Kirkland-Veenstra v Stuart

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 steps to protect him from reasonably foreseeable injury being suicide.

Grounds 2 and 4: error in the findings that the first and second respondents did not owe a duty to the appellant to take reasonable steps to protect her from reasonably foreseeable injury, being psychiatric injury consequent upon the suicide of Mr Veenstra.
Ground 5: error in discharging the jury.
Ground 6: error in giving insufficient reasons for judgment.
Ground 7 and 8: error in making particular findings, or that the findings were against the weight of evidence or not open on the evidence.

The background facts

At the time of his death, Mr Veenstra was 37 years old. He and the appellant married in 1998. He was a certified practising accountant who had worked as a finance manager for Peter Dullard Ford between 1993 and 1998. Evidence at the trial disclosed that Mr Veenstra was forced to resign as a result of his employer’s perception that he had been involved in a fraudulent business transaction. In October 1998, the police interviewed Mr Veenstra at Hastings Police Station in relation to alleged fraudulent business transactions relating to his work at Peter Dullard Ford. He was interviewed by the police on two subsequent occasions up to June 1999.

On 20 August 1999, the police arranged to serve Mr Veenstra on 22 August 1999 with a hand-up brief containing criminal charges in relation to the alleged fraudulent business transactions. Prior to service, Mr Veenstra and the appellant were made aware of the pending brief. Mr Veenstra is said to have discussed these events with the appellant stating that he was very upset by the charges and that he would contest them.

As at 22 August, Mr Veenstra worked as a business manager with John Drake. He also worked as a delivery driver for a fish and chip shop and cleaner for a cleaning firm at McDonalds Tower Hill. The appellant was a payroll/personnel officer with the Victoria Police.

At about 5.40 am on 22 August 1999, the first and second respondents were undertaking a routine patrol of the Mornington peninsula area in their unmarked vehicle when they observed a car parked at Sunnyside Beach public carpark. The vehicle was the only vehicle in the carpark at the time. The officers noted that the carpark was a remote place to be parked at that time of the morning and that the car had a tube running from the exhaust of the car through to the rear window. There was no packing on either side of the tube, but the tube was held in place by plastic packing tape. Evidence at trial revealed that the first and second respondents discussed, for reasons of risk management and safety, how they would approach the car. As they approached, they noticed 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, dressed in plain clothes, introduced themselves to the driver in the car, Mr Veenstra, using their identification badges. The first and second respondents were concerned for Mr Veenstra for different reasons. The first respondent formed the opinion that Mr Veenstra was contemplating suicide and was a current threat of deliberate self harm. The second respondent was concerned for Mr Veenstra’s welfare as it appeared he may have been trying to harm himself. He believed that Mr Veenstra had contemplated suicide and had changed his mind.

The respondents spoke to Mr Veenstra. In summary, their evidence at trial about their conversation with Mr Veenstra was to the effect that:

·He had been sitting in the carpark for two hours before they arrived;
·He confirmed that he had contemplated doing “something stupid” when asked about the tubing into the vehicle;
·He did not use the word suicide, but it was apparent to the officers that suicide was the ‘stupid’ thing to which he was referring;
·He was in a ‘loveless’ marriage and was writing these thoughts to his mother before the respondents had arrived;
·He was going to return home and discuss matters with his wife;
·He described himself as an intelligent person and that there were other options open to him other than that which he had been contemplating;
·He showed no signs of mental illness; he was rational, cooperative and very responsible the entire time;
·He had removed the hose from the exhaustion and placed it in the vehicle; and
·He would not allow the respondents to look at what he had written.
·Mr Veenstra was writing what appeared to be a suicide letter, but the respondents did not consider that they had sufficient power to seize the notes.

The respondents had checked the vehicle and its contents. No medication, alcohol or drugs were in the car. The respondents noted a vacuum cleaner on the floor of the rear of the car. The car did not harbour any exhaust fumes. They had made inquiries through the police radio system for a vehicle check, licence check and personal history check, and found that neither the vehicle nor the driver was listed as missing nor Mr Veenstra a wanted person. The information in the police system matched that provided by Mr Veenstra. The respondents offered to make contact with a doctor, Mr Veenstra’s family or the CAT team. Mr Veenstra refused these offers and stated that he would see his own doctor later on.

As observed by the trial judge:

both officers said that Mr Veenstra presented no indication of significant disturbance of thought or perception, memory or mood. However, they considered him to be depressed, which Mr Stuart [one of the officers] later qualified as being unhappy.[1]

[1]Judgment, p6, lines 8-12

The trial judge also observed that:

Both officers were of the same opinion. Mr Veenstra showed no sign of mental illness; he was rational, cooperative, very responsible the entire time. During this time, Mr Veenstra removed the hose from the exhaustion and placed it in the vehicle. It was a voluntary act on his part and not the product of a suggestion by the police.

The first and second respondents, who were both experienced officers at the time, were familiar with the Mental Health Act 1986 and their power to apprehend a person who appeared to have a mental illness and to have attempted, or to be likely to attempt, suicide. The respondents did not exercise that power and allowed Mr Veenstra to leave the carpark. The incident lasted approximately 15 minutes. The two police officers later returned to their police station. In their patrol log at the end of the shift, they noted that Mr Veenstra was depressed and made reference to suicide but took no steps.

At 9.00 am that morning, the appellant woke to find her husband at home, lying in the lounge room. They discussed their planned trip to a dog show that day and Mr Veenstra indicated that he did not want to go. The appellant left without him. At some time between mid-morning and 2.30 pm that day, Mr 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. At about 2.30 pm, the appellant’s father found Mr Veenstra and tried to revive him. Shortly thereafter, the appellant returned home and saw her husband lying on the ground. The appellant administered CPR and tried to revive him orally. However, she was unsuccessful and immediately went into shock. Mr Veenstra had left a suicide note. Also present at that time of the discovery and treatment of Mr Veenstra was a police officer, Sergeant Baines, who was at the property having made an arrangement with Mr Veenstra through his wife to serve the hand-up brief in relation to the alleged fraudulent business transactions.

The issues

At the commencement of the hearing, counsel for the appellant conceded that the duty of care alleged to be owed to the appellant could not exist without a finding that there was a duty owed to Mr Veenstra.

Therefore, the first issue to be determined is whether the respondents owed Mr Veenstra a duty of care.

The law & its application

The alleged duty to Mr Veenstra is said to be a common law duty arising in the context of the statutory powers vested in the first and second respondents by way of s 10 of the Mental Health Act 1986. That section states that:

Apprehension of mentally ill persons in certain circumstances
1) A member of the police force may apprehend a person who appears to be mentally ill if the member of the police force has reasonable grounds for believing that –
a) the person has recently attempted suicide or attempted to cause serious bodily harm to herself or himself or to some other person; or
b) the person is likely by act or neglect to attempt suicide or to cause serious bodily harm to herself or himself or to some other person.

Whether a duty of care exists in a novel situation is a question of law but is determined by reference to the factual context. Tests for foreseeability, proximity,[2] incremental development by analogy[3] and salient features[4] fall to be considered.
[2]Jaensch v Coffey (1983) 155 CLR 549.
[3]Sutherland Shire Council v Heyman (1985) 157 CLR 424, 481 (‘Heyman’).
[4]Graham Barclay Oysters v Ryan (2002) 211 CLR 540 (‘Graham Barclay Oysters’).

The High Court has expressed the approach as one of considering the ‘salient features’ of the factual scenario and looking to the ‘totality of the relationship’.[5] There is no single, formulaic test to be applied. Consideration should be given to all relevant factors, such as: the reasonable foreseeability of the risk of harm, the defendant’s knowledge of the risk, the control exercisable by the defendant over the situation and the vulnerability of the person or persons at risk. In addition, analogous situations in the authorities provide guidance. The factual similarity or difference between decided cases and the case at hand enable incremental development.
[5]Sullivan v Moody (2001) 207 CLR 562; Graham Barclay Oysters v Ryan (2002) 211 CLR 540.

Statutory authorities, including the police, may be seen to be a special subset of defendants, given their unique position as holders of statutory powers and often competing responsibilities to various individuals, groups and interested parties. It is necessary to consider some of those cases by way of analogy and differentiation.

In Home Office v Dorset Yacht Co Ltd,[6] the owners of a yacht moored near a custodial institution brought proceedings against the Home Office for damage caused by seven escaped prisoners. The House of Lords held that a duty was owed because, among other reasons, of the small, particular, identifiable class of persons to whom it was owed and the prisoners had been in the custody of the defendant.
[6]Home Office v Dorset Yacht Co Ltd [1970] AC 1004 (‘Dorset Yacht’).

However, in Hill v Chief Constable of West Yorkshire,[7] the House of Lords held, on two bases, that the police were not liable in negligence for failing to prevent the murder of the plaintiff’s daughter by a serial rapist. First, the distinguished Dorset Yacht on the grounds that there was no small, discernable class to whom the duty was owed, nor had the perpetrator been in police custody and, hence, there were no ‘special characteristics or ingredients beyond reasonable foreseeability of likely harm’.[8] Secondly, the court considered that there were strong public policy reasons against finding a duty. As expressed by Lord Keith of Kinkel in the lead judgment:
[7][1989] AC 53, 63-64 (‘Hill’).
[8]Hill [1989] AC 53, 62.

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. [9]
[9]Ibid 63-4.

In Brooks v Commissioner of Police of the Metropolis,[10] the House of Lords held that a duty of care was not owed by police to victims or witnesses in respect of the investigation of suspected crimes. In that case, Brooks was the key witness to, and the surviving witness of, a violent, racially-motivated attack which had resulted in the murder of Brooks’ friend who was also present. An inquiry found that the subsequent investigation by the police was very badly conducted and that Mr Brooks was treated very poorly. Brooks brought proceedings against the Commissioner of Police, several police officers and the prosecutor on various grounds, including negligence and breach of statutory duty. The House of Lords held that no such duties existed because if they did, they would:

tend to inhibit a robust approach to assessing a person as a possible suspect, witness or victim. By placing general duties of care on the police to victims and witnesses the police’s ability to perform their public functions in the interests of the community, fearlessly and with despatch, would be impeded. It would, as was recognised in Hill’s case, be bound to lead to an unduly defensive approach to combating crime. [11]

[10][2005] 1 WLR 1495, 1510 (‘Brooks’)

[11]Brooks [2005] 1 WLR 1495, 1510 A-B (Lord Steyn).

