Stuart & Anor v Kirkland-Veenstra & Anor

[2008] HCATrans 398

[2008] HCATrans 398

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M39 of 2008

B e t w e e n -

DAVID STUART

First Appellant

ANTHONY WOOLCOCK

Second Appellant

and

TANIA KIRKLAND‑VEENSTRA

First Respondent

STATE OF VICTORIA

Second Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 4 DECEMBER 2008, AT 9.59 AM

(Continued from 3/12/08)

Copyright in the High Court of Australia

FRENCH CJ:   Yes, Mr Kennan.

MR KENNAN:   Thank you, your Honour.  Your Honour, I want to turn to the question of the interpretation of section 10(1) in the light of section 4(2).  We raise in our written submissions the point that when section 4(2) is looked at it, we say, deals with – 4(2)(a):

people with a mental disorder are given the best possible care and treatment appropriate to their needs in the least possible restrictive environment –

and 4(2)(b) speaks of:

in providing for the care and treatment –

and we say that that section is really directed to the conditions in which people are receiving care and treatment rather than to the protective element of section 10(1).  But if we are wrong about that, we would say that section 4(2)(b), insofar as it refers to the least possible intrusive manner and the liberty of patients and interference with their rights and privacy being kept to a minimum, ought not to be seen to fetter in any significant way the duty to apprehend that we say exists under section 10 because section 10 itself obviously by its terms envisages apprehension and being taken for assessment, and then assessment being made, if necessary, whether or not the person agrees to the assessment, and then potentially involuntary treatment.  So it is our submission that section 4(2) is not a fetter on the powers in section 10.

In relation to the duty of care we say that the duty arises here because under the terms of the Act the police have power to arrest for the purposes of getting the person assessed by a medical practitioner.  The interaction between the members of the police force and persons who require urgent protection and assessment because they are suicidal and appear to be mentally ill, we say that that interaction creates relationships of control and vulnerability between police officers and mentally ill and suicidal individuals and the totality of that gives rise to a duty of care.

We also point to the fact that the power in section 10 is for the apprehension of a very small and defined class, that is, people who appear to be mentally ill and people who are suicidal.  If I could take the Court to what was said by his Honour Justice Gummow in Crimmins, which is in the respondent’s list of authorities I think behind tab 4.  At paragraph 159 his Honour said this:

To determine the manner of interaction between a particular statute and the common law of negligence, it is necessary to comprehend the legislative scheme.  The starting point will commonly lie, as in the present appeal, in the terms of the statute and a determination of the scope of its operation.  It obscures rather than illuminates the scheme established by the legislature to posit a common law duty of care and then determine whether the existence of that duty has been negatived by the statute, or other factors.  Such reasoning may fail to clearly elucidate the interaction between the common law and statute.  This lack of clarity will afford decision‑makers, in both the judicial and legislative branches of government, little guidance, in particular where, as here, the statute establishes relationships, conduct or other subject matter which are not previously known to the common law and whose origins lie wholly within the four walls of the statute.

We say that is the circumstance, with respect, in this case, that the relationship that is created by section 10 between the police officers and the person who appears to be mentally ill and suicidal is a relationship that falls – origins really rely and fall within the four walls of the statute in this case.  If I could also refer, while I am referring to Crimmins, for convenience to what his Honour Justice Hayne said at paragraph 234 where, when considering whether or not there was an inconsistency in the posited common law duty and the statutory scheme, his Honour said at paragraph 234 this:

This is not a case, as the House of Lords held Bedfordshire to be, where to hold that a common law duty of care exists would cut across the statutory scheme, so far as it provided for safety in the stevedoring industry.  On the contrary, had a claim such as the present been brought during the existence of the Authority, and upheld, it might well have encouraged a more energetic attention by the Authority to its statutory powers and functions than appears to have occurred.

We say that if it is said that ‑ ‑ ‑

HAYNE J:   Yes, I think you will find that the running head may have misled you, Mr Kennan.  That is in the reasons of Justice Kirby.

MR KENNAN:   I am sorry, your Honour, it is.

HEYDON J:   Do you withdraw that submission?

MR KENNAN:   I do not, your Honour, and I am grateful for your Honour’s intervention because I was rapidly trying to wonder whether I should apologise to Justice Hayne.

HAYNE J:   Good luck, Mr Kennan, good luck.

