Richards, Teresa v State of Victoria
[2009] VCC 1349
•29 October 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI – 08 - 03920
| TERESA RICHARDS | Plaintiff |
| v | |
| STATE OF VICTORIA & ORS | Defendant |
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| JUDGE: | LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 October 2009 |
| DATE OF JUDGMENT: | 29 October 2009 |
| CASE MAY BE CITED AS: | Richards, Teresa v State of Victoria |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1349 |
REASONS FOR JUDGMENT
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Catchwords: Strike out application – application to strike out Plaintiff’s Statement of Claim as disclosing no cause of action – whether police officers in carrying out police duties owe a duty of care – in circumstances as pleaded by Plaintiff application dismissed
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. J. Gorton of Counsel | Birch Ross & Barlow |
| For the Defendant | Ms. R. Orr of Counsel | Victorian Government Solicitor |
| HIS HONOUR: |
1 By summons dated 15 May 2009 the defendants seek an order pursuant to Order 23.01 of the County Court Rules that this proceeding be summarily dismissed on the ground that the Statement of Claim delivered by the plaintiff does not disclose a cause of action.
2 It is common ground between the parties that the relevant test to be applied by the Court in deciding such an application is that set down by the Court of Appeal in Coles Myer Ltd v. Bowman [1996] 1 VR 457 at 549 where the Court said, inter alia, that such an application is to be refused unless the claim on the pleadings is so untenable that it cannot possibly succeed.
3 Here, the defendants accept for the purposes of the argument on the summons, that the facts as pleaded by the plaintiff in the Statement of Claim be taken as having been proved. Nonetheless, the defendants contend that on proper analysis the plaintiff’s claim is clearly untenable, cannot possibly succeed and should be struck out.
4 The first defendant is sued pursuant to section 23 of the Crown Proceedings Act (1958) and section 123 of the Police Regulation Act (1958). The other defendants are each police officers in the State of Victoria. The first defendant is said to have been vicariously liable for the acts of the other defendants as police officers.
5 The Statement of Claim alleges that on or about 6 February 2007 the plaintiff was in premises known as the Foster Florist Shop (“the premises”) when one or other or each of the second to fifth named defendants in the course of their duties as members of the Victoria Police entered the premises in order to arrest a member of the public and in the course of doing so sprayed capsicum spray and/or capsicum foam thereby exposing the plaintiff to both substances which she allegedly inhaled, ingested and came into physical contact with.
6 The Statement of Claim alleges that at the time that the capsicum spray and/or foam was deployed it was “inappropriate and/or unnecessary” to do so “in the premises” which are particularised to consist of “a small shop” it being “a confined space”. It is also pleaded that at the time of the arrest of the offender that person “had calmed considerably and was compliant prior to the deployment of capsicum spray” and the offender “could have been removed from the premises without the need for such action.” As I have indicated, for the purposes of the argument those facts are to be taken as having been proven.
7 Further, it is pleaded by the plaintiff that the second to fifth defendants, at the time that the capsicum spray and/or foam was deployed, “knew or ought to have known that the plaintiff had suffered from the exposure” to the substances and could have suffered injury.
8 Further, there is a pleading that having exposed the plaintiff to capsicum spray and/or foam the second to fifth named defendants failed to do anything or take proper steps to care for the plaintiff by advising her to immediately wash her eyes and skin and to remove her clothing.
9 The plaintiff claims that she was injured and has suffered loss and damage as a result of having being sprayed and/or exposed to the substance of the capsicum spray and/or capsicum foam.
10 The plaintiff pleads the cause of action in negligence and in paragraph 17 of
the Statement of Claim pleads the duty in the following terms:
“At all times material, the second, third, fourth and fifth defendants owed a duty to the plaintiff to take reasonable steps to avoid causing her injury when carrying out their duties as members of Victoria Police.”
11 That pleading must be taken to relate to both the time of arrest when the capsicum spray was used and also the time after exposure when it is said the defendants did nothing to relieve the plaintiff from the injuries suffered and the effects of the spraying of her.
12 The defendants submit that in the circumstances of this case no such duty as pleaded in paragraph 17 of the Statement of Claim exists as a matter of law. The plaintiff on the other hand contests this and emphasises that properly analysed there are two aspects of the claim summarised as a duty not to cause the injury by spraying or exposing the plaintiff and/or, having done so, a duty to take proper care of the plaintiff to ensure that the effects of the spraying or exposure were ameliorated by advising her on what steps to immediately take to relieve herself of the harmful effects of the capsicum spray and/or foam.