In Tame v NSW,[12] the driver of a car was involved in a traffic accident. A police officer mistakenly recorded in his accident report that the driver had a blood alcohol level of 0.14 when it was in fact nil. Whilst the error was picked up and the insurer admitted liability, the driver, upon being told that the error had been made, became obsessed with it and developed a psychiatric disorder and brought proceedings in negligence. The High Court held that a police officer (and vicariously, the State) did not owe a duty to take reasonable care to avoid psychiatric injury to the driver as the injury was not reasonably foreseeable.
[12](2002) 211 CLR 317 (‘Tame’); See also Halech v State of South Australia [2006] SASC 29.

In that case, Gummow and Kirby JJ held:

It is unlikely that an investigating police officer owes a duty of care to a person whose conduct is under investigation. Such a duty would appear to be inconsistent with the police officer’s duty, ultimately based in the statutory framework and anterior common law by which the relevant police service is established and maintained. [13]

[13]Tame v NSW; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, [231] (‘Tame and Annetts’).

Notably, McHugh J held:

It is unnecessary to decide whether the administrative obligations of [the police officers] negated the existence of a duty of care. My strong inclination is that police officers recording material relating to the administration of criminal justice have no duty to be careful to those affected by the material recorded. They should not have the burden of determining whether they have a duty of care in respect of every recording they make in the course of their duties. A blanket rule of no duty of care seems more in accord with the efficient administration of criminal justice than a case by case examination of each recording.[14] [15]

[14]Ibid [126].

[15]See also Cran v State of New South Wales (2004) 62 NSWLR 95, particularly [83]..

In this case, counsel for the respondents submitted that to impose a duty of care with respect to a discretion to compulsorily detain another person would introduce a ‘distortive influence’ on the exercise of the discretion[16] or would result in a ‘detrimentally defensive frame of mind’.[17] However, in my view, the ‘police cases’ are a distraction. Those cases 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. The facts here concern a different component of the role of the police officer and must be considered in the context of the legislation. In my view, the present situation is more closely analogous to the cases involving statutory authorities, in particular Pyrenees Shire Council v Day,[18] to which I will turn shortly.
[16]See Hunter Area Health Service v Presland (2005) 63 NSWLR 22, [368], [378]-[379] (Santow JA) (‘Presland’).
[17]See Hill [1989] AC 53, 63 (Lord Keith).
[18](1998) 192 CLR 330 (‘Pyrenees’).

In the cases involving statutory powers, a distinction has been drawn between the nonfeasance and the misfeasance of statutory power. As described by Brennan J in Sutherland Shire Council v Heyman:

There is a distinction between a case where the repository of a statutory power does something which creates or increases the risk of foreseeable damage and that damage occurs and a case where a person is able to foresee that damage might occur but does nothing to cause it. In the first case, if he takes no reasonable steps to prevent the occurrence of the damage, he is negligent; in the latter, he is not. [19]

[19]Heyman (1985) 157 CLR 424, 479.

That is, more than foreseeability is required to ground a claim of nonfeasance.[20] The approach for determining what more is required was articulated in Crimmins v Stevedoring Industry Finance Committee.[21] In that case, a statutory authority, which had statutory powers to oversee the safety of particular workplaces, was held liable for the injury suffered by a waterside worker. The Court held that the authority had a duty to protect the worker from reasonably foreseeable risks arising from the workplace. McHugh J articulated a six part test to determine whether a duty exists. His Honour stated that:
in a novel case where a plaintiff alleges that a statutory authority owed him or her a common law duty of care … the issue of duty should be determined by the following questions:
1. Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests? If no, then there is no duty.
2. By reason of the defendant’s statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no, then there is no duty.
3. Was the plaintiff or were the plaintiff’s interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If no, then there is no duty.
4. Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, then there is no duty.
5. Would such a duty impose liability with respect to the defendant’s exercise of ‘core policy-making’ or ‘quasi-legislative’ functions? If yes, then there is no duty.
6. Are there any other supervening reasons in policy to deny the existence of a duty of care (eg, the imposition of a duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? If yes, then there is no duty.[22]

[20]Ibid.

[21](1999) 200 CLR 1 (‘Crimmins’).

[22]Crimmins (1999) 200 CLR 1, [93].

Whilst these six questions are not, and should not be, prescriptive, they assist in understanding the issues to be considered. McHugh J’s approach seems to have been augmented by Graham Barclay Oysters Pty Ltd v Ryan,[23] in which Gummow and Hayne JJ considered the ‘salient features’ of the particular relationship:

An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial. It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. (Footnotes omitted).[24]

[23](2002) 211 CLR 540.

[24]Ibid [149].

Their Honours went on:

The co-existence of knowledge of a risk of harm and power to avert or to minimise that harm does not, without more, give rise to a duty of care at common law. The totality of the relationship between the parties, not merely the foresight and capacity to act on the part of one of them, is the proper basis upon which a duty of care may be recognised. Were it otherwise, any recipient of statutory powers to licence, supervise or compel conduct in a given field, would, upon gaining foresight of some relevant risk, owe a duty of care to those ultimately threatened by that risk to act to prevent or minimise it.[25]

[25]Ibid.

Drawing upon these authorities, in Hunter Area Health Service v Presland[26] Spigelman CJ considered McHugh J’s approach in light of Graham Barclay Oysters and went on to articulate four matters of significance in determining the existence of a duty of care:

1) the purpose to be served by the exercise of the power;
2) the control over the relevant risk of the depository of the power;
3) the vulnerability of the persons put at risk; and
4) coherence. [27]

[26](2005) 63 NSWLR 22.

[27](2005) 63 NSWLR 22, [11].

His Honour placed particular emphasis on control:

On the issue of control, Gummow J and Hayne J said in Graham Barclay Oysters Pty Ltd (at 598, [150]): ‘The factor of control is of fundamental importance in discerning a common law duty of care on the part of a public authority’. (footnoted omitted)
This sentence reiterated the approach adopted in the joint judgment of Gaudron J, McHugh J and Gummow J in Brodie (at 559 [102]):
‘[102] … [O]n occasions, the powers vested by the statute in a public authority may give it such a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care. This may oblige the particular authority to exercise those powers to avert a danger to safety or to bring the danger to the knowledge of citizens otherwise at hazard from the danger. In this regard, the factor of control is of fundamental importance’ (footnotes omitted)
The significance of control has also been emphasised in a number of authorities including Crimmins; Modbury Triangle Shopping Centre Pty Ltd v Anzil; see also Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn v Ashrafinia (2002) Aust Torts Reports 81-636 (68,314) at 68,335 [64]-[69]. [28]

[28]Presland (2005) 63 NSWLR 22, [14]-[16].

The facts of Presland were unusual. A psychiatrist discharged a patient from hospital and shortly thereafter the patient killed his brother’s fiancée. The patient was acquitted of murder on the ground of mental illness and was detained in strict custody as a forensic patient. He sued the psychiatrist and the hospital in negligence, claiming that they had failed to care for and restrain him in circumstances where he was at risk of harming himself or others, and that he had suffered harm by reason of his detention as a forensic patient. The power to detain the patient was provided under the Mental Health Act 1990 (NSW). Accordingly, the determination as to whether a common law duty arose had to be made in the context of that Act. As stated by Spigelman CJ:

What is not authoritatively established, on the authorities, is the degree to which the scope and purpose of the power defines the scope or extent of the duty. Nevertheless, where the power is conferred for the purpose of protecting, inter alia, the plaintiff, from a risk that has materialised, that is a factor entitled to considerable weight and will, in the ordinary case, be determinative on the issue of scope of duty. [29]

[29]Presland (2005) 63 NSWLR 22, [13] (in dissent).

On close analysis of the statute, his Honour concluded that the harm suffered by the patient did not fall within the ‘intended sphere of protection to which the statutory provisions expressly relate’.[30] Sheller and Santow JJA considered that the nature of the harm suffered pointed ‘as a matter of commonsense against the existence of a legal responsibility for that harm’.[31]
[30]Presland (2005) 63 NSWLR 22, [29] (Spigelman CJ).
[31]Presland (2005) 63 NSWLR 22, [300] (Sheller JA).

In addition to these three cases, there are several other authorities reconcilable with, if not expressly applying, the ‘salient features’ approach articulated in Graham Barclay Oysters[32] and the need to consider the ‘totality of the relationship’.[33]
[32]Graham Barclay Oysters, above n 13.
[33]See eg Perre v Apand Pty Ltd (1999) 198 CLR 180; Agar v Hyde (2000) 201 CLR 552; Gandy v State of Victoria [2006] VSC 480.

As noted earlier, the High Court has emphasised that there is no ‘checklist’ or formula for determining whether a duty exists. It is a question to be determined in the context of the factual matrix. Particular features will be weighted more or less heavily than others in any given situation. A weighing, and assessment, of each of the various elements that are particular to the situation is to be made before the issue can be determined. These elements may include: control, vulnerability, knowledge, coherence of the law and determinacy of the person or class of persons at risk will be relevant. There must also be consideration of any potential conflict of duties and public policy issues. These latter issues are particularly relevant in matters involving members of the police, who necessarily engage in law enforcement and the keeping of the peace.[34]
[34]See eg Enever v R (1906) 3 CLR 969; AG (NSW) v Perpetual Trustee Co (1951-52) 85 CLR 237.

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. His Honour was led into error relying on a series of cases that had nothing to do with the case before the court. Section 10 is a statutory provision concerned with persons who are ill and contemplating suicide. In this respect, the present case was similar to Presland[35] which was a case about a specific power. Hence the issue here is whether a duty of care exists to exercise reasonably the statutory power for the purpose of protecting those whom the Act seeks to protect. Importantly, in this case, the necessary facts were present for the exercise of the power. As conceded by counsel for the appellant, without the statutory power, it would be a more difficult case for the appellant to demonstrate that a duty existed.
[35]Presland (2005) 63 NSWLR 22.