GUMMOW J:   Justice Hayne and I dissented in Crimmins.

MR KENNAN:   Yes.

GUMMOW J:   We were not subscribing to paragraph 234.

MR KENNAN:   If I can attempt to recover, the point I was wanting to make was that if it can be said that the imposition of common law duty has any impact on the statutory obligations, if it were to be the case that there is a more energetic attention to the plight of the suicidal person, then we would say that is not a reason for not holding a common law duty.

GUMMOW J:   No, but there is an issue that arises in a way and that is, this is on the assumption that the statute itself does not give rise to an action for breach of statutory duty.

MR KENNAN:   Yes.

GUMMOW J:   We seem to assume that, and then we somehow say, well, nevertheless the law of negligence operates.

MR KENNAN:   Well, in our submission, that would not be a peculiar situation, your Honour.  The law of negligence can have a common law duty sitting beside what the statute has created by reason of the relationships between the individuals concerned that the statute creates.  Can I put it this way.  The existence of a statutory duty is not to be seen, we would say, as a precondition to the finding of a common law duty in the context of the interpretation of section 10 and the other provisions of the Act.

HAYNE J:   Given that section 10 might also be engaged in cases of threat of serious injury to a third party, does your submission go so far as to say that the police officer owes a duty to the person who may be apprehended as well also as to the third person whose serious injury, serious bodily harm, to whom is in contemplation?

MR KENNAN:   It may do, your Honour, but that does not arise for determination on the facts of this case.

HAYNE J:   Of course it does not, but it seems to me that it is an issue that is presented by the approach your argument embraces.

MR KENNAN:   Yes, your Honour.

HAYNE J:   At the moment it is not evident to me how you would stop the analysis at a point of saying, yes, there is a duty of care, but it is only to the person who is to be subject to apprehension.  It is not a duty that would extend to an identified third party who is the object of the threat of serious harm.  Now, that then does take you off into areas of coherence, does it not, and makes the analogy with the policing cases rather more pressing against you?

MR KENNAN:   Well, I do not think it takes us off in terms of coherence in the sense that there is a conflict in the duties owed to persons who may be injured by the person who is not apprehended.  It is not like the position in Sullivan where there was a clear conflict because the scheme of the Act was designed to – and I think the paramount intention was the design to protect children who may be the subject of sexual abuse and there was effectively a mandatory reporting system.  The parents who were suspected of sexual abuse and cleared sued alleging a duty of care by the investigators.

The Court there said, well, in those circumstances, where the target of the statute in terms of protection is the children, it is inconsistent to have a common law duty that spells out a duty in terms of the people who are suspected of the abuse and that would therefore be inconsistent.  In this case, we would say that there is no inconsistency if the scope of the duty extends to other persons who may be physically harmed by the person who is not apprehended or taken for assessment.

HAYNE J:   The inconsistency or problem of coherence I refer to is internal.  You have a duty to the person who is the subject of possible apprehension.  You have a duty to the subject of the threat of harm.  Well, there is a set of conundrums to resolve.

MR KENNAN:   Your Honour, we would say in relation to that that they are in parallel, they are not perpendicular, that the protection of the person who is suicidal has the same identity of interest in that sense by reason of the, if he or she is protected by apprehension and assessment, that, by definition, it would seem to us then any person who is at risk of harm from that person would be similarly protected, that is, it is resolved by apprehension.  The matter was also referred to in the point that I think your Honour has made.  It was referred to in Presland and it might be convenient if I could take the Court now to Presland, which is in the appellant’s list of authorities behind tab 9.

HEYDON J:   Just while we are pausing, you maintain, do you, that there is still a triable issue, as it were, in relation to whether the police officers were in breach of duty, assuming a duty is found?

MR KENNAN:   Yes.  It was at that point the trial was interrupted.

HEYDON J:   You formulated, if my note is correct, which it may not be, the relevant duty as being to take reasonable steps to prevent him from foreseeable harm at his hands and take him for assessment by a registered medical practitioner?

MR KENNAN:   Yes, your Honour.

HEYDON J:   That sounds to me like a duty of strict liability, unless you are prepared to say that a reasonable step might be to do nothing, as per Mr Justice Mason’s analysis in Wyong v Shirt.

