State of New South Wales v Plum

[2015] NSWSC 1566

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Plum [2015] NSWSC 1566
Hearing dates:	19 October 2015
Date of orders:	27 October 2015
Decision date:	27 October 2015
Jurisdiction:	Common Law
Before:	Harrison AsJ
Decision:	(1) The plaintiff’s notice of motion filed 21 August 2015 is dismissed.  (2) The plaintiff is to pay the defendant’s costs as agreed or assessed on an ordinary basis.
Catchwords:	CIVIL PROCEDURE – application to transfer proceedings from District Court to Supreme Court – whether there is sufficient reason to transfer – whether there are complex issues to be determined – complexity of determining whether police officers owed a duty of care to plaintiff during arrest and detention in police vehicle - whether the proceedings involve issues of public importance
Legislation Cited:	Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Mental Health Act 1986 (Vic)
Cases Cited:	Brooks v Commissioner of Police of the Metropolis [2005] 2 All ER 489; [2005] 1 WLR 1495 Cran v State of New South Wales [2004] NSWCA 92; (2004) 62 NSWLR 95 Hill v Chief Constable of West Yorkshire [1989] AC 53; [1988] 2 All ER 238 Kirkland-Veenstra v Stuart and Others (2008) 23 VR 1; [2008] VSCA 32 Parry v WGE Engineering Pty Ltd [2003] NSWSC 337 Rinbac v Owners Strata Plan No 64972 (2010) 77 NSWLR 601; [2010] NSWSC 656 Ryner Pty Ltd v Roller [2007] NSWSC 372 Stuart v Kirkland-Veenstra (2009) 237 CLR 215; [2009] HCA 15 Tabbaa v TCN Channel Nine Pty Ltd [2015] NSWSC 920 Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; [2002] HCA 35 Younes v QIC Ltd trading as Westpoint Blacktown [2012] NSWSC 451
Category:	Procedural and other rulings
Parties:	State of New South Wales (Plaintiff) Debra Fay Plum (Defendant)
Representation:	Counsel: M Hutchings (Plaintiff) R Perla (Defendant)   Solicitors: Makinson & D’Apice Lawyers (Plaintiff) Shine Lawyers (Defendant)
File Number(s):	2015/245006
Publication restriction:	Nil

Judgment

1. HER HONOUR: By summons filed 21 August 2015, the plaintiff seeks an order that proceedings 2014/238171 in the District Court at Sydney be removed into this Court pursuant to s 140 of the Civil Procedure Act 2005 (NSW); an order that the pleadings in the District Court proceedings stand as pleadings in the proceedings in this Court; and an order that costs be costs in the cause.

2. The plaintiff is the State of New South Wales (“State of NSW”). The defendant is Debra Fay Plum (“Ms Plum”). In the District Court proceedings, Ms Plum is the plaintiff and the State of NSW is the defendant. For convenience I shall refer to the parties by name. The State of NSW relied on the affidavit of its solicitor David John Wong filed 21 August 2015.

3. Ms Plum opposes the transfer of proceedings to this Court. In the event that the proceedings were transferred, Ms Plum does not oppose the orders concerning pleadings and costs.

Factual background

4. For the purposes of this application, the following facts are not in dispute.

5. On 13 August 2011, Ms Plum’s son, Jason Plum (“Mr Plum”) was arrested by officers of the NSW Police Force and subsequently detained in the custody compartment of a police vehicle.

6. Mr Plum was taken in the police vehicle from the location of his arrest to the Wagga Wagga Police Station.

7. Upon arrival, but while still inside the custody compartment of the police vehicle, Mr Plum fatally shot himself.

8. It was later discovered that Mr Plum had been in possession of a small pistol that had not been detected at the time of his arrest.

The pleading framework

9. On 13 August 2014, Ms Plum filed a statement of claim against the State of NSW seeking damages for nervous shock within the meaning of s 31 of the Civil Liability Act 2002 (NSW). Ms Plum alleges that the State of NSW owed Mr Plum a duty of care to take reasonable precautions against him suffering injury; and that it owed her a duty of care to take reasonable care not to cause her mental harm (S/C [12], [13] and [16]).

10. Paragraphs [12] and [13] of the statement of claim plead:

“[12]   While the Deceased was in the care, lawful custody and control of the Officers, the Officers owed the Deceased a duty of care to take reasonable precautions against the Deceased suffering injury.

[13]   The Officers owed the Plaintiff a duty to take reasonable precautions against the Deceased suffering injury.”