13 In a powerful argument assisted by a detailed submission in writing, Ms. Orr submitted that there could be no duty of care arising in the circumstances pleaded here because:
(a). the existence of a duty of care here was inconsistent with other police duties and responsibilities particularly the duty to apprehend and bring to justice alleged wrong doers; and (b). there are general policy considerations which, when considered, weigh
against the existence of a duty of care.14 Ms. Orr’s written submission helpfully analysed all of the authorities which deal with the two principal submissions which she developed in argument.
15 In Tame v. New South Wales (2002) 211 CLR 317 the High Court held that a police officer did not owe a duty of care to the appellant who alleged she had suffered psychiatric injury arising from an error by a police officer in completing a form setting out details of a traffic accident. The error was to state wrongly that the appellant had a blood alcohol content when driving when she in fact did not. The police were in no way involved in the accident and merely attended for the purpose of investigation of it. There was no direct physical injury caused by the actions of the police officer involved. The High Court held that in the circumstances the existence of a duty of care by the investigating police officer was inconsistent with his primary duty to investigate the traffic accident.
16 The principle in Tame follows that which is found in an earlier decision of Sullivan v. Moody (2001) 207 CLR 562 where the court said that coherence of the law required a duty of care to only be imposed where that duty can rationally be related to the functions, powers and responsibilities of the various persons and authorities who are alleged to owe that duty.
17 Ms. Orr referred to a number of cases decided at State Supreme Court level where statements of claim had been struck out where it was alleged police owed a duty of care to members of the public in the discharge of their duties as police officers. She referred to, inter alia, Halech v. State of South
Australia (2006) 93 SASR 427; Gandy & Anor v. State of Victoria [2006] VSC 480 (Bongiorno J); State of NSW v. Klein (2006) Aust Torts Reports 81-862; Soutter v. Williams & Ors [2007] VCC306 (County Court of Victoria Judge
Davis).
18 In Gandy (supra) Bongiorno J (as he then was) said, inter alia, at paragraphs
7 to 9:
“The question of law which arises can be relatively simply dealt with. Sometimes a police officer may owe a duty of care to a citizen such as the occasion referred to by the Full Court in Zalewski v. Turcarolo, where a police officer negligently injured a citizen in circumstances, described by Hansen J, as ’on the spot’ operational activities. And of course a police officer may be liable to a citizen in negligence for driving a motor vehicle, or carrying out other activities in the course of his duty as a police officer which would in any event breach a duty of care which he owed to a citizen. The problem in this case is that the duty of care the statement of claim seeks to set up is not that type of duty of care. It is a duty of care with respect to the carrying out of the police officer’s obligations qua police officer.”
19 Zalewski v. Turcarolo [1995] 2 VR 562 is a decision of the Full Court of the Supreme court of Victoria. I am of course obliged to follow it as binding authority unless satisfied that it is no longer the law of this state. Mr. Gorton relies heavily upon this decision and contends that I must follow it.
20 Zalewski was discussed and not followed in State of NSW v. Klein (supra). Klein is a case where the mother of the deceased and other relatives sued the NSW police force for damages for psychiatric injury said to have been suffered as a result of the police having shot the deceased at the home of the deceased mother who was the first named plaintiff. She was the only one of the plaintiffs actually in the vicinity at the time of the shooting. A Master and subsequently a Judge on appeal from the Master refused to strike out the Statement of Claim. Young CJ in Equity surveyed all of the authorities including Hill v. Chief Constable of West Yorkshire [1989] AC 53 and Sullivan (supra) and Tame (supra) and Zalewski (supra).
21 In Hill the plaintiff was the mother of a victim of Jack the Ripper. The plaintiff sued the police claiming negligence in the conduct of investigations into the crimes of Jack the Ripper and had thus failed to apprehend him resulting in the murder and death of her daughter. A judge had struck out the Statement of Claim and a subsequent appeal to the Court of Appeal failed. The House of Lords found that although police officers could be liable in tort to persons injured as a direct result of their acts or omissions there was no general duty owed by them to apprehend an unknown criminal, nor did they owe a general duty of care to individual members of the public who might suffer injury through the criminal’s activities. The House further held that as a matter of public policy the police were immune from actions for negligence in respect of their activities in the investigation and suppression of crime.
22 But the House of Lords in Hill should not be taken as having held that members of the police force in England were absolutely immune from a proceeding in damages for negligence. At page 59 of the report in the judgment of Lord Keith of Kinkel his Lordship said, inter alia:
“There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence. Instances where liability for negligence has been established are Knightly v. Johns [1982] 1 W.L.R. 349 and Rigby v. Chief Constable of Northamptonshire [1985] 1 W.L.R. 1242.”