I now turn to the case of Pyrenees Shire Council v Day,[36] which I consider is analogous to the present case. The shire had statutory powers to undertake any works necessary for the prevention of fires. A chimney fire destroyed premises occupied by tenants and damaged the adjoining premises in May 1990. The fire was caused by a latent defect in the chimney. The defect was known to the shire as it had been called to inspect, and did inspect, the premises in August 1988 following a small fire in the chimney. Advice was provided by the shire to the tenants at the time of the inspection that the fireplace should not be used unless it was repaired. A letter was also sent by the shire to the owners at the address of the premises. A factual finding at trial was that the tenant received the letter addressed to the owners but did not inform the owners of its contents or the advice given at the time of the inspection. Furthermore, the tenant did not inform the subsequent tenants, who were in occupation of the premises at the time of the second, wholly destructive fire.
[36]Pyrenees (1998) 192 CLR 330.

A majority of the High Court concluded that the shire owed a duty of care to the owners of the adjoining premises.[37]
[37]Pyrenees (1998) 192 CLR 330 (Toohey, McHugh, Gummow and Kirby JJ). Brennan CJ also so held, but on the ground that the council was under a public duty to exercise its statutory powers.

As expressed by Kirby J:

The statutory power in question is not simply another of the multitude of powers conferred upon local authorities such as the Shire. It is a power addressed to the special risk of fire which, of its nature, can imperil identifiable life and property. Therefore, the nature of the power enlivens particular attention to its exercise and to the proper performance of a decision whether to give effect to it or not.[38]

[38]Pyrenees (1998) 192 CLR 330, [252].

As expressed by McHugh J,[39] the duty arose from: the extensive powers of the council given to it to prevent fires; that the council had ‘entered the field’ by the inspection of the property and the letter sent to the owners of the premises; the council’s knowledge of the danger; and its imputed knowledge that residents generally relied on it to protect them from such dangers. Notably, McHugh J found that a duty was owed only to the owners of the adjoining properties.
[39]Pyrenees (1998) 192 CLR 330, [115].

Pyrenees involved a power to take steps. It is almost on all fours with this case. The police ‘entered the field’ and had actual knowledge of the dangers that Mr Veenstra faced. Arising from s 10 of the Mental Health Act the police had a direct control to convey him to a hospital or call for medical assistance.[40] This is a case that falls within the special category identified in Wyong[41] and Heyman[42] as referred to in Pyrenees.[43] This category involves cases where the emphasis is on the degree of danger; the expertise available to the authority; the opportunities for intermediate self-protection; and the cost and inconvenience involved in the exercise of those powers. As Kirby J said:

the plainest of this class involve the inspection of aircraft by a public authority where a failure to exercise statutory powers could have devastating consequences upon those who depend upon the authority to do so. [44]

[40]Pyrenees (1998) 192 CLR 330, 389.

[41]Wyong Shire Council v Shirt (1980) 146 CLR 40, 47-48.

[42]Heyman (1985) 157 CLR 424, 462-463.

[43]Pyrenees (1998) 192 CLR 330, 424.

[44]Pyrenees (1998) 192 CLR 330, 424 (Kirby J).

At the time of the decision in Pyrenees the approach to the determination of questions of duty was that of ‘reliance’. After Pyrenees, the concept of reliance was replaced by the concept of vulnerability, that is, a duty to protect from a ‘great harm’.[45] And, as already discussed, the multi-factorial approach has been authoritatively adopted by the High Court.
[45]Pyrenees (1998) 192 CLR 330, [168]; see also 408, 421-423; Also Perre v Apand Pty Ltd (1999) 198 CLR 180.

The judgment below

In the present case, the trial judge said that it was ‘impermissible’ to translate a statutory power into a common law duty. His Honour based this conclusion on the following quote from Graham Barclay Oysters[46] as expressed by McHugh J, that:

[T]he common law cannot interfere with the exercise of the discretion and require the authority to enforce the power. To attempt to do so would bring the common law into conflict with the legislative intention that the exercise of the power be discretionary. The common law avoids the conflict by holding that in the circumstances the failure to exercise the power is a breach of a common law duty existing independently of the statute.[47]

[46]Graham Barclay Oysters (2002) 211 CLR 540.

[47]Graham Barclay Oysters (2002) 211 CLR 540, 575.

With respect, McHugh J was not suggesting that there could be no common law duty of care with respect to the exercise of a statutory power. His Honour’s view was to the contrary, that is, there could be ‘a common law duty existing independently of statute.’ While the existence of the statutory power does not, by itself, create the common law duty ‘it may be an important factor in finding that a duty of care was owed’.[48]
[48]Graham Barclay Oysters (2002) 211 CLR 540, [80]

McHugh J goes on to consider some of the situations where the law may or may not impose such a duty.[49] His Honour expressed the view that a public authority is no different from an individual in that the common law does not usually impose a duty to intervene, unless the authority has created or increased the risk. Furthermore:
[49]Graham Barclay Oysters (2002) 211 CLR 540, 575-576.

In most cases, a public authority will not be in breach of a common law duty by failing to exercise a discretionary power that is vested in it for the benefit of the general public.[50]

However, his Honour continues:
The likelihood of the common law imposing an affirmative duty of care whose content may require the exercise of a statutory power increases where the power is invested to protect the community from a particular risk and the authority is aware of a specific risk to a specific individual. If the legislature has invested the power for the purpose of protecting the community, it obviously intends that the power should be exercised in appropriate circumstances.[51]

It is by this reasoning that his Honour explains Pyrenees Shire Council v Day.[52]

[50]Graham Barclay Oysters (2002) 211 CLR 540, [81]; citing Stovin v Wise [1996] AC 923, 957.

[51]Graham Barclay Oysters (2002) 211 CLR 540, [82] (emphasis added).

[52](1998) 192 CLR 330.

Returning to the reasons of the judge below, his Honour also looked to the case of Sullivan v Moody.[53] In that case, the fathers of two children who had been medically examined and wrongfully diagnosed as having been sexually abused sued the medical practitioners and social workers in negligence. The fathers alleged that as a result of the false reports, they had suffered shock, distress, psychiatric injury and loss. Legislation required medical practitioners and social workers (and others) to report suspicions of child abuse. It was held 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.[54]

[53](2001) 207 CLR 562.

[54]Heyman (1985) 157 CLR 424, [62].

The trial judge considered the approach for determining whether a duty of care exists in a novel case, noting the incremental approach by way of analogy and then considering McHugh J’s six questions as set out in Crimmins.[55] His Honour concluded that only question 2 was answered in the positive. That is, that the respondents could have exercised control or had the power to protect Mr Veenstra.
[55]Crimmins (1999) 200 CLR 1.

The trial judge then considered Presland[56] and drew upon Santow JA’s comments, in particular, firstly, that control and vulnerability were not determinative of a duty. On the facts of Presland, the control that could be exercised was limited under the relevant Act and the vulnerability of the patient would not necessarily be obviated by the exercise of the power. Secondly, a legislative statement that an authority ‘may’ exercise a power can in some cases be a ‘must’,[57] as determined in the context of the situation. Thirdly, that if the legislature intended compulsory detention, it would have used words such as ‘require’ the care, treatment and control of the relevant persons, not ‘facilitate’. Lastly, that to impose a duty of care with respect to compulsory detention may introduce a distortive effect on the exercise of the discretion to detain.
[56]Presland (2005) 63 NSWLR 22.
[57]Presland (2005) 63 NSWLR 22, 115.

However, in Presland, Santow JA continued that:

[the] distortive effect, and the bias it imports into what must be an impartial exercise of discretion under the Act may not arise to the same degree, if liability were limited to serious physical injury suffered by third parties at the hands of a psychotic person about whose compulsory detention the hospital was negligent. But it is not necessary to decide that question here…[58]

[58]Presland (2005) 63 NSWLR 22, [369].

This paragraph is a consideration of the question, indicative of whether a duty exists, ‘who is my neighbour?’ It considers that if the facts of Presland involved harm suffered to third parties at the hands of a person who could or should have been detained under a statutory power, then a duty may possibly have arisen. Santow JA considered that an important element of that case was that the alleged duty was of a very wide scope, going beyond self-inflicted or third party injury.

In this way, Presland does not preclude the finding of a duty in this case. In fact, in my view, it is open to it. The scope of the duty here is comparatively narrow. Put at its highest, counsel for the appellant in argument stated that the duty was to exercise reasonable care to protect persons including by the exercise of the statutory power. It was conceded that at its barest the duty was to exercise the statutory power reasonably for the purpose of protecting those whom the Act seeks to protect. I do not consider that it is necessary to go to this highest position, particularly in light of the overarching salient features approach.[59]
[59]See Graham Barclay Oysters (2002) 211 CLR 540, Crimmins (1999) 200 CLR 1

Graham Barclay Oysters[60] similarly considered the breadth of the class of persons to whom the duty was allegedly owed by the statutory authority, and from there the alleged scope of that duty. It was concluded that the powers conferred on the statutory authority ‘were conferred for the benefit of the public generally; not for the protection of a specific class of persons’[61] and Pyrenees is specifically distinguished on this point.[62]
[60]Graham Barclay Oysters (2002) 211 CLR 540.
[61]Graham Barclay Oysters (2002) 211 CLR 540, [39].
[62]Graham Barclay Oysters (2002) 211 CLR 540, [39] (Gleeson CJ), [98] (McHugh J), [151]-[154] (Gummow and Hayne JJ), and [250] (Kirby J).

The respondents owed Mr Veenstra a duty of care

As I have expressed, the approach to determining whether a duty exists in a novel case has been expressed a variety of ways, with the dominant, overarching approach being that of the multi-factorial or ‘salient features’ approach. I consider in adopting that approach, the first and second respondents owed Mr Veenstra a duty of care. It is a common law duty that arises independently of statute.[63] Section 10 of the Mental Health Act has been set out above. The objects of the Act are set out in s 4 and relevantly include:
[63]Graham Barclay Oysters (2002) 211 CLR 540, 575 (McHugh J).

