. When the body was found, the police would have had to decide whether, in the circumstances, a criminal investigation was warranted or not. While it may be arguable that the proceedings do not involve a criminal investigation, they certainly involve a police investigation of some kind. There are four main considerations that have led the courts deciding that there is no duty of care arising in respect of a police investigation. They are firstly, that it would impose a duty to an indeterminate class of people; secondly; it would inhibit the fearless investigation of criminal activity; thirdly, there may be a conflict of duties; and finally it would involve the court intruding on matters of police policy and discretion including decisions made as to priorities in the deployment of resources.

67 The police were involved in an investigation. If a duty of care was owed, it would be owed to the missing persons and the families of those missing persons. Hence, it is arguable that the indeterminate class consideration does not apply to the circumstances of this case. It is possible that investigations conducted by the missing persons unit sometimes involve investigations of foul play and at different stages of a missing persons investigation, criminal activity may be suspected. As to a conflict of duties, sometimes the interest of the missing person may be the same as those of their families. Other times they may not. Finally, the officer-in-charge of the missing persons unit conducting investigations must make decisions involving a variety of matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. The nature, extent and time of the investigation will be conditioned by a number of factors.

68 As previously stated, this is not a case where it is pleaded that the police assumed a responsibility. Nor is it a case that falls within the exceptions referred to in Hill. Tsyzyk does not assist as the investigation in the current case was not over when the negligence occurred. I have examined the cases in the light most favourable to the plaintiffs but regrettably I have reached the conclusion that the argument, that the police owe the Cumming family a duty of care as pleaded in the statement of claim, is hopeless. The plaintiffs’ amended statement of claim is dismissed as against the first defendant.

69 Costs are discretionary. Costs normally follow the event. The plaintiffs are to pay the first defendant’s costs of the motion and of the proceedings as agreed or assessed.

The Court orders

(1) The plaintiffs’ amended statement of claim filed 27 February 2008 is dismissed as against the first defendant.

(2) The plaintiffs are to pay the first defendant’s costs of the motion and of the proceedings as agreed or assessed.
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