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Kirkland-Veenstra v Stuart

Kirkland-Veenstra v Stuart

Case [2008] VSCA 32 29 February 2008

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3737 of 2006

TANIA KIRKLAND-VEENSTRA
	Appellant
v.
DAVID STUART & ORS	Respondents

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JUDGES:	WARREN CJ, MAXWELL P and CHERNOV JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 May 2007
DATE OF JUDGMENT:	29 February 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 32

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NEGLIGENCE – Duty of care – police – failure to exercise statutory power – power to detain mentally ill – suicide of person not detained – salient features – Mental Health Act 1986 (Vic) s 10 – Pyrenees Shire Council v Day (1998) 192 CLR 330 applied.

NEGLIGENCE – Duty of care – psychiatric injury – psychiatric injury suffered by wife of deceased who committed suicide – whether duty of care owed by police to wife of deceased – Jaensch v Coffey (1984) 155 CLR 549 applied.

APPEARANCES:	Counsel	Solicitors
For the appellant	Mr JHL Forrest QC with Mr P Halley	Slater & Gordon
For the first and second respondents	Mr J Ruskin QC with Ms R Orr	Victorian Government Solicitor
For the third respondent	Mr BM Dennis	Deacons

WARREN CJ:

This appeal arises from a trial held in the County Court in which the appellant, Tania Kirkland-Veenstra, brought proceedings against the first and second defendants, police officers Stuart and Woolcock, for damages in negligence, a claim under Part III of the Wrongs Act 1958 and a claim for breach of statutory duty. Each action arose from the suicide of the appellant’s husband, Ronald Hendrik Veenstra, on 22 August 1999. The appellant made a further claim for damages from the third respondent, the State of Victoria alleging that the State was vicariously liable for the conduct of the first and second defendants, pursuant to s 23 of the Crown Proceedings Act1958 or alternatively liable pursuant to s 123 of the Police Regulation Act1958.

The appellant alleged, among other matters, that:

(a) the first and second respondents owed Mr Veenstra a duty of care to take reasonable steps to protect him from reasonably foreseeable injury, being suicide;
(b) the first and second respondents owed the appellant a duty to take reasonable steps to protect her from reasonably foreseeable injury, being psychiatric injury resulting from the suicide of Mr Veenstra.

The appellant further alleged that these duties arose at common law and pursuant to s 10 of the Mental Health Act 1958.

The trial proceeded before a judge and a jury of six. After eight days of hearings, the judge dismissed the proceeding on the ground that the duties of care alleged to be owed to Mr Veenstra and the appellant by the defendants did not exist at law. Allegations and issues relating to the other elements of negligence were therefore not decided.

The appellant appeals the decision of the County Court judge on eight grounds:

Grounds 1 and 3: the trial judge erred in his findings that the first and second defendants’ did not owe a duty of care to Mr Veenstra to take reasonable…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kirkland-Veenstra v Stuart

Details

AGLC: Kirkland-Veenstra v Stuart [2008] VSCA 32
Case: [2008] VSCA 32
Decision Date: 29 February 2008

CaseChat Overview and Summary

In the case of Kirkland-Veenstra v Stuart, the plaintiff sought damages from the defendant police officers for their alleged negligence in failing to exercise a statutory power to detain the plaintiff's husband, who subsequently committed suicide. The case was heard in the Supreme Court of Victoria. The plaintiff's husband, who had a history of mental illness, was assessed by the defendant officers at his home but was not detained under the Mental Health Act 1986 (Vic). Following this incident, the plaintiff's husband took his own life, and the plaintiff suffered psychiatric injury as a result.

The primary legal issue before the court was whether the defendant officers owed a duty of care to the plaintiff for their failure to exercise the statutory power to detain the plaintiff's husband. This involved determining if the officers' conduct fell within the "salient features" test, as established in Pyrenees Shire Council v Day (1998) 192 CLR 330. Additionally, the court had to consider whether a duty of care was owed to the plaintiff for the psychiatric injury she suffered as a result of her husband's suicide, in line with the principles set out in Jaensch v Coffey (1984) 155 CLR 549.

The court found that the officers' failure to exercise the statutory power did not give rise to a duty of care towards the plaintiff, as it did not fall within the "salient features" test. The court held that the officers' actions were not so closely connected to the plaintiff's injury as to give rise to a duty of care. Furthermore, the court determined that no duty of care was owed to the plaintiff for the psychiatric injury she suffered due to her husband's suicide, as it was not reasonably foreseeable that such injury would result from the officers' actions.

As a result of the court's findings, the plaintiff's claim for damages was dismissed. The court held that the defendant officers were not liable for the plaintiff's losses.

Orders