11. The particulars of negligence are (at [16]):

“(a)   Failure to conduct any or any adequate or proper search of the Deceased;

(b)   Failure to identify any dangerous items including the Weapon;

(c)   Failure to maintain observations of the Deceased;

(d)   Failure to prevent access to the Weapon;

(e)   Permitting the Deceased to retain possession the Weapon;

(f)   Failure to have any or any proper regard to the Computerised Operating Policing System (COPS);

(g)   Failure to follow usual NSW Police Force practice to search persons in custody proper to being placed in a Police vehicle;

(h)   Failure to have regard to the Deceased’s prior police and psychological history;

(i)   Failure to have regard or any proper regard to the Deceased referring to weapons;

(j)   Failure to have regard or any proper regard to the Deceased’s behaviour;

(k)   Failure to observe or adequately observe the Deceased.”

12. On 24 October 2014, the solicitor acting for the State of NSW requested further and better particulars of, inter alia, paragraphs [12] and [13] of the statement of claim.

13. On 18 December 2014, Ms Plum’s solicitors replied to that request and in relation to both [12] and [13] took the position that they were not proper requests for particulars. While there was further correspondence between the parties, the answers in relation to paragraphs [12] and [13] remain the same.

14. By defence filed 13 March 2015, the State of NSW denies firstly, that it owed Mr Plum or Ms Plum a duty of care and secondly, that it breached any duty of care. It also pleads novus actus interveniens and contributory negligence; relies on the maxim of ex turpi causa non oritur action; and relies on several sections of the Civil Liability Act concerning limitation of damages for pure mental harm, special provisions for offenders in custody, intoxication and self defence and recovery by criminals.

Transfer of proceedings – the law

15. Section 140 of the Civil Procedure Act sets out the power of this Court to transfer proceedings. It relevantly reads:

“140 Transfer of proceedings to higher court

(1)   The Supreme Cou rt may, of its own motion or on application by a party to procee dings before the District Co urt or the Local Court, order that the procee dings, including any cross -claim in the proc eedings, be transferred to the Supreme C ourt.

…

(3)   Procee dings in the District C ourt on a cl aim for damages arising from personal injury or death are not to be transferred to the Supreme Co urt under this section unless the Supreme Co urt is satisfied:

...

(ii)   that there is other sufficient reason for hea ring the procee dings in the Supreme Co urt.”

16. The power under s 140 is a discretionary one, to be exercised having regard to the circumstances of the case and so that justice is best served between the parties: Ryner Pty Ltd v Roller [2007] NSWSC 372, Price J at [7] cited in Tabbaa v TCN Channel Nine Pty Ltd [2015] NSWSC 920 by McCallum J at [6].

17. The onus rests on the party seeking the order: Parry v WGE Engineering Pty Ltd [2003] NSWSC 337, Malpass M at [3].

18. The considerations under s 56 of the Civil Procedure Act bear upon the exercise of the discretion: Younes v QIC Ltd trading as Westpoint Blacktown [2012] NSWSC 451, Bellew J at [44].

19. In Rinbac v Owners Strata Plan No 64972 (2010) 77 NSWLR 601; [2010] NSWSC 656, Brereton J at [11] set out the circumstances where a transfer will be permitted:

“[11]   The purpose of Civil Procedure Act, s 140, is to permit the removal from a lower court to a higher court of proceedings in the lower court where there is good reason to do so. Typically, that has been where there has been a risk that a jurisdictional limit affecting the lower court would be exceeded, where there are complex and important issues, and where the proceedings involve allegations of significant notoriety or public importance.”

20. It is common ground between the parties that the District Court has jurisdiction to deal with these proceedings and that the amount to be awarded will not exceed the jurisdictional limit.

21. The main reason that the State of NSW seeks the transfer to this Court is due to the complexity of what it says is the core issue in the case; the resolution of the question as to whether the police officers owed Ms Plum a duty of care in the circumstances in which they arrested and detained Mr Plum. The second reason is that it says this is an issue of public importance. These matters, it submitted, are sufficient reasons to transfer the proceedings to this Court. Ms Plum submitted that the reasons offered by the State of New South Wales for the transfer are not “sufficient” as required by s 140(1)(3)(ii).

22. Counsel for the State of NSW submitted that the issue of whether a duty exists, and the scope and content of the duty, is of considerable complexity. It argued that the resolution of that issue will be determinative in the proceedings, and requires careful analysis in the setting of a court that regularly considers such complex issues; which would be to the benefit of both parties and in accordance with s 56 of the Civil Procedure Act.

23. Counsel for Ms Plum argued that since similar issues surrounding the duty of care owed by police officers have been litigated in this Court, the NSW Court of Appeal and in the High Court, considering particular circumstances which may or may not give rise to a duty of care, there is no issue of significant complexity to be determined.