(1) (a) to provide for the care, treatment and protection of mentally ill people who do not or cannot consent to that care, treatment or protection; and
(ab) to facilitate the provision of treatment and care to people with a mental disorder; and
(ac) to protect the rights of people with a mental disorder; …

(2) It is the intention of Parliament that the provisions of this Act are to be interpreted and that every function, power, authority, discretion, jurisdiction and duty conferred or imposed by this Act is to be exercised or performed so that –
…
(b) in providing for the care and treatment of people with a mental disorder and the protection of members of the public any restriction upon the liberty of patients and other people with a mental disorder and any interference with their rights, privacy, dignity and self-respect are kept to the minimum necessary in the circumstances.

Under the objects, therefore, it would be incumbent upon any person exercising a function or power under the Act to balance the objects in sub-s (1) relating to the provision of treatment with the object in sub-s (2) concerning the liberty, rights and dignity of the person with a mental disorder.

Where an Act does not expressly state that a duty is owed by a statutory authority, caution has often been expressed in determining that a duty be imposed on the authority.

As discussed by Gaudron J in Crimmins:

It is not in issue that a statutory body…may come under a common law duty of care both in relation to the exercise and the failure to exercise its powers and functions. Liability will arise in negligence in relation to the failure to exercise a power or function only if there is, in the circumstances, a duty to act. What is in question is not a statutory duty of the kind enforceable by public law remedy. Rather, it is a duty called into existence by the common law by reason that the relationship between the statutory body and some member or members of the public is such a to give rise to a duty to take some positive step or steps to avoid a foreseeable risk of harm to the person or persons concerned. (footnotes omitted).[64]

[64]Crimmins (1999) 200 CLR 1.

It is exceptional in law to make one person responsible for another’s conduct.[65] It also would appear to be exceptional to hold one person, at a given point in time, responsible for the conduct of another person at a later point in time. However, the facts of this case are exceptional and in light of the authorities, and the legislative intent of the Mental Health Act, a duty of care arose here. This conclusion is informed by the expression of McHugh J in Crimmins of the six relevant questions to consider.

1. Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests? If no, then there is no duty.

[65]Smith v Leurs (1945) 70 CLR 25.

In this situation it was reasonably foreseeable that not exercising the power to apprehend Mr Veenstra and either take him to the hospital or wait for medical attention may result in Mr Veenstra committing suicide. I note the use of ‘would result’ and suggest that this be considered in light of the requirement at this stage only to determine whether a duty exists. It is not a question of causation. Concluding that the outcome was reasonably foreseeable is not determinative of whether a duty exists, and rightly so. Here, the two police officers noted Mr Veenstra to be depressed and recorded the circumstances of suicide in their patrol log. They observed all the facets of suicide (the hose, its connection to the exhaust and the making of a note by Mr Veenstra). It was reasonably foreseeable on the evidence that their failure to act would result in injury to him. The question therefore should be answered in the affirmative, not the negative and hence the trial judge was in error.

2. By reason of the defendant’s statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no, then there is no duty.

Counsel for the respondents submitted that, whilst the respondents had control over the situation in light of the powers conferred by the Mental Health Act, the nature and degree of the control was limited. It depended upon the officers’ assessment of the particular situation and was constrained by the objects of the conferring Act. The officers had options of apprehending Mr Veenstra and taking him to a hospital or calling a medical practitioner to attend the scene. It was submitted that the fact that they had this power does not necessarily mean that they had control over the situation in the sense implied by the authorities.[66] Furthermore, exercising the power to implement one of these options would have been contrary to the express wishes of Mr Veenstra. In this regard, it was submitted that any control exercisable by the officers was fractured.
[66]Agar v Hyde (2000) 201 CLR 552; Pyrenees (1998) 192 CLR 330

However, as concluded by the trial judge, the first and second respondents had the power to protect a specific class, that is, those persons who a member of the police force believes, on reasonable grounds, has recently attempted or is likely to attempt suicide, which included Mr Veenstra, from a risk of self-harm. That power was provided to them in the Mental Health Act.

3. Was the plaintiff or were the plaintiff’s interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If no, then there is no duty.

It may be inferred from s 10 of the Mental Health Act that Parliament’s view was that to attempt suicide is to be mentally ill. There is little other way to interpret its phrasing. The appropriateness or otherwise of this construction was not addressed on appeal, nor does it appear to have been raised at trial. Furthermore, there was no dispute between the parties that, when the respondents came upon Mr Veenstra in his car, he had been or was contemplating suicide. Their evidence of events in the car park and the matters recorded in the police officers’ log established as much. Whilst the first and second respondents differed slightly in their interpretation of the situation, it was not to an extent that would deny that Mr Veenstra was in the midst of suicidal thoughts. The point at which the respondents realised that that was the situation was the same point that they must have realised that he was vulnerable. On this element, counsel for the appellant distinguished Graham Barclay Oysters on the ground that, in that case, it was held that the class of persons was too wide and the relationship too disparate. Here, the legislation had a specific class of especially vulnerable persons in contemplation and such a person was within the presence and awareness of the respondents.

Hence, in the context of the legislation and the facts, the plaintiff was vulnerable in the sense that he could not reasonably be expected to adequately safeguard himself from harm.

I pause here to emphasise that, notwithstanding this conclusion, there is still an important question to be determined by the tribunal of fact as to whether the duty was breached. The difficulty in separating the two questions recurs at each step of the analysis. It may be that the respondents acted in such a way as to discharge their duty, but that is not the issue to be determined here.

4. Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, then there is no duty.

The first and second respondents gave evidence that they were alive to the situation and Mr Veenstra’s state of mind. They were also aware of their powers under the Mental Health Act. The respondents must have known, and if not ought to have known, of the risk of harm to Mr Veenstra. It was a question of fact for the jury as to whether Mr Veenstra was mentally ill. There was evidence by the two police officers of their training and exposure to suicide situations[67]. Again, the question should be answered in the affirmative.

5. Would such a duty impose liability with respect to the defendant’s exercise of ‘core policy-making’ or ‘quasi-legislative’ functions? If yes, then there is no duty.

[67]AB 238, 242, 247, 255, 295 – 296 and 312.

The respondents’ power under the Mental Health Act cannot be construed as ‘core policy-making’ or ‘quasi-legislative’ functions. [68] It is clearly an operational power. The existence of the discretion does not work against the duty. Rather, it is the character of the power that is relevant. However, in argument, counsel for the appellant did not join issue with the answer of the trial judge and the matter need not be considered further.

6. Are there any other supervening reasons in policy to deny the existence of a duty of care (eg, the imposition of a duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? If yes, then there is no duty.

[68]See eg v Dorset Yacht [1970] AC 1004; Anns v Merton LBS [1978] AC 728; Heyman (1985) 157 CLR 424.

There are no supervening reasons in policy to deny the existence of a duty of care on these particular facts. The imposition of a duty here is not inconsistent with the statutory scheme. In fact, it is consistent with the objects of the Act and the powers it provides.

The appellant’s case as to duty, in order to fall within Pyrenees and Crimmins, was argued on four bases. First, that there is a relevant power under the Mental Health Act that points to the existence of a duty of care. Secondly, there was control capable of being exercised by the relevant power under the Act over the risk of which the police officers were aware. Thirdly, there was foreseeability of a risk of harm if no action was taken. Fourthly, there was no issue of public policy that cut across the police officers’ decision.[69]
[69]Save that articulated in Pyrenees (1998) 192 CLR 330, 424 (Kirby J) and Crimmins (1999) 200 CLR 1, 38 (McHugh J).

In Presland, the first of the four factors that Spigelman CJ articulated was the purpose to be served by the exercise of the power. This is particularly relevant in this situation. The purpose here was the protection of a specific class of persons. That is, persons contemplating self-harm or harm to others as a result of mental illness. The objects of the Act identify the need to balance the provision of care, treatment and protection with the personal liberty of the individual.

An important consideration in this case is - at what point was the duty enlivened? Not before the respondents saw the vehicle. Not before the respondents were aware of the situation. It was at the point of realisation that Mr Veenstra had been contemplating or was contemplating suicide. Section 10 of the Mental Health Act requires that the member have knowledge, actual knowledge, of the person’s attempt, or likely attempt, to commit suicide. With the realisation of the nature of the situation, coupled with the awareness of their powers under the Mental Health Act, the respondents were in that moment subject to a duty. It was at that point that Mr Veenstra became the respondents’ ‘neighbour’. It was at that point that the police were to consider their powers and exercise their discretion as to their use.

It is to be emphasised that, that is not to say that the respondents should have apprehended Mr Veenstra. The question here is only whether a duty of care was owed and I separate this question, as clearly as the law requires and permits, from the question of whether the respondents breached their duty. Breach is a question of fact determined by what was subjectively known and what was reasonable in the circumstances.[70]
[70]For discussion see Trindade, Cane and Lunney, The Law of Torts in Australia (7^th ed, 2007).

The trial judge expressed the view that the respondents could not be expected to be on ‘suicide watch’ for any period after they left Mr Veenstra. This is true, but again I consider that this is a question of whether the respondents’ acts or omissions in the circumstances were reasonable, that is, what is to be expected of a police officer in all the circumstances? This is to be assessed on the facts in answering whether the duty was breached.

If the facts are altered slightly to a hypothetical situation where Mr Veenstra was in the midst of committing suicide, the hose was connected to the exhaust pipe and fed into the car and the engine was running, I do not consider that a member of the police force could easily argue that it was reasonable not to intervene. If the member walked away without intervening, in the absence of further facts it seems unlikely that they would be unaccountable to the situation. I consider that this altered scenario does not change the point at which the duty is enlivened. It is at the point at which the member realises the nature of the situation. The reasonableness of what the member does upon that realisation will be determined on the question of breach.

In my view, a duty of care arose in this situation. Upon approaching Mr Veenstra’s car, the police officers became aware of the nature of the situation by observing the tube from the exhaust to the window. They ascertained he had written a note and they observed him to be depressed. They later in their notes referred to ‘suicide’. They realised that Mr Veenstra had either aborted an attempt, or was about to attempt, to suicide. By the conferral of powers by the Mental Health Act, the purpose of which was to protect the mentally ill from situations such as this, they had control over the situation. Mr Veenstra was vulnerable in the sense that he had limited capability (if any at all) to protect himself from the risk of self harm resulting from his depression. In fact, I would consider that there are few situations of greater vulnerability. The duty arose upon the realisation that he was contemplating suicide and was at risk of ‘grave harm’, as discussed in Pyrenees.[71] The class of persons to whom the duty was owed was those in clear and obvious contemplation of suicide, and the scope of the duty extended to the assessment of the situation and possibly the provision of assistance as provided for in the Act. The course of action that the officers should have taken following this realisation is not a matter for this court. Whether the officers exercised their discretion and powers appropriately is a question to be determined in relation to the alleged breach of the duty of care.
[71]Pyrenees (1998) 192 CLR 330, [168].