MR KENNAN:   Your Honour, I think what I said was that there is a duty to take reasonable steps, including, if necessary, apprehension to prevent foreseeable harm and the scope of the duty extended to apprehension and taking a person to a medical practitioner for assessment.

HEYDON J:   So it is possible then that a reasonable step might be to do nothing?

MR KENNAN:   Yes, your Honour, or do something that falls short of apprehension.

HEYDON J:   And in this case it may be that what they actually did, which was to talk to him for some time and press him on various points without success, was reasonable and it is possible that nothing – it would not be your case, but it is possible that nothing more need be done?

MR KENNAN:   That is so, your Honour.  I do not think it was ever put at the trial level or at the Court of Appeal level that there was not an issue to be tried on breach and that we would say that what the jury would have to determine was whether what the defendants had done or not done they have to determine the facts and then they would have to apply to those facts to see what the duty was to see if they have failed to take the care which a reasonable person in their position would have done.

FRENCH CJ:   It is not a duty to apprehend, it is a duty to consider whether to apprehend?

MR KENNAN:   It is a duty to take reasonable steps to prevent foreseeable harm to a person who they find appears to be mentally ill and suicidal and the scope of that duty extends to apprehension and take for assessment.

FRENCH CJ:   You mean can be discharged by apprehension?

MR KENNAN:   Yes, your Honour.

GUMMOW J:   But need not be.

FRENCH CJ:   They could believe him and leave him alone when he says, “I’m not going to do it”?

MR KENNAN:   They may or in another ‑ ‑ ‑

FRENCH CJ:   That is an argument for the jury, you would say, on the question of breach?

MR KENNAN:   In another hypothetical case he may say, “Well, my doctor lives next door.  I’ll ring him up and he comes around to see me immediately”.  In that case the police may argue, well, there is no need in that circumstance to apprehend him and take him to a psychiatric hospital.

GUMMOW J:   Is this expressed as a duty to take reasonable care in exercising the statutory power of apprehension?

MR KENNAN:   No, your Honour, a duty to take reasonable steps to prevent foreseeable harm, including suicide, and the scope of the duty includes apprehension and taking him to a medical practitioner.

FRENCH CJ:   The scope of the duty does not include apprehension.  The duty may be discharged by apprehension.

MR KENNAN:   Yes.

FRENCH CJ:   I think that is an important distinction, is it not, otherwise it becomes strict liability if the duty is apprehension?

MR KENNAN:   Yes.

GUMMOW J:   And it becomes an action for breach of statutory duty, it seems to me.

MR KENNAN:   Yes.

HAYNE J:   But the consequence of that interchange, Mr Kennan, may be, may it not, that the duty you assert is a duty on police officers generally to take reasonable care to protect persons from self harm?

MR KENNAN:   No, your Honour.

HAYNE J:   Where is the middle ground?  How do you say it is not an action for breach of statutory duty, it is not an action that there was an obligation to exercise the power under section 10 and that gives me a cause of action?  Where is the middle ground?

MR KENNAN:   The middle ground is in relation to the distinguishing factor from police officers generally.  It is where they have the enlivening power in section 10, that is, they see a person who appears to be mentally ill and is suicidal and they then are in a situation where they then have the power to apprehend him and get him assessed and they then must consider what steps they should reasonably take in those circumstances because they then have a duty, because they have the control and the capacity, to prevent him in the immediate future committing suicide and self harming, and taking him to a medical practitioner for assessment.

HAYNE J:   But there is only one ball on the table, exercise of the statutory power, is there not?  There is no other course that is open for relevant consideration in this case, is there?

MR KENNAN:   Your Honour, they have that certainly as a statutory power.  If as a result of discussions with him and exercising under the heading of the statutory power, they could call a CAT team.  They could take other steps that might be thought to be reasonable steps in discharging their duty to prevent him from harming himself because they are in the situation where they have the power to apprehend him and take him to a psychiatric hospital, but it may be as a matter of practicality, as the defendants would no doubt argue if this trial were to go ahead, that they gave consideration to these matters and following discussions, they reached a different conclusion or that, in another hypothetical case, intermediate arrangements might be made that it was a reasonable discharge of their duty to protect him against self harm.

It may be that in a lot of cases the only reasonable response was apprehension and taking him for assessment, but it only arises, we say – the circumstances are narrow.  It only arises when police officers are confronted with a section 10 situation.  It is not a general duty to rescue.  We would say also it would be odd if this power was conferred by the legislature and there be no duty.

