McStravick v State of WA & Ors

[2003] HCATrans 703

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P3 of 2002

B e t w e e n -

CYRIL McSTRAVICK

Applicant

and

THE STATE OF WESTERN AUSTRALIA

First Respondent

ANTHONY THOMAS, DANNY, SELDAM, ALISON SELDAM, NEIL GOUGH, MARY GOUGH, PETER VAN RYN, MICHAEL NELSON, GREG HARLAND, ALEX JONES, WAYNE DREW, GLENIS GARNETT, DANNY MEADE, ROHAN CALVERT, CRAIG NELSON

Second Respondents

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 9 MAY 2003, AT 11.57 AM

Copyright in the High Court of Australia

__________________

MR D.R. CLYNE:   If it please the Court, I appear for the applicant.  (instructed by Friedman Lurie Singh)

MR G.T.W. TANNIN, SC:   If it please the Court, I appear with my learned friend, MS K.E. McDONALD, for the respondent.  (instructed by the Crown Solicitor for the State of Western Australia)

McHUGH J:   Yes, Mr Clyne.

MR CLYNE:   The issue in respect of which we say special leave should be granted in this case ‑ ‑ ‑

McHUGH J:   Before you commence, the Deputy Registrar has certified that she has been informed by McAuliffe Williams & Partners, solicitors for the second respondent, that the second respondent does not intend to appear at the hearing of the application for special leave to appeal.  Yes, Mr Clyne.

MR CLYNE:   Thank you, your Honour.  The special leave point is as to what is the duty of care which is owed by the State in the guise of the police department to a police officer acting in the course of his duty.

McHUGH J:   The question may arise as to whether they owe any duty of care.

MR CLYNE:   That is correct, your Honour, and it is a matter that has not been determined in this case and is one that we say cries out for determination.  It arises in this case because, until the nature of the duty is known and the standard of care flowing from that identified, it is not possible for a court to make a judgment upon the issue of negligence.  Negligence, of course, it is trite to say requires there to be a breach of duty.  In this case the duty has not been identified but both the trial judge and the Full Court dismissed the allegations of negligence.  We say, however, they did so without first determining the issue of just what the duty was and the standard of care.

The trial judge seemed to appreciate the issue at the commencement of his judgment, page 4 of the application book, paragraph 6, where he noted that:

a crucial issue joined on the pleadings is the nature of the relationship between the plaintiff, at the relevant time a member of the police service, and the State of Western Australia.

Unfortunately, that was never dealt with in the course of his Honour’s judgment. 

In the Full Court, Justice Einfeld, who wrote the substantive judgment, at paragraph 29, page 54 of the application book, found that it was unnecessary to examine the issues of employment or vicarious liability because he found there was no negligence.  So we say it is impossible in a case involving negligence to make that determination until the nature of the relationship between the relevant parties is first determined ‑ ‑ ‑

KIRBY J:   But is it not fair to say that both at the trial and in the Full Court that the course was taken to, as it were, put to one side this interesting and difficult question of law and to say, “Well, let us just look at this matter on the normal basis that it is an employment‑type duty and let us see if it is a case that presents as a negligence case and then we will go and look at whether there is a legal duty at all”, and that they then dealt with the case as you had presented it, as a factual matter.  They went into the question of helmets and the number of police officers and things of that kind.  Is that not a course that was available to them, to deal with it on an ordinary basis, leaving to one side for the moment the trickly legal questions which were then presented if you got a favourable answer on the facts?

MR CLYNE:   Yes.  Your Honour, we would say that you cannot deal with the matter in that way simply by saying this may be an ordinary employment situation.  It is not clear in any event that that is what the either the learned trial judge or the Full Court did.

KIRBY J:   But that is an assumption favourable to your client, is it not?  That is an assumption favourable.  That is saying, “We will assume for the moment that this is something that you can make out in law and we will deal with it on the facts and only if we get a positive answer to the factual proposition do we then have to look at the legal question.”

MR CLYNE:   Your Honour, we would say that you cannot do it that way because the nature of the duty, the standard of care in a case such as this, one would say given the findings it is implicit that both tribunals have set the bar too low in terms of the standard of care.

McHUGH J:   Yes, but your problem is, as Justice Einfeld points out at page 41, line 6:

Only the finding of negligence was argued on appeal.