24. Counsel for Ms Plum submitted that the District Court is bound to apply the legal principles enunciated in the decisions of appellate courts and operates under the doctrine of stare decisis. He argued that the District Court is called on day in and day out to determine issues the same as those which will arise in determining these proceedings, namely, the existence of a duty of care and the scope and content of that duty. Further, Ms Plum says that s 56 of the Civil Procedure Act favours her application.

The law

25. The starting point is Hill v Chief Constable of West Yorkshire [1989] AC 53; [1988] 2 All ER 238, where the House of Lords considered a case in which the plaintiff’s daughter was attacked and died as a consequence. The plaintiff alleged that the murder could have been prevented had the police better investigated the activities of the murderer, who had been identified but discarded as a suspect in the course of the investigation.

26. In Hill, the House of Lords, held that as a matter of public policy the police were immune from actions of negligence in respect of the activities in their investigation and suppression of crime. The plaintiff’s statement of claim was struck out on the basis that it revealed no cause of action. Lord Keith of Kinkel stated at 63:

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

27. Cran v State of New South Wales [2004] NSWCA 92; (2004) 62 NSWLR 95 is a decision of the New South Wales Court of Appeal, which concerned a claim by a prisoner for injuries that allegedly resulted from his imprisonment which, it was asserted, was prolonged by the failure of the police and the prosecutor to carry out certain procedures in the investigation of the offences charged against him. In the course of dismissing the claim, the Court of Appeal considered the immunity of the police in relation to claims of negligence. In Cran, Santow JA stated at [63] to [64]:

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

[64]   The precise formulation of the asserted duty of care varied in the course of argument. But, however it is formulated, it is inconsistent with authority. It would create tensions in the law if not impair its coherence. The law recognises custodial liability to a prisoner on the gaoler’s part as well as the distinct tort of false imprisonment. But it steadfastly denies civil remedy in relation to the police investigative function, save where there is an assumption of responsibility. I should add, so far as the office of the DPP is concerned, that while I do not suggest there that breach of the prosecutorial guidelines was deliberate, there was clearly a significant breach. One may hope that these unfortunate circumstances lead to greater attention by the authorities to the importance of providing the analyst’s report promptly, particularly when delay can so injure the interests of someone in custody like the appellant.”

28. In Cran, Ipp JA, agreeing, stated at [68] to [71]:

“[68]   Our law has not yet recognised a duty of care of the kind asserted by the appellant (that is, in the circumstances in this case). The appellant submitted that a duty analogous to that recognised in Cekan v Haines (1990) 21 NSWLR 296 arose. But the police did not have custody of the appellant and no argument can be based on the analogy of the duty of care owed by a gaoler towards a person in custody.

[69]   In a novel case such as the present, policy considerations are paramount; they will determine whether a duty of care is to be recognised.

[70]   In my view, the policy factors identified by Steyn LJ in Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 at 349 preclude the recognition of a duty of care owed by the police to persons in custody to take care in carrying out their duties. Although his Lordship was there dealing with the duty of care owed by prosecution authorities to those who are being prosecuted, the policy factors he identified apply equally to the police.

[71   To paraphrase Steyn LJ (at 349), the recognition of a duty of care of the kind contended for by the appellant would tend to have an inhibiting effect on the discharge by the police of their central functions of investigating and preventing crime and apprehending offenders. It would in some cases lead to a defensive approach by police to their multifarious duties. It would introduce a risk that police would act so as to protect themselves from claims of negligence. The police would have to spend valuable time and use scarce resources in order to prevent law suits in negligence against them. It would generate a great deal of paper to guard against the risks of law suits. The time and energy of the police would be diverted from concentrating on their prime functions. That would be likely to happen not only during the investigative and preventative processes, and the administrative tasks ancillary thereto, but also when the police are sued in negligence by aggrieved defendants. The police would be constantly enmeshed in an avalanche of civil proceedings and civil trials. That is a spectre that would bode ill for the efficiency of the police and the quality of the services they provide.”

29. In other words, Cran establishes that policy factors preclude the recognition of a duty of care owed by police officers to persons in custody to take care in carrying out their duties, except where there is an assumption of responsibility.

Stuart v Kirkland-Veenstra

30. Finally, in Stuart v Kirkland-Veenstra (2009) 237 CLR 215; [2009] HCA 15, the High Court overturned a decision of the Victorian Court of Appeal, which had allowed an appeal from the County Court.