HAYNE J:   What is the oddity about that?  Legislatures that want to impose duties do, police officers shall.

MR KENNAN:   That there would be no common law duty, that they are given this power to protect people who are at risk of self‑harm and who appear to be mentally ill.  We say it is entirely consistent with that that there would be a common law duty that they exercise reasonable steps to prevent foreseeable harm to that person.

HAYNE J:   At root, I suspect, Mr Kennan, there is an assumption about autonomy which underpins the submission and the submission seems to proceed from the assumption that somebody contemplating suicide cannot have made a rational decision to that effect and must be stopped.  Now, that may be right, it may be wrong, but it seems to me that is the root premise that is underpinning the proposition.

MR KENNAN:   Can I deal with that, if I may, by firstly referring to Presland and then taking the Court to what was said about autonomy and suicide in Reeves?  Presland was a case which involved the duty of psychiatrists and detention of a forensic patient and the decision was made to release the forensic patient who then killed – murdered somebody and was found to be not guilty by reason of insanity and was then detained for 18 months as a forensic patient in consequence of the homicide.  He sued for the period of time, the loss caused to him, by his detention as a forensic patient subsequent to the homicide and so it was not a case of a third party suing for damage that he had done or, indeed, him suing for physical harm to himself.  At page 118 at paragraph 367 in what I think is Justice Santow’s – I am being ultra careful, your Honour – given the dates it could not have been Justice Kirby.  What his Honour said there is:

I would answer that question in the negative for these reasons.  First, there is no statutory indication that the psychiatrist’s duty of care extends beyond the person’s own protection from serious physical harm or, were action brought by an injured third party, serious physical harm to that party at the hands of the person not detained –

He goes on at paragraph 369 to say:

That 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 were negligent.  But it is not necessary to decide that question here –

So that was an instance where they were contemplating the possibility of a duty extending to third parties.  Then at paragraph 286 his Honour Justice Sheller said this:

Had the plaintiff in the event not killed Ms Laws but injured himself in an attempted suicide, and sued the defendants for damages, the defence that the act of attempted suicide was voluntary may not have succeeded, for reason that the defendants’ negligence foreseeably resulted in an increased risk of injury to the plaintiff and that risk had eventuated.  The defendants’ conduct had materially contributed to that injury whether or not other factors, and particularly the plaintiff’s voluntary act, had also contributed to its occurrence.

Justice Spigelman, who dissented, found that the scope of the duty did indeed extend to the plaintiff’s claim but the other judges did not.  Justice Spigelman did say at paragraph 41 in relation to the possibility of distortion of the statutory duty this:

There may be circumstances in which the possibility of defensive medicine can unduly impinge on the performance of the statutory duty by, to use one of the formulations (set out at 29[21] supra), distorting the focus of the process.  However, in the statutory scheme here under consideration, the number of times a decision to detain must be reviewed, culminating in a decision by a magistrate, indicates that this is not likely to be a problem in the present context.

What we say is Presland is a case that discusses the possibility of the duty extending where a person is released on the harm done to third parties but the scope of the duty did not go to the claim that was made in that case in relation to his subsequent detention as a consequence of his subsequent homicidal act.

Then I wanted to take the Court to what was said about autonomy and suicide in Reeves which is in the appellant’s list of authorities.  It is behind tab 13.  This was a case of a prisoner in police custody who hung himself from a cell door and whilst Lord Hoffmann said it was that there was evidence that the prison service had long been aware that prisoners were more usually or likely to attempt suicidal self‑injury and were aware of those risks, he said at page 368, after referring in the middle of paragraph F, to an argument that:

If he wants to take his life, that is his business.  He is a responsible human being and should accept the intended consequences of his acts without blaming anyone else.

Lord Hoffman then goes in the last paragraph on the page to say:

My Lords, I can understand this argument, although I do not agree with it.  It is not, however, the position taken by the commissioner.  He accepts that he owed a duty of care to Mr Lynch to take reasonable care to prevent him from  committing suicide.  Mr Lynch could not rely on a duty owed to some other hypothetical prisoner who was of unsound mind.

Then at the top of page 369 Lord Hoffmann went on to say:

The duty, as I have said, is a very unusual one, arising from the complete control which the police or prison authorities have over the prisoner, combined with the special danger of people in prison taking their own lives.