No question of duty or its content appears to have been argued; it was the question as to whether or not the particulars had been made out.  Now, that was a very favourable approach from your point of view.  I can understand why Mr Nugawela was happy with that.  He did not have to get into the vexed question as to whether there was any duty of care at all.

MR CLYNE:   Your Honour, we would say that it is implicit from the findings that the duty actually applied is one that is too low because it has only been a duty set at the usual standards, if you like, and here in a situation which was potentially life threatening, the standard of care owed by the employer should have been set much higher and should have been identified before the questions of breach were examined.  You cannot examine questions of breach until you know what the duty is that is said to be breached.  That is the issue.

McHUGH J:   It may be unfortunate.  I have to say with all respect to those who appear to have accepted the contrary, I think it is very difficult to argue that any safe system of work is owed to police officers in this context.  Enever establishes that you cannot give orders to a constable as to the way he carries out his duty.  Once that is accepted, it is very difficult to see how you can make a case of duty of care in an operational situation.

KIRBY J:   Justice McHugh is beginning to make it sound more interesting because Enever is a case which has been criticised in a lot of law reform and other academic writing.  It has stood for a century.

MR CLYNE:   I was about to invite your Honours to re‑examine Enever given that it is a 1906 case.  Of course, the practicalities in this situation were that this police officer, whilst it may be said theoretically he was independent, he was ordered to do certain things and he was ordered to do things and he faces penalties if he does not do them.  We would say that the decision of Enever is no longer appropriate in the 21^st century and needs to be re‑examined.

There are, of course, two Full Court decisions.  They are referred to in the submissions filed in support of this application.  The first is the State of Queensland v Keeyes, which is referred to at page 68 of the application book, from the Full Court of Queensland and the second, McDonald, Wilson & Shepherd v State of New South Wales, which is also referred to.  Both of those cases say that there is, I would suggest, a non‑delegable duty of care arising from the employment situation and that, we say, is different to the authority of Enever which, of course, is still maintained by my learned friend in his submissions at pages ‑ ‑ ‑

KIRBY J:   Enever was confirmed in the middle of the century, was it not?  Did it not come before the Court again in the Perpetual Trustee Case?

MR CLYNE:   It did, your Honour, and that is referred to ‑ ‑ ‑

KIRBY J:   I think it was upheld as then still applicable, that is in 1952.

MR CLYNE:   That is in 1952 and the Privy Council in 1955.

McHUGH J:   The basic principle that stands behind Enever was applied again by this Court in a case I cannot remember at the moment, concerning ships pilots, which was a case from Western Australia.

MR CLYNE:   Oceanic Crest I think, your Honour.

McHUGH J:   Yes.

MR CLYNE:   Yes, it was confirmed in that situation.  It may well be that in certain circumstances where a police officer may be acting independently that Enever could apply, but where, as here, he is in a position of being directed to comply with orders under penalty ‑ significant penalties, financial, demotion, could be posted to the outback of Western Australia, which is not a lot of fun – all of those things place pressure on him to comply.  It is that additional factor that we say means that Enever ought not apply in a case such as this and the matter needs to be re‑examined.  Those, with respect, are my submissions.

McHUGH J:   Yes, thank you very much, Mr Clyne.  Yes, the Court need not hear you, Mr Tannin.

MR TANNIN:   May it please the Court.

McHUGH J:   Mr Clyne, in your written submissions you rely on a number of matters.  Do you press those as well, failure to refer to expert evidence and matters of that nature, or is it just this first point?

MR CLYNE:   It is just this one, your Honour.  The other ground that we had as to the Full Court failing to properly evaluate the evidence, the High Court I think determined recently in Fox v Percy the relevant principles, and I cannot say that this is anything over and above that.

McHUGH J:   Yes.

MR CLYNE:   Thank you, your Honour.

McHUGH J:   Yes, thank you, Mr Clyne.

In a proper case the question of the duty of care owed to a serving police officer in Australia when carrying out operational duties is an important question that could attract a grant of special leave.  However, in light of the conclusions on the facts of this case reached at the trial by the primary judge and the way the case appears to have been conducted in the Full Court, the potentially important question does not arise in this case, or at least does not arise in circumstances that make this a suitable vehicle for the exploration of the legal issue involved.  Accordingly, special leave to appeal is refused with costs.

The Court will now adjourn to reconstitute.

AT 12.09 PM THE MATTER WAS CONCLUDED