Whether duty of care owed to appellant

The question whether a duty of care was owed to the appellant raises some of the same issues as well as some distinctly different issues.

As the submission for the appellant pointed out, it has been established in Australia since the decision of the High Court in Jaensch v Coffey[72] that a close relative of a person who is injured or dies through the fault of another can recover damages for pure psychiatric injury, even though the relative –

(a) was not present when the injury was sustained or the death occurred; and
(b) had no pre-existing relationship with the wrongdoer.

[72](1984) 155 CLR 549 (‘Jaensch’).

In Jaensch, a motorcyclist suffered serious injury in a collision with a vehicle which was being driven negligently by the defendant. The motorcyclist’s wife, who was not at the scene of the accident, saw him in hospital where the staff told her that he was ‘pretty bad’. The next morning she was told that he was in intensive care, and shortly thereafter that he had ‘had a change for the worse’ and she was asked to come to the hospital as quickly as possible. She developed a psychiatric illness, characterised by anxiety and depression, because of what she saw and heard at the hospital. The driver was held liable in negligence for that injury.

It was said in Jaensch that whether in a particular case the defendant would be held to have owed the plaintiff-relative a duty of care would depend upon –

(a)whether the risk of psychiatric injury was reasonably foreseeable (and to that question the nature of the relationship between plaintiff and defendant might be of ‘critical importance’);[73] and
(b)whether the requirement of ‘proximity of relationship’ was satisfied, that is, whether the relationship between defendant and plaintiff was ‘adjudged as being so close as to give rise to a duty of care’.[74]

[73]Jaensch (1984) 155 CLR 549, 591, 604, 605 (Deane J).

[74]Jaensch (1984) 155 CLR 549, 605 (Deane J).

In Tame and Annetts,[75] the High Court again considered the criteria for determining whether a duty of care exists to avoid psychiatric injury. Essentially the same approach was adopted. Thus it was said that whether a duty of care exists depends on –

(a) the reasonable foreseeability of the kind of injury suffered, to which the relationship between the parties and the question of ‘normal fortitude’ will be relevant, though not determinative;[76] and
(b) whether it is reasonable to expect the defendant to have had the plaintiff in contemplation as a person ‘closely and directly affected’ by his/her acts or omissions (to which the plaintiff’s relationship with the injured person will also be relevant).[77]

In considering whether the imposition of a duty is reasonable, it will be relevant to consider the extent of the defendant’s control over the risk to which the plaintiff was exposed,[78] and whether the putative duty of care is inconsistent with any other duty to which the defendant is subject.[79]

[75](2002) 211 CLR 317.

[76]Tame and Annetts (2002) 211 CLR 317, [12-3], [37] (Gleeson CJ); [62] (Gaudron J); [200-1] (Gummow and Kirby JJ).

[77]Tame and Annetts (2002) 211 CLR 317, [9] (Gleeson CJ); [46-7], [50-2] (Gaudron J).

[78]Tame and Annetts (2002) 211 CLR 317, [185], [240] (Gummow and Kirby JJ).

[79]Tame and Annetts (2002) 211 CLR 317, [26] (Gleeson CJ); [57] (Gaudron J); [241] (Gummow and Kirby JJ); [298] (Hayne J).

The High Court ruled that it was not a pre-condition to the imposition of a duty of care in such a case that –

·the foreseeability of the risk of harm be established by reference to a hypothetical person of ‘normal fortitude’;
·the psychiatric injury be shown to have been caused by a ‘sudden shock’;[80] or
·the plaintiff have ‘directly perceived’ the death or injury, or its ‘immediate aftermath’.[81]

As Gleeson CJ pointed out, however, it may still be relevant to consider whether the injury was caused by a sudden shock or whether the plaintiff directly perceived the distressing event or its immediate aftermath. Such factual considerations may be relevant, his Honour said:
to the nature of the relationship between plaintiff and defendant, and to the making of a judgment as to whether the relationship is such as to import such a requirement [to have in contemplation injury of the kind that has been suffered by the plaintiff and to take reasonable care to guard against such injury.][82]

[80]Tame and Annetts (2002) 211 CLR 317, [17] (Gleeson CJ); [66] (Gaudron J); 380 (Gummow and Kirby JJ).

[81]Tame and Annetts (2002) 211 CLR 317, [17] (Gleeson CJ); [51] (Gaudron J); 380 (Gummow and Kirby JJ).

[82]Tame and Annetts (2002) 211 CLR 317, [18].

In the Annetts case, the parents of the deceased boy had not witnessed their son’s death or its immediate aftermath, and had suffered no ‘sudden shock’. Nevertheless, the court said, a duty of care existed. According to Gleeson CJ:

Here there was a relationship between the [parents] and the [boy’s employer] sufficient, in combination with reasonable foreseeability of harm, to give rise to a duty of care, though the [parents] did not directly witness their son’s death, and suffer a sudden shock in consequence. The [parents], on the assumed facts, who themselves had responsibilities for the care of their son, only agreed to permit him to go to work for the [employer] after having made inquiries of the [employer] as to the arrangements that would be made for his safety and, in particular, after being assured that he would be under constant supervision. Contrary to those assurances, he was sent to work, alone, in a remote location. In those circumstances there was a relationship between the [parents] and the [employer] of such a nature that it was reasonable to require the [employer] to have in contemplation the kind of injury to the [parents] that they suffered.[83]

[83]Tame and Annetts (2002) 211 CLR 317, [37].

Gummow and Kirby JJ came to a similar conclusion:

In particular, neither the lack of the [parents’] direct perception of their son’s death or its immediate aftermath, nor the circumstance that the [parents] may not have sustained a “sudden shock”, is fatal to the [parents’] claims. In accordance with the ordinary principles of negligence applied to the assumed facts, the [employer] owed the [parents] a duty of care …
The connections between the parties indicate the existence of a duty of care. An antecedent relationship between the plaintiff and the defendant, especially where the latter has assumed some responsibility to the former to avoid exposing him or her to a risk of psychiatric harm, may supply the basis for importing a duty of care.[84]

Their Honours went on to note that:
·the parents had had no way of protecting themselves against the risk of psychiatric harm that eventuated;
·the control over the risk of harm to the son, and the risk of consequent psychiatric harm to the parents, was held ‘to a significant, perhaps exclusive, degree’ by the son’s employer; and
·it was likely that the employer’s duty of care to the parents to exercise reasonable care to avoid causing them psychiatric injury with respect to their son’s death in the course of his employment was, at most, co-extensive with the duties that the employer had owed the son directly as his employer.[85]

[84]Tame and Annetts (2002) 211 CLR 317, [236-7].

[85]Tame and Annetts (2002) 211 CLR 317, [240-1].

Gaudron J considered that the ‘direct perception’ rule was explicable

on the basis that it serves to identify persons who, because of their closeness in time and space, should be in the contemplation of the person whose acts or omissions are called into question as persons closely and directly affected and, thus, persons to whom a duty of care is owed.[86]

Because of the ‘anomalous and illogical consequences’ which the rule could produce, it could not be determinative of the class of eligible plaintiffs who could claim in negligence for pure psychiatric injury. Her Honour continued:
To identify those who may claim for pure psychiatric injury as those who should be in the contemplation of the person whose acts or omissions are in question as persons closely and directly affected is not to say that the categories of persons who may recover damages for pure psychiatric injury are open-ended. Save for those who fall within the ‘direct perception rule’, as extended by Jaensch v Coffey, a person will be able to recover for psychiatric injury if there is some special feature of the relationship between that person and the person whose acts or omissions are in question such that it can be said that the latter should have the former in contemplation as a person closely and directly affected by his or her acts.[87]

[86]Tame and Annetts (2002) 211 CLR 317, [47].

[87]Tame and Annetts (2002) 211 CLR 317, [52] (emphasis added).

It follows, in my view, that the decision in Annetts is to be regarded as having extended, rather than confined, the range of circumstances in which there may be found to exist a duty of care to avoid foreseeable psychiatric injury. Contrary to the submissions advanced on behalf of the respondents, the High Court did not decide that an antecedent relationship between the plaintiff and defendant was a necessary condition of the existence of a duty of care. On the contrary, as the judgments make clear, the existence (or otherwise) of an antecedent relationship may give rise to a duty of care to a person who did not directly perceive the relevant incident or its aftermath, and suffered no ‘sudden shock’.

Nothing said in Annetts purported to limit what was said in Jaensch. The present case is, in its material aspects, on all fours with Jaensch. The appellant came upon her deceased husband just after he had committed suicide. She directly perceived the aftermath, and suffered a sudden shock. The absence of a pre-existing relationship with the respondent is therefore immaterial.

As to other considerations, it is clear that the respondents had – in the particular context – almost complete control over the circumstances giving rise to the risk of psychiatric injury to the appellant. Conversely, she had no way of protecting herself against that risk. She was as vulnerable as the parents in Annetts.

Nor, in my view, would the imposition of a duty of care be in any way inconsistent with the nature of the activity in which the respondents were engaged or with the duty which the statute imposed on them. On the contrary, the two are closely related and complementary. The profoundly damaging effect of suicide on a spouse is notorious, and it can safely be assumed that one of the purposes behind the conferral of this power was to prevent the particular anguish of bereavement by suicide. Counsel for the respondent submitted that there is a theme running through the authorities as to whether it is reasonable for a tortfeasor to have in mind a relative of the individual under scrutiny. It was argued that the duty of an employer is different and to take that approach here would led to police officers needing to have in mind the ‘loved ones’ of the person at risk. However, it was conceded by counsel for the respondents that upon the police arriving at the car park, on the

basis of Annetts,[88] it was appropriate for them to have thought about contacting the family of Mr Veenstra

[88](2002) 211 CLR 317.