Then if I could take the Court to what Lord Hope said at page ‑ ‑ ‑

HAYNE J:   Just before you depart from Lord Hoffmann, all this is in the context of a debate about causation and how you identify questions of causation having regard to the nature of the norm that is being enforced.  I would have thought what his Lordship says at 368, letters C to D, is not unimportant to the way the argument develops, but we will no doubt all read it for ourselves anyway.

MR KENNAN:   Yes, your Honour, and it was also a case, I think I am correct in saying, also was concerned with contributory negligence.

HAYNE J:   Yes.

GUMMOW J:   Yes.

HAYNE J:   Sorry, you were taking us to Lord Hope?

MR KENNAN:   Yes, your Honour.  At page 381 at B:

It might then be said that he had voluntarily assumed the risk of injury.  But that is not this case.  The deceased did to himself the very thing that the commissioner was under a duty to take reasonable care to prevent while he remained in his custody.  It is true that he deliberately exploited the situation which had been created by the commissioner’s negligence.  But that was the thing which the commissioner was under a duty to prevent, as it was the foreseeable consequence of his acting negligently.

We say that whilst suicide is a voluntary action, the courts recognise that in certain situations there can still be a duty to prevent it and they have recognised not just in Reeves, but I also think in this Court in Howard v Jarvis the duty of police to take care for the physical welfare of prisoners.  We say that whilst in this case the person under consideration is not a prisoner, there is an analogy because they have that level of control over him in terms of apprehension.  We say that it is a duty of care sitting alongside the provisions in the statute that is consistent with the statute and the obligations in the statute and that is so if the duty of care extends to third persons who may be harmed by the suicidal person subject to causation and those other factors being established.

GUMMOW J:   Looking back at that passage in Lord Hoffmann at 368, letters C to D, for us I think in this Court we have to bear in mind what Sir Owen Dixon said – and Justice Chernov referred to this – in Smith v Leurs 70 CLR 256 at 261 to 262. The burden of what Sir Owen Dixon is saying is that there is a general rule that would not involve liability. You have to find something that can be described as a special relation; a parent and child would be an example.

MR KENNAN:   Yes.

GUMMOW J:   The parent might well owe a duty to see that the child is not suicidal.  But the special relation here comes out of the statute, does it not?

MR KENNAN:   It does, your Honour, and it may also be said that courts have recognised the special relationship between the gaoler, whether it be a prison authority or the police, and a prisoner, and ‑ ‑ ‑

HAYNE J:   We looked at that in, I think it is, Bujdoso recently, I think, relatively recently.

MR KENNAN:   We say this does not fall in on the literal terms of it to an established category, and it is a novel situation, which is why we say that it is we either succeed or fail on the terms of this statute.  That is where, with respect, we say it probably starts and ends and we say that it is a special situation by reason of the terms of the statute.  It is a unique provision insofar as it is patently directed towards preventing people from committing suicide as far as possible.

HAYNE J:   Well, it is a form of provision that apparently is very common in the US.  I think you find it in most US states.  I do not pretend to have looked exhaustively, but I could not identify quickly any claim against police officers for failing to implement the statutory regimes that seem to have some similarities with these.  Rather, the focus in the US in suicide cases recently seems to have been on the relationship between educational authorities and students and the nature of the special relationship Smith v Leurs area of discourse.

MR KENNAN:   Yes.  Well, we have not been able to identify any US case directly on point in this context, your Honour, but we do not shy away from the proposition that this is, however, a very particular relationship that is established and it is clearly the intent of the legislation and the section that police be given this power for the purpose of preventing a suicide of a person who does appear to be mentally ill by, if necessary, apprehending him and taking him for assessment.  It is a limited power only in that respect but it is a critical power, we would say.  Obviously the Parliament has recognised suicide is a major problem and has recognised that intervention, as the evidence was here led before the Court, that intervention in these situations is very often effective.  In fact, I think Professor De Leo said he actually never lost a patient being treated for suicidal conditions. 

FRENCH CJ:   Would that have gone to causation rather than exists a duty?