The Victorian Court of Appeal

31. Kirkland-Veenstra v Stuart and Others (2008) 23 VR 1; [2008] VSCA 32 was an appeal from a trial judge in relation to a claim for damages in negligence relating to a statutory power arising under s 10 of the Mental Health Act 1986 (Vic). The trial judge had dismissed the matter after eight days, on the ground that it was “impermissible” to translate a statutory power into a common law duty and therefore the duty of care alleged by the appellant did not exist in law. The appellant was Tania Kirkland-Veenstra (“Ms Kirkland-Veenstra”), the first and second respondents were two police officers and the third respondent was the State of Victoria argued to be vicariously liable.

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

32. The Victorian Court of Appeal allowed the appeal by a two to one majority. Warren CJ and Maxwell P distinguished the matter before them from “police cases” such as Hill, Brooks v Commissioner of Police of the Metropolis [2005] 2 All ER 489; [2005] 1 WLR 1495 and Tamev New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; [2002] HCA 35, which are “concerned with police activities in the investigation of crime, the recording of information in the course of that investigation and the administration of the criminal justice system” (at [29]) and confined themselves to cases where a duty arises out of failure to exercise a statutory power.

33. Warren CJ at [39] stated that “the present is not a case about law enforcement. It concerns a specific power vested in a special category of persons to prevent self-harm of the gravest kind. Further, it concerns a category of persons with authority and capacity to intervene”. After a review of the cases involving statutory powers, Warren CJ held that a duty existed to both Ms Kirkland-Veenstra and Mr Veenstra, to exercise power under s 10 of the Mental Health Act, but did not determine whether such a duty was breached. Maxwell P agreed that the case was not concerned with the police officers’ duty of criminal investigation (at [107] and [112]) and differed only slightly in his reasoning in finding a common law duty did arise. Chernov JA’s reading of s 10 saw the discretion to exercise the power in the context of the duty to maintain public order, a duty that is owed to the public generally and not to any individual member of it, and held that as such, the imposition of a common law duty on such a police officer would be contrary to the framework of the Mental Health Act (at [126]). On this reasoning, his Honour found no common law duty arose to either Mr Veenstra or Ms Kirkland-Veenstra.

The High Court

35. However, on appeal, the High Court in Stuart v Kirkland-Veenstra held that the police officers owed no duty of care as alleged, but the judges differed in their reasoning.

36. French CJ stated that the relevant power of apprehension conferred by s 10 is subject to two conditions. The first requires that a person appears to a police officer to be mentally ill. The second requires the officer to form a belief, based on reasonable grounds, that the person is likely, by act or neglect, to attempt suicide. His Honour held (at [58]) that since neither condition was satisfied by the facts, no duty of care in the exercise of that power could arise.

37. Gummow, Hayne and Heydon JJ stated that the duty alleged to be owed by the police officers to Mr Veenstra was a duty to prevent him from harming himself, not a duty to prevent harm to a third party. The duty would exist regardless of whether the person threatening self-harm was in fact mentally ill. The common law of Australia does not recognise such a general duty of care (at [99]).

38. Crennan and Kiefel JJ stated that the power of apprehension in s 10(1) requires a police officer to hold an opinion that a person is mentally ill within the meaning of s 8. Neither officer held that opinion. Hence the power to apprehend was not available and there was no statutory power to which a common law duty could attach (at [150]).

39. It is my view, after review of the above cases, that the law in relation to whether the police officers owed Mr Plum a duty of care is not complex. If the police officers did not owe Mr Plum a duty of care, then they do not owe Ms Plum a duty of care.

40. Counsel for the State of NSW also submitted that the actions and liability of police officers for actions in the course of their duty is a matter of public importance. Counsel for Ms Plum disagrees. As the law on this topic is settled, I do not think this case raises matters of public importance.

41. However, an important consideration is that a hearing date in the District Court has already been allocated for 22 February 2016 with an estimate of 10 days. There will be a significant number of witnesses. Ms Plum has served expert evidence and fully prepared her case. She is ready to go to trial. If these proceedings are transferred to this Court, there will be a significant delay before a hearing date is allocated. Ms Plum will also incur more legal costs in attending directions hearings in this Court in order for a hearing date to be allocated. I also take into account that if this matter does not settle prior to hearing and either party is dissatisfied with the result the appeal from either Court will go to the Court of Appeal.

42. Justice is best served between the parties if these proceedings remain in the District Court, where Ms Plum will not lose her hearing date. It is my view that in these circumstances, the State of NSW has not shown sufficient reason to transfer these proceedings from the District Court to this Court.

43. The result is that the plaintiff’s notice of motion filed 21 August 2015 is dismissed.

44. Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant’s costs as agreed or assessed on an ordinary basis.

The Court orders

(1)   The plaintiff’s notice of motion filed 21 August 2015 is dismissed.

(2)   The plaintiff is to pay the defendant’s costs as agreed or assessed on an ordinary basis.

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Decision last updated: 27 October 2015