It follows, in my view, that the kind of injury suffered by the appellant was reasonably foreseeable if the respondents failed to exercise reasonable care in their dealings with her husband. I am also satisfied that it is reasonable to expect the respondents to have had the appellant in contemplation as a person ‘closely and directly affected’ by their acts or omissions in relation to her husband.

Accordingly, I would also uphold this ground of appeal. In the circumstances, the respondents owed a common law duty of care to the appellant.

Conclusion

For the foregoing reasons, I consider grounds 1 and 2 of the amended notice of appeal are made out. Notwithstanding grounds 3 and 4, the whole focus of argument was on grounds 1 and 2 and, although I have decided the common law duty arises in part because the first and second respondents ‘entered the field’ by virtue of provisions of the Mental Health Act, it is not necessary, as the appeal was presented or for that matter as the trial was run below, to determine grounds 3 and 4.

Ground 5, concerned with the erroneous discharge of the jury, is necessarily made out. As for ground 6, the error in the reasons did not lie with any

insufficiency. Rather, in my view, there was a misapplication of legal principle for the reasons stated.

Grounds 7 and 8 alleged that the trial judge made erroneous findings about various factual matters or findings that were against the weight of the evidence or not open. Mostly, the matters were properly matters to be determined by the jury in

any event, as was acknowledged by counsel for the first and second respondents. Doubtless his Honour proceeded to determine these matters as part of his decision on the duty point. In my view, the appellant succeeds on grounds 1, 2 and 5. Accordingly, I would allow the appeal and remit the proceeding for retrial.

MAXWELL P:

I have had the advantage of reading in draft the reasons for judgment of the Chief Justice. Like her Honour, I would allow the appeal. Subject to what follows, which concerns only matters of emphasis, I would do so for the reasons which her Honour gives.

This is not a case about breach of statutory duty. (A claim alleging that separate tort was pleaded in the alternative but later abandoned.) Nor is it about a public law duty to exercise a statutory power. As Gummow J said in Pyrenees Shire Council v Day, the question in a case like this is whether a common law duty of care arises in circumstances which include the existence of the statutory power. Whether particular circumstances give rise to a duty to exercise a power, such that a claim for the public law remedy of mandamus would succeed, is a different question.[89]
[89](1998) 192 CLR 330, 390-1 [172] (‘Pyrenees’); cf Commissioner of State Revenue (Vic) v Royal Insurance Ltd (1994) 182 CLR 51, 88 (Brennan J, with whom Toohey and McHugh JJ agreed); see also Leach v The Queen (2007) 81 ALJR 598, [38] (Gummow, Hayne, Heydon and Crennan JJ).

In a case such as the present, as McHugh J pointed out in Graham Barclay Oysters, the statutory power is not the source of the duty of care but ‘may be an important factor in finding that a duty of care was owed’.[90] How important a factor it is will, of course, depend upon the nature of the power in question; the purpose for which the power is conferred; the nexus between the power and the harm suffered; and the context and policy of the legislation as a whole.[91] In this sense, the existence of the statutory power is ‘relied on to support the existence of a common law duty of care.’[92] Or, as Gummow J said in Pyrenees, the existence of relevant statutory powers can ‘facilitate the existence of a common law duty of care’.[93]
[90](2002) 211 CLR 540, 575 [80].
[91]Ibid 574-575 [78]-[79] (McHugh J).
[92]Stovin v Wise [1996] AC 923, 952F (Lord Hoffman).
[93](1998) 192 CLR 330, 389 [168].

The submission for the appellant was put on precisely that basis. The existence of the statutory power in s 10 of the Mental Health Act 1986 (‘the Act’) was relied on to support the existence of common law duties of care, independent of the statute, owed separately to Mr Veenstra and to the appellant. The alternative proposition articulated in the grounds of appeal – that the respondents owed duties of care ‘arising out of their failure to exercise their statutory powers pursuant to s 10’ – was not pursued.

Nor are the duties of care which existed in the circumstances of this case defined in terms of, or limited by reference to, the statutory power of apprehension conferred on the respondents by s 10. The duty which the respondents owed Mr Veenstra, and the duty which they owed the appellant, were duties to take reasonable care to protect them against reasonably foreseeable risks of harm – in the case of Mr Veenstra, the risk of his suicide; in the case of the appellant, the risk of psychiatric injury. Whether in the circumstances the discharge of the duty required the exercise of the statutory power or some other appropriate course of action is a question for the jury.

Like the Chief Justice, I consider that both the analytical framework adopted in Pyrenees and the High Court’s analysis in that case illuminate the issues which fall for decision in this appeal. Thus, there are features of the present situation which parallel those which Kirby J in Pyrenees considered favoured the imposition of a duty of care on the shire council. Specifically –

1.The power here conferred was specifically addressed to the ‘special risk’ of suicide, the gravity of which is self-evident. As Kirby J said:
[T]he nature of the power enlivens particular attention to its exercise and to the proper performance of a decision whether to give effect to it or not.[94]
2.The present is not a case of pure omission. It involved action on the part of the respondent officers who, quite properly, investigated the situation they had come upon, conscious of their power under s 10 to apprehend in circumstances of that kind.
3.Emphasis should be placed on:
·the degree of danger to which Mr Veenstra was exposed if the officers failed to exercise reasonable care in dealing with his situation;
·the very limited opportunity (if any) for Mr Veenstra to protect himself, given his depressed mental state and suicidal thinking; and
·there being no apparent cost or inconvenience to the respondents in the exercise of the power.

[94](1998) 192 CLR 330, 423 [252].

Following the analysis of Gummow J in Pyrenees, the touchstone of the respondents’ duty in the present case was their ‘measure of control of the situation including [their] knowledge’[95] of the risk to Mr Veenstra. The respondents knew that he had very recently been contemplating suicide and had prepared his car accordingly. They knew that if the suicidal thinking were to recur after they had left the scene, the very risk which the statute sought to guard against might eventuate.
[95]Ibid 389 [168].

These issues of control and knowledge are particularly significant in this case. As Gummow and Hayne JJ said in Graham Barclay Oysters, the factor of control ‘is of fundamental importance in discerning a common law duty of care on the part of a public authority’.[96] The nature and extent of the control can vary widely, as their Honours illustrated by reference to the decided cases. Of the situation in Pyrenees, their Honours said that

the Shire held a significant and special measure of control over the safety from fire of persons and property at the relevant premises. That degree of control was the touchstone of the Shire’s duty to safeguard others from the risk of fire in circumstances where the Shire had entered upon the exercise of its statutory powers of fire prevention and it alone among the relevant parties knew of, and was responsible for, the continued existence of the risk of fire.[97]

[96](2002) 211 CLR 540, 598 [150]; see also Hunter Area Health Service v Presland (2005) NSWLR 22, 28 [14]-[16] (Spigelman CJ).

[97]Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, [151].

In the present case, the respondents had the legal authority to exercise direct, immediate and complete control over the risk that Mr Veenstra might, in his current frame of mind, commit suicide.[98] Clothed with the authority of s 10, they were in a position to do what no other person could do without risking civil liability for assault or false imprisonment, namely, to apprehend Mr Veenstra and, for that purpose, to ‘use such force as may be reasonably necessary’.[99]
[98]Ibid 630-1 [249] (Kirby J).
[99]Section 10(2)(b).

The respondents’ knowledge of the risk was also of a special character. In the moment, that knowledge was of course unique to them, as no-one else apart from Mr Veenstra was present. But, as senior counsel for the appellant pointed out in argument, it was also knowledge which might not be available to any person subsequently, should Mr Veenstra be allowed to leave the scene. Unless and until something is said or some overt step is taken, suicidal thinking is invisible to the onlooker. But for the hose attached to the exhaust pipe, Mr Veenstra’s suicidal thinking would almost certainly have been invisible to the respondents as well. The argument for the existence of a duty of care in these circumstances is, in my view, strengthened by the fact that, if police officers with special knowledge of the risk did not intervene, there was every likelihood that no-one else would perceive the risk before it materialised.[100]
[100]The first respondent conceded under cross-examination that, from his previous experience with suicidal people, someone intent on suicide would not want anyone else to know: T 255.

At the same time, the function committed to a police officer under s 10 is quite limited in scope. The power under s 10 to apprehend a person who appears to be mentally ill is not an end in itself but operates as a potential point of entry into those provisions of the Act allowing for the involuntary treatment of a mentally ill person. Section 10(1A) specifically provides that a police officer is not required to exercise any clinical judgment as to whether the person in question is mentally ill, but is empowered to act on the basis of ‘the behaviour and the appearance of the person’. If the power of apprehension under s 10(1) was exercised, s 10(4) (as in force at the time) obliged the officer to arrange for the person apprehended to be examined by a registered medical practitioner ‘as soon as practicable’.

The respondents submitted that the alleged duty of care would be inconsistent with other police duties and responsibilities and should therefore, on the authority of Sullivan v Moody,[101] be rejected. According to the submission, those duties and responsibilities were:

(a)first, to investigate and assess whether Mr Veenstra was involved in a contravention of the law;
(b)thereafter, to record relevant information and make an informed assessment (without exercising any clinical judgment) of whether they could, and should, exercise their power of apprehension under s 10;
(c)in so doing, to act in a manner consistent with the objects of the Act, in particular the object expressed in s 4(2)(b), requiring restrictions on the liberty of people with a mental disorder to be kept to the minimum necessary in the circumstances; and

(d)at all times to avoid assaulting or falsely imprisoning Mr Veenstra.

[101](2001) 207 CLR 562, 582 [60] (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ).

On analysis, this is not a list of ‘other duties’, except for the first item. This case is not concerned with the respondents’ duties of criminal investigation, which are quite separate from their specific function under s 10 of the Act. I accept, of course, that in coming upon a car in a deserted car park in the early hours of the morning, the officers were duty bound to consider whether any unlawful behaviour might be taking place. Nothing being decided in this case bears upon the discharge of that public duty. Once, however, the signs of suicidal intent were observed, the distinct issue of suicide prevention arose.