MR KENNAN:   It might have, your Honour, but that being so, the Court, we say with respect, must give attention to the consequences of what we say is this special relationship and it is clearly defined, it is narrow in its compass in terms of the preconditions which enliven it and the extent of the officer’s duty goes at its widest no further than apprehension and taking the person for assessment, but in the apprehending the person they have the power in this case - there were two armed policemen - they have the power to prevent immediate suicide and while they are taking the person to assessment it is reasonable to suggest that they also have the complete power and control during that period to prevent suicide and then once the person is assessed it may be said, “by a registered medical practitioner”, then all the reasonable steps that can be taken are taken.

But, having said that it is limited and narrow and clearly defined does not detract from the proposition that it is very important and what we are dealing with here is a lifesaving function.  We say that having regard to the special relationship and the importance of the – there can hardly be a more important function than to save someone’s life who appears to be suicidal - has recently attempted or is likely to attempt suicide – it is reasonable and consistent with the terms of the statute and other common law duties to say that there is a common law duty on the part of the police, once the circumstances of section 10 are enlivened, to impose a duty of care on the police officers.

We say that the police cases which go to issues of policy that my learned friends have referred to, such as Smith and Hill and Brooks where they say it was contrary to policy to find a common law duty of care, those cases are all concerned with a conflict that arises because the police are investigating crime and the court has said, in general terms, that to impose a duty to take reasonable care with respect to a witness or someone else they come across in the reasonable investigation of a crime would cut across their public duty in investigating the crime and would lead to possibly a less than robust approach in the investigation of crime and therefore there was a public policy reason for not imposing a common law duty.

GUMMOW J:   Are not those cases applying – in saying that, are they not looking at the third step in the Caparo system?

MR KENNAN:   Yes, I think they are, probably, your Honour.  We say those factors do not apply here, in any event, but certainly there are other cases such as Rigby where I think they fired gas canisters at a building without making sure there was fire‑fighting equipment there and in Rigby a common law duty was found - to have taken reasonable care in those circumstances; Knightley, one of the other cases mentioned in the written submissions, another English case, which involved the police supervising another police officer, I think, in a traffic situation where a common law duty was found; in the Victorian case of Zalewski where police were called to a house and shot a person a common law duty was found and in Horvath, which we refer to in our authorities, common law duty was found in respect of a policeman in the design, supervision and conduct of a raid.

So we just say that there are a number of police cases where a common law duty of care is found and we say that the police cases do not present a bar to us unless it can be said that there is an inconsistency in the duty that we are contending for with the other police duties and in the focus of the Mental Health Act we say that does not arise.

We say in terms, of course, of reasonable foreseeability that the risk that he would harm himself and take his own life was certainly reasonably foreseeable and that the police officers had the level of control that we have described by having the power to apprehend him, having the power to prevent him while he was under apprehension to harm himself and then getting him assessed and he, insofar as vulnerability is relevant, was, we say, a vulnerable person, not vulnerable in the sense that he was vulnerable as a result of damage that a defendant might inflict on a plaintiff, but vulnerable by the fact that he was suicidal and they having control over him.

We say that there is no policy reason as to why the duty of care should not be imposed.  Nothing was put to the court in terms of distortion of police resources or other matters of that sort of character that would lead to a conclusion that to impose a duty of care would distort police resources and I do not understand that to be a matter that is strenuously argued by my learned friends.  But what my learned friends did argue is that there is a difficulty here with imposing a duty because the police are then faced with walking a tightrope as to whether or not to apprehend or not apprehend and they would say, as I understand it, the considerations of liberty.

We say that it is really not much of a tightrope because what is in balance here is, on the one hand, the apprehension of a person who appears to be mentally ill and is suicidal with the risk of suicide against the inconvenience of being taken by the police for assessment by a medical practitioner as soon as possible.  We say that is a really easy choice to take.  It is not a fine line and it is not a tightrope.  On one side of the ledger there is the threat of a person self‑harming and suiciding, on the other side of the ledger there is being taken by apprehension as soon as possible for assessment by a medical practitioner and we would have said that that ought to be in the ordinary course of human conduct an easy choice to make, not one that is finely balanced.

We would also say that indeed there is a provision in the Act, section 122, concerning immunity from suit.  That says that:

No civil or criminal proceeding lies against any person for anything done in good faith and with reasonable care in reliance on any authority –

given under the Act.  We say that the existence of that section does, to some extent, contemplate that there may be duties of care arising as a result of the relationships created by the Act.