23 I pause to note that on the facts pleaded in the statement of claim in the instant case the plaintiff claims damages in negligence as a result of having suffered injury and loss and damage as a result of the direct actions of one or other of the second to fifth named defendants.
24 In Zalewski the plaintiff was shot a number of times by police in a siege situation where the plaintiff was the person responsible for the siege. The Full Court distinguished Hill (supra) and on the basis of the authority found in Knightly (supra) and Rigby (supra) and held that there was no immunity from suit based on public policy grounds in the circumstances of the case where the plaintiff had been injured in circumstances directly created by the actions of the police officers concerned. Knightly and Rigby were thought by the Court to be examples of the type of “on the spot operational activities” where the court found a duty of care would exist and which were spoken of in accepting terms by Bongiorno J in Gandy.
25 Of the decision in Zalewski (supra) Young CJ in Equity in Klein (supra) said,
inter alia;
“One would not say that Zalewski was wrongly decided on the facts, but it would seem to me that in the light of subsequent decisions of high authority both in this country and in England, it is of very limited precedent value in this 21st century.”
26 It is clear that the law in this area has moved on since Zalewski was decided in 1994. However, the law does still recognise a category of cases where a police officer may be liable in negligence. Knightly and Rigby are two such categories. In her submissions Ms. Orr conceded this but argued these were exceptional cases largely confined to custodial situations and other situations in which the police officer has engaged in positive dangerous behaviour that has created a situation of risk. In argument she conceded that such situations might occur where, for example, an inappropriate police car chase ensued in heavy traffic and where there were pedestrians present resulting in injury. Another might be where for example in attempting to apprehend an armed robber police fire weapons in a crowded shopping area injuring an innocent bystander.
27 Mr. Gorton submitted that this was not the type of claim that should be dismissed summarily having regard to the facts as pleaded. He relied on Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J (as he then was) at page 92. Mr. Gorton referred to a number of cases as examples of cases where police had been found to have owed a duty of care including Zalewski (supra), State of Victoria v. Horvath (2002) 6 VR 326, Rigby (supra) and Knightly (supra).
28 Having given this matter considerable thought since reserving my decision I have formed the view that the defendants’ summons ought be dismissed for the following reasons:
a.
Unlike the situation in Sullivan or Tame, in this case the plaintiff claims to have been injured as a direct result of the conduct or actions of the second to fifth defendants. This case is I think distinguishable from Sullivan and Tame. This is not a case of injury occasioned by a failure to investigate or failure to act. It is a case where the allegation is that in acting as they did the police failed to have proper regard for the effect of their direct actions upon an innocent bystander (the plaintiff) who was a witness to what they were doing, and then, having injured her, failed to remedy the effects of their actions. The Plaintiff’s claim is two pronged.
b.
In this case the possible finding of a duty of care arguably is not inconsistent with a duty imposed on police to apprehend offenders. On the facts as pleaded it is arguable in my view that the police could have used other means to apprehend the offender especially having regard to the fact that the time of the arrest the offender is said to have been calmed and compliant.
c.
The finding of the existence of a duty of care here is not necessarily contrary to the public interest. The use of capsicum spray and/or capsicum foam is a relatively new weapon used by police. It is not necessarily contrary to public policy to question the police use of such substances in either crowded or confined places where other persons (not the offender) might be touched and affected by these substances.
d.
Depending on how the evidence unfolds at trial it is arguable in my view that this case could be regarded as an exceptional type of case. In my judgment it cannot be the case where the police can with virtual immunity be allowed to deploy capsicum spray in all situations. What if the offender here was sprayed with capsicum spray in one of Melbourne’s crowded trains during peak hour or at a crowded outer at the MCG during the course of the AFL Grand Final? In my judgment those situations would fall for decision as exceptional cases because of the crowd. But it maybe that an exceptional case can occur even where there is no crowd present but where the place where the substance is sprayed is so confined (as pleaded here) as to make the density of the spray greater or the rate of dissipation of the spray slower thereby increasing the chance of injury to a person in the position of the plaintiff.
29 In my view these are all matters for determination at trial as the evidence unfolds. I conclude that the claim on the pleadings is not so untenable that it cannot possibly succeed.
30 Accordingly the Defendants’ application by summons dated 15 May 2009 is refused and the summons dismissed with costs.
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