The other ‘duties’ referred to are merely restatements, or corollaries, of the power conferred by s 10. There is no separate ‘duty’ to avoid assault and false imprisonment. The very purpose of the conferral of power by s 10 of the Act is to authorise the taking of action which might otherwise constitute assault and/or false imprisonment. Likewise, there is no separate ‘duty’ to minimise restrictions on liberty and interference with individual rights. When s 4(2) is read with s 10(1), as it should be, its effect is that the power to apprehend an apparently mentally ill person at risk of suicide or other self-harm is to be exercised so that:

(b)in providing for the care and treatment of [that person] … any restriction upon the liberty of [that person] and any interference with [that person’s] rights, privacy, dignity and self-respect are kept to the minimum necessary in the circumstances.

There is no conflict of duties here. On the contrary, the prescription in s 4(2)(b) will inform the approach which the officer will adopt. There are various options open to the officer, short of apprehension, for dealing with the suicide risk as it presents itself. What the exercise of reasonable care requires in a particular case will depend on the circumstances. But Parliament has made it unambiguously clear in s 10 that, where the conditions for the exercise of the power exist, the power may properly be exercised notwithstanding that the exercise involves a direct and immediate interference with the liberty and privacy of the person in question. That interference is of the very nature of the power. The circumstances which enliven the power make the interference necessary.

Like the Chief Justice, I am altogether unpersuaded that the imposition of a duty of care to Mr Veenstra in the circumstances would ‘significantly and impermissibly’ constrain the discharge by police officers of their duty to consider whether or not the power under s 10 is exercisable and should be exercised. On the contrary, to impose a duty of care in these circumstances is entirely consistent with what Gummow J described as ‘the general rule’, as follows:

When statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered.[102]

His Honour went on:
A public authority which enters upon the exercise of statutory powers with respect to a particular subject matter may place itself in a relationship to others which imports a common law duty to take care which is to be discharged by the continuation or additional exercise of those powers.[103]

[102]Pyrenees Shire Council v Day (1998) 192 CLR 330, 391 [177] citing Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202, 220 (Dixon CJ, McTiernan, Webb, Kitto and Taylor JJ).

[103]Ibid 391-2 [177].

In the present case, the respondents had ‘entered upon the exercise of statutory powers’ in the sense that they were – quite properly – considering whether or not to exercise the power which they knew they had. To impose a duty to exercise reasonable care in that setting is in no way to ‘constrain’ the proper performance of their functions under the Act.

The special nature of the function conferred on the respondents cannot be emphasised too strongly. Much reliance was placed by the respondents on the line of authority beginning with Hill v Chief Constable of West Yorkshire.[104] But, as the Chief Justice has emphasised, this is not a policing case. This is a case where police officers are the repositories of a statutory power directed not at the investigation and prevention of crime or the maintenance of public order, but at the prevention of suicide or, more accurately, at preventing a mentally ill person from committing suicide. The particular power is conferred by an Act the first object of which is ‘to provide for the care, treatment and protection of mentally ill people …’[105] No occasion arises, therefore, to enter into the debate about whether and to what extent under Australian law police are subject to a common law duty in connection with the apprehension of criminal suspects.[106]
[104][1989] 1 AC 53.
[105]Section 4(1)(a) (emphasis added).
[106]See, for example, Zalewski& Anor v Turcarolo [1995] 2 VR 562, cf State of New South Wales v Klein [2006] NSWCA 295, [25] (Young CJ in Eq).

The Hill line of authority is grounded in concerns that the imposition of civil liability will have a ‘chilling effect’ on the exercise of statutory powers or will result in the adoption of a ‘detrimentally defensive frame of mind’ in connection with their exercise. Considerations of that kind were relied on to support the respondents’ submission in the present case that ‘the imposition of the duty of care alleged … would have profound policy implications for police officers and police forces.’

I disagree. The nature of the power is, once again, critically important. It is, with respect, perfectly understandable that the courts have expressed concern about the potentially ‘chilling effect’ of exposure to liability in tort on powers such as that of a Parole Board to release a prisoner on parole. In X v South Australia(No 3),[107] a case relied on by the respondents, Debelle J expressed the view that, if the Parole Board were subject to a duty of care, there would be ‘a real likelihood it will act defensively … [and] be prone to excessively cautious decision-making’. In other words, the imposition of a duty of care ‘would discourage the proper performance by the Board of the statutory functions committed to it’.[108]
[107](2007) 97 SASR 180.
[108]Ibid 228 [180] (Debelle J); see also 187-8 [18]-[23] (Duggan J).

The power conferred by s 10 is a power of a different kind. It is directed at safeguarding mentally ill people against the gravest of risks. It is a health and safety power, not a policing power. If the imposition of a duty of care had the effect of making police officers more likely to intervene in circumstances such as the present – whether or not the intervention involved the exercise of the s 10 power – this could hardly be said to be contrary to the public interest.

The policy of the Act is that there should be intervention in order to prevent suicide, when there is an identified risk that it may occur. As with protective powers conferred to advance occupational health and safety[109] or fire safety[110] or child safety,[111] the notion of a ‘chilling effect’ has no meaningful application in the present context. On the contrary, as in those cognate fields, a precautionary approach, responsive to rather than dismissive of indicia of risk, must be seen as conducive to the achievement of the statutory purpose and the promotion of the public interest in the saving of lives and the prevention of injury.[112]
[109]Crimminsv Stevedoring Industry Finance Committee (1999) 200 CLR 1.
[110]Pyrenees Shire Council v Day (1998) 192 CLR 330.
[111]SB v State of New South Wales (2004) 13 VR 527.
[112]Cf Crimminsv Stevedoring Industry Finance Committee (1999) 200 CLR 1, 49 [127], 50 [130] (McHugh J); Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, 576 [82] (McHugh J).

The respondents relied on the decision of the House of Lords in Reeves v Commissioner of Police of the Metropolis.[113] In that case, police officers were sued in negligence following the suicide of a person whom they had brought into custody and who, they had been told, was a risk of suicide. The Commissioner of Police conceded the existence of a duty of care to take reasonable steps to prevent that person’s suicide while he was in police custody. The respondents in the present case rely, however, on statements by members of the House of Lords which, they contend, emphasise

the unusualness of a situation where one person was under a duty to take reasonable care to prevent another person doing something to his own [detriment] deliberately.

[113][2000] 1 AC 360.

Particular reliance was placed on this statement by Lord Hope:

It is unusual for a person to be under a duty to take reasonable care to prevent another person doing something to his loss, injury or damage deliberately. On the whole people are entitled to act as they please, even if this will inevitably lead to their own death or injury. As a general rule the common law duty of care is directed towards the prevention of accidents or of injury caused by negligence. The person to whom the duty is owed is, of course, under a corresponding duty to take reasonable for his own safety. If he is in breach of that duty, his damages may be reduced on the ground of his contributory negligence. But if he injures himself by intentionally doing deliberately the very thing which the defendant is under a duty to prevent him doing negligently, he may find that he is unable to recover any damages.[114]

Reliance was also placed on the following statement by Lord Hoffman:
… the sound intuition that there is a difference between protecting people against harm caused to them by third parties and protecting them against harm which they inflict upon themselves. It reflects the individualist philosophy of the common law. People of full age and sound understanding must look after themselves and take responsibility for their actions.[115]

[114]Ibid 379-380.

[115]Ibid 368 (emphasis added).

The last sentence demonstrates very clearly why nothing said in Reeve has any bearing on the present case. Their Lordships were there considering the position of a person of sound mind and were expressing the traditional view of the common law that such a person is autonomous and must take responsibility for his/her actions. Self-evidently, s 10 is concerned with altogether different circumstances, involving a person of unsound mind who ex hypothesi is unable to make rational judgments in his/her own interests and who therefore needs protection against the risk that he/she will take deliberate self-destructive action.

CHERNOV JA:

I have had the advantage of reading the draft reasons for judgment of the Chief Justice and the President. I have, however, come to a different conclusion from that reached by their Honours on the central question in this appeal, namely, whether the police officers in question owed the deceased and the appellant, respectively, a common law duty of care to take reasonable steps to protect the deceased from committing suicide and the appellant from consequential psychiatric injury. Although the matter is not free from doubt, I consider that the better view is that no such duty was owed to the deceased or to the appellant and, in the circumstances, the appeal should be dismissed. As I explain below, the essential reason for my conclusion is that the imposition of the claimed duty of care would be incompatible with the framework of the Mental Health Act 1986 (‘the Act’).

Recently, cases such as Graham Barclay Oysters Pty Ltd v Ryan[116] have emphasised that the relevant legislative scheme is a ‘focus of analysis’ in determining whether a person or body with a statutory power is subject to a common law duty to exercise the power with reasonable care. In that case Gummow and Hayne JJ said:

An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial. It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. … The factor of control is of fundamental importance in discerning a common law duty of care on the part of a public authority.[117]

It is appropriate, therefore, to deal first with the legislative framework.

[116](2002) 211 CLR 540.

[117]Ibid 597 (citations omitted). See also Gleeson CJ at 563.

In general terms, the policy of the Act is to provide for the care and treatment of mentally ill people, but in such a way that any interference with their rights, dignity and self respect is kept to the minimum necessary. Thus, s 4 of the Act stipulates:

(1) The objects of this Act are –
(a)to provide for the care, treatment and protection of mentally ill people who do not or cannot consent to that care, treatment or protection;
…

(2)It is the intention of Parliament that the provisions of this Act are to be interpreted and that every function, power, authority, discretion, jurisdiction and duty conferred or imposed by this Act is to be exercised or performed so that –
(a)people with a mental disorder[118] are given the best possible care and treatment appropriate to their needs in the least possible restrictive environment and least possible intrusive manner consistent with the effective giving of that care and treatment; and
(b)in providing for the care and treatment of people with a mental disorder and the protection of members of the public any restriction upon the liberty of patients and other people with a mental disorder and any interference with their rights, privacy, dignity and self-respect are kept to the minimum necessary in the circumstances.

[118]The Act provides that mental disorder includes mental illness: s 3(1).