HEYDON J:   That could not apply directly to section 10, could it?  A police officer grappling with section 10 is not relying on any authority or document given or made in accordance with the requirements of the Act.  You might be relying on a power conferred by section 10 but that is not really an authority made in accordance with the requirements of the Act, is it?

MR KENNAN:   Certainly not a document, your Honour, but certainly the power of apprehension is in accordance with the terms of the Act.

HEYDON J:   The power is not made in accordance with the requirements of the Act.  It just exists under the Act.  Section 122 seems to contemplate, as it were, some separate thing independently of the Act, an authority or a document.  That authority or document has to be given in accordance with the requirements of the Act and if the person acts on it “in good faith and with reasonable care” there is a defence.  I may be wrong.  Maybe I am construing section 122 wrongly.  I do not see it as meshing in with section 10.

MR KENNAN:   It may be in this case a fine line, your Honour, because if there was an issue in relation to section 10 then it may be said that section 122 applies because they were exercising a power that was given by the Act and, indeed, it might be said, on one view, required by the Act.

HEYDON J:   But it was not given in accordance with the requirements of this Act.  It was given by the Act.

MR KENNAN:   If the requirements of the Act – if that phrase is interpreted to exclude authority given by the terms of the Act, then your Honour is undoubtedly correct.

HEYDON J:   Your argument can rest on – is it section 123 of the ‑ ‑ ‑

MR KENNAN:   Police Regulations.

HEYDON J:   Yes.  The point you are trying to make can rest on that, can it not, independently of section 122 of this Act?

MR KENNAN:   Well, it can, your Honour, because the police regulation is a general provision relating to the transfer of liability to the State generally, whereas this section relates to actions under this Act.  That was the point I was trying to make.  So we say that the Court of Appeal was correct in reaching its decision.  It was correct to say that the appellants had entered the field as they had come across the deceased who we say was obviously in the act of committing suicide.  We take issue with our learned friends about this because, as we said yesterday, he was in the car, the hose had been attached to the exhaust pipe and the hose was going into the car and he was writing a note which they said, and the evidence later demonstrated, appeared to be a suicide note, and all he had to do was to wind up the window and turn the engine on. 

If one looks at preparatory acts to suicide, that is really a long way down the track.  It is not as remote as getting into the car in the first place, putting the hose into the car and driving to the spot.  He is there, he has got to the location and all he has to do was to turn the engine on.  They observed that he was depressed, as the Court of Appeal noted, and the President was correct when he said that the case did not involve a choice between competing interests or demands.  There were no real competing interests or demands here.  The interest was that the interest of protecting the deceased from suicide and there were no other competing or conflicting interests at stake.

We would say that a duty therefore ought to apply and, really, the appellant’s arguments come very close to saying, well, in this case there should be an immunity because, we would say, the facts of this case are so strong in terms of imposing a duty of care in the facts of this case that if a duty does not exist here the police effectively have an immunity. 

I should also say in relation to Sullivan, Sullivan was concerned, as I said, with whether or not there were conflicting duties to the children who were the primary people to be protected by the Act, and the persons who were suspected of abusing them, and the Court made it clear in Sullivan that it was only concerned with deciding the issue as to whether or not there was a duty to the persons who had been suspected of abuse.  They expressly did not deal with whether or not there would have been a common law duty to the children sitting alongside the Act.  Sullivan is only authority for the proposition that there was no common law authority to the parents, there being a conflict.

We would say finally that indeed it is consistent with this Act that there be a common law duty because Parliament has enacted section 10 to protected potential and imminent suicides and to prolong life and it obviously is a section designed to deal with preventable risks of suicide.  We say that that responsibility ought not to be able to be abdicated by having police officers who have the power to deal with it being able to walk away, even if the engine is running, as was postulated in argument yesterday.  Even if the engine was running, the windows were fogging up, can it really reasonably be said that there would not be a duty in those circumstances to intervene and use the powers that they have in section 10?

We say the answer to that is that there should be a duty and, indeed, the facts of this case are closer to rather than further away from that extreme position, that is, he was there, he had the hose in the car, all he had to do was to turn the engine on.  We say it cannot be, in our submission, the correct position that there is no common law duty and the common law says that there is no duty in these circumstances and police, despite the fact that Parliament has given them the power to deal with the situation, can simply walk away from a situation where they are watching a person committing suicide in circumstances where they have the specific power to interrupt and prevent it and to save a person’s life.  Unless there is any other questions, I think that completes the matters we wanted to put.