To facilitate the implementation of the policy underlying the Act, various classes of persons, such as medical practitioners and police officers, are given specified powers and have duties imposed on them. Section 10 is the principal section that deals with the role of the police officer in relation to persons who may be mentally ill. Sub‑section (1) empowers a police officer to apprehend a person who appears to the police officer to be mentally ill[119] if the police officer has reasonable grounds for believing that the person has recently attempted to commit suicide or cause harm to himself or herself or another person, or is likely to do any of those things. It seems that sub‑s (1A) eases the police officer’s burden of determining if a person appears to be mentally ill by providing that, in making the decision on that matter, the police officer is not required to exercise any ‘clinical judgment’ but may come to a conclusion ‘having regard to the behaviour and appearance of the person’. It is apparent enough that the power to apprehend under s 10(1) is a discretionary one that is enlivened only on the satisfaction of the abovementioned criteria and the exercise of that power is necessarily circumscribed by the competing consideration that any interference with the liberty of the person is to be exercised with caution. Importantly, in undertaking the decision making process under the Act the police officer is required to take into account the competing policy considerations of the legislation to which reference has been made, namely, providing to people with a mental illness the best possible care and treatment while at the same time keeping restrictions upon their rights, privacy, dignity and self respect to the minimum necessary in the circumstances.
[119]The determination of whether a person is in such a state involves a difficult analysis given the complex definition of that term in the Act.

In order to apprehend a person under s 10(1) a police officer may enter any premises and use such force ‘as may be reasonably necessary’: s 10(2). Once a person is so apprehended, the police officer must arrange for an examination of that person by a registered medical practitioner as soon as practicable: s 10(4). Powers and obligations are imposed by the legislation on the mental health practitioner who assesses a person who has been apprehended under s 10(1). Importantly, s 10(9) relevantly provides that nothing in s 10 limits ‘any other powers of a member of the police force in relation to that person’. Thus, the power essentially confers on members of the police the ability to detain a person in the circumstances that are prescribed, where otherwise they might not be authorised; properly construed, it is not a power conferred at large to enable police to prevent suicide.

Generally, a lay person is under no duty to prevent another from doing self-harm or harming another.[120] A police officer, however, has a duty and power to enforce public order and the criminal law and is given a broad discretion as to how to exercise that power. Importantly, the duty is owed by the police officer to the general public and not to any particular member of it. These principles, and the jurisprudential basis for them, are dealt with in the ‘police cases’ to which the Chief Justice refers in her reasons.[121]
[120]Smith v Leurs (1945) 70 CLR 256, 262 (Dixon J).
[121]At [22]-[29]. See also, eg, Sullivan v Moody (2001) 207 CLR 562, 581; R v Commissioner of Police of the Metropolis; Ex parte Blackburn [1968] 2 QB 118, 136 (Lord Denning MR), 138 (Salmon LJ); Thompson v Vincent (2005) 153 A Crim R 577, 599-600 (Mason P); Halech v State of South Australia (2006) 93 SASR 427.

Thus, it seems clear enough that, in deciding whether to exercise the discretion under the Act, the police officer must do so in the context of a number of constraints. Relevantly, the Act obliges the member of the police to make a ‘fine line’ decision in that regard, requiring the officer to determine not only whether the requirements of s 10(1) are made out, but also to take into account the competing policy considerations expressed in the Act. Moreover, in light of s 10(9), the police officer is to exercise the discretion in the context of the duty to maintain public order, a duty that, as has been noted, is owed to the public generally and not to any individual member of it. It seems to me that the same would apply to the exercise of the discretion under s 10(1). That is to say, the duty would be exercised in the public interest as it is articulated in the Act.

In those circumstances, the imposition of a common law duty on such a police officer – being something for which the appellant contends – would amount to what the majority of the Court of Appeal in Hunter Area Health Service v Presland[122] described as a ‘distorting’ influence on the discretionary power created by the Act and would be inconsistent with the abovementioned aspect of the legislative scheme. In my opinion, the imposition of a common law duty of care on a police officer who must decide whether to exercise the statutory discretion under s 10(1) would create a situation of the kind identified by Spigelman CJ in Presland.[123] In that case, his Honour noted the circumstances where a common law duty would be inconsistent with the legislative scheme or would be otherwise inappropriate by reason of the scope and purpose of the legislation, namely:
[122](2005) 63 NSWLR 22.
[123]Ibid 29.

·liability in tort may “distort [the] focus” of the statutory decision-making process; (Crimmins (at 101 [292]))
·the decision may be made in a “detrimentally defensive frame of mind”; (Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 at 63D)
·a common law duty should not be imposed if it “would … have a tendency to discourage the due performance of … statutory duties”; (X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 739D)
·the imposition of a duty of care may “undermine the effectiveness of the duties imposed by the statute”; (Graham Barclay Oysters Pty Ltd (at 574 [78])).

…

The analysis undertaken by the Court in Presland of the matter before it is, I think, of assistance in the resolution of the principal issue before us, particularly bearing in mind the similarity in the respective legislation. In that case, a patient was discharged from a psychiatric hospital by a psychiatrist and six hours later killed his brother’s fiancée. The patient was acquitted of murder on the ground of mental illness and detained for a period in strict custody as a forensic patient. He successfully brought a claim for negligence against the psychiatrist and the hospital for failure to exercise reasonable care by not caring for and restraining him in circumstances where he was at risk of injuring himself and others as a consequence of his mental illness. On appeal, the majority, Sheller and Santow JJA (Spigelman CJ dissenting), concluded that neither the hospital nor the psychiatrist was liable at common law (or under the legislation). Sheller JA considered[124] that the identification of the nature of the harm suffered pointed as a matter of commonsense against the exercise of a legal responsibility for that harm. Santow JA recognised that, like here:

[t]he statutory scheme requires the civil rights of the individual to be accommodated and balanced against the need for restraint of a mentally ill or disturbed person so affording him access to treatment in the interests of both patient and the wider community. The critical task is to assess whether the person meets the statutory description of a mentally ill person or mentally disturbed person and then ensuring that “any interference with their rights, dignity and self-respect are kept to the minimum necessary in the circumstances” (s 4(2)(b) of the Act).[125]

His Honour highlighted that the power in question in a case such as the one before him concerned:
… the need for impartiality of decision-making in this difficult area, on the part of hospital psychiatrists and hospital supervisors. They are charged with making difficult decisions which are to accommodate in the words of Clarke JA in Harry “access to appropriate care” with “protecting … civil rights”. If the duty of care is so extended as to render hospitals and psychiatrists liable for any carelessness that brings about adverse consequences to those affected by those difficult decisions, will this distort the impartiality of that judgment, so made in a detrimentally defensive frame of mind? [126]

[124]Ibid 102.

[125]Ibid 111.

[126]Ibid 112.

The learned judge considered that the case was not one where the common law duty was derived from statute and that the fine line discretion of the hospital and its relevant staff was ‘also reason for questioning whether an extended duty of care may be inconsistent with the legislative scheme’.[127] He concluded that the common law duty did not extend to governing the exercise of the relevant discretion.[128] More specifically, he said:

…to impose a duty of care in favour of that person with respect to his or her compulsory detention entails that the duty would apply both for carelessly failing to detain or carelessly choosing to detain. That introduces a distortive influence upon the hospital superintendent’s or psychiatrist’s exercise of his or her statutory discretion in either direction. The review safeguards offer no ultimate solution. At each point in the review process, depending on the circumstances, there will be a fear of legal action for failing to detain or failing to release; the discretion would be prone to being exercised in “a detrimentally defensive frame of mind”; compare Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 at 63D; Crimmins (at 77 [216]). That distortive effect is also an example of where the imposition of duty of care, so extended, introduces an incoherence to the law by being inconsistent with the impartial exercise of discretion under the Act.

[127]Ibid 117.

[128]Ibid 118.

I consider that, for like reasons, the imposition of the common law duty of care for which the appellant contends in this case would be inconsistent with the legislative scheme made apparent by the Act. And it is plain enough that, generally, such a duty will not be imposed in those circumstances.[129]
[129]See, eg, Tame v New South Wales (2002) 211 CLR 317, 396 (Gummow and Kirby JJ); Sullivan v Moody (2001) 207 CLR 562; Brooks v Commissioner of Police for the Metropolis [2005] 1 WLR 1495, 1510 (Steyn LJ).

I add for completeness that, in my view, the control and vulnerability of the person to whom a duty is said to be owed of which Gummow and Hayne JJ spoke in Graham Barclay Oysters, and that existed in cases such as Pyrenees Shire Council v Day[130] and Brodie v Singleton Shire Council,[131] did not exist in the present case.[132] To the extent that it could be said that the police officers here had control in respect of the relevant risk, such control was of a limited nature. In considering the question of control, it is relevant to compare the nature of the harm that potentially might have been prevented and the power that, it is said, ought to have been exercised by the police officer. The power to take the person to a medical practitioner does not operate directly to prevent any risk of harm posed to or by that person. And it is not insignificant that the nature of the harm here is one that is self- inflicted, which raises questions about the degree to which it is possible to assume control over such a risk, particularly, as s 10(1) itself implicitly contemplates, a person to whom such a duty is said to be owed might not appear to be mentally ill. It is not apparent here, for example, that, given the deceased’s conduct in deceiving the police and the appellant, the exercise of power could have removed the risk to the deceased. Similarly, I think that there was no relevant vulnerability or dependence by the deceased on the police officers. The lack of effective control and the lack of dependence by the deceased on the police officers is to be contrasted with the situation in Cran v State of New South Wales,[133] where the claimant was incarcerated for an unduly prolonged period because of a police officer’s failure to complete the paperwork necessary for his release and, as a result, he suffered a psychiatric illness. The relevant risk in that case would have been removed had the police officer completed the paperwork.
[130](1998) 192 CLR 330, 389 where Gummow J spoke of ‘a significant and special measure of control’.
[131](2001) 206 CLR 512.
[132]As it did not in Graham Barclay Oysters.
[133](2004) 62 NSWLR 95.

In light of the above considerations, I think that the respondents cannot be held liable to the appellant in negligence. In the circumstances, I think that his Honour’s discharge of the jury was made without relevant error. It is not necessary to deal with the appellant’s argument that certain findings of his Honour were wrong, but even if that were the case, it would not alter my critical conclusion that no common law duty of care was imposed on the police officers in this case.

For the above reasons, I would dismiss the appeal.

[2008] VSCA 32

29 February 2008