FRENCH CJ:   Thank you, Mr Kennan.  Now, is Mr Wheelahan seeking to exercise any right of reply?

MR WHEELAHAN:   No, if the Court pleases.

FRENCH CJ:   Thank you, Mr Wheelahan.  Yes, Mr Ruskin.

MR RUSKIN:   We have only a few short matters.  First, in respect to entering the field, we say that the expression “into the field” which comes from Pyrenees comes from a completely different context where the entering of the field in this case occurred where the control had been exercised.  Because there had been an inspection, there had been an exercise of the power to write letters to advise and in this case the statute is quite a different structure where the engagement of the power does not even occur until it is triggered by the subjective belief.

The second matter is in respect to the extreme case, which is the note upon which our friend ended, we ask the Court to look at a short passage in Brooks where the court looked at the concept of the extreme case.  If the Court would be kind enough to look at Brooks which is, I think, the first authority.  Brooks was a bad case.  Brooks was an extreme case where there had been a racist view, or racist conduct by police relative to their dealings with the proposed plaintiff.  The point that the court comes to is really at paragraphs 33 and 34.  That is at page 1511 in the judgment of Lord Steyn, and he says this:

That brings me to the three critical alleged duties –

and those three duties of care were duties to take reasonable steps to assess whether he was a victim – they appear at 1501.  The three surviving duties were to:

“(1)   take reasonable steps to assess whether [Mr Brooks] was a victim of crime . . . 

“(2)   take reasonable steps to afford [Mr Brooks] protection, assistance and support . . . 

“(3)   afford reasonable weight to the account –

Those were the three duties.  What the court said at 33 was:

It is realistic and fair to pose the question whether the three surviving duties of care can arguably be said to be untouched by the core principle in Hill’s case.  In my view the three alleged duties are undoubtedly inextricably bound up with the police function of investigating crime –

and he gives examples of that –

It is quite impossible to separate this alleged duty from the police function of investigating crime.  The same is, however, true of the other two pleaded duties.  If the core principle in Hill’s case stands, as it must, these pleaded duties of care cannot survive.

Here is the key passage:

It is unnecessary in this case to try to imagine cases of outrageous negligence by the police, unprotected by specific torts, which could fall beyond the reach of the principle in Hill’s case.  It would be unwise to try to predict accurately what unusual cases could conceivably arise.  I certainly do not say that they could not arise.  But such exceptional cases on the margins of the principle in Hill’s case will have to be considered and determined if and when they occur.

GUMMOW J:   This is yet another House of Lords case of a strike‑out application, is it not?

MR RUSKIN:   Yes, indeed, your Honour.  So we say it is quite a false reasoning to look at the extreme case and therefore justify a duty, any more than it would be in, for example, the barrister’s immunity cases.  If you had a barrister who on his feet was egregiously careless as a result of which someone went to gaol for three years or whatever it might be, that would not be the reasoning by which to impose a duty simply because you can think of an extreme case.

The third matter is really the formulation of the duty.  We submit that the formulation of the duty does really have the effect of converting “may” into “must” in respect of section 10 and it really is a matter of construction.  We simply point out to the Court two other sections of section 10.  Section 10(4) uses the word “must” in the very same section.  So section 10(1) says, “A member of the police force may apprehend”.  By the time you get to section 10(4):

A member of the police force must as soon as practicable after apprehending a person under sub‑section (1) arrange an examination –

And further on, a medical health practitioner may assess.  So if it really was ‑ ‑ ‑

FRENCH CJ:   Well, that is “may examine” is it not?

MR RUSKIN:   Yes, “may examine”.

FRENCH CJ:   You are looking at the reprint that was applicable in 1999?

MR RUSKIN:   Perhaps I had better look at the right one.  Yes, our point really is to contrast 10(1) with 10(4), and perhaps 10(5), where the legislation easily uses the word “must” when it wants to and not when it does not want to.  Your Honours, the point about section 122, we respectfully adopt what Justice Heydon said in argument.  There is reference in the Act to authorised people and that comes from section 96.  This may be what this is directed towards.  Section 96 refers to an “authorized psychiatrist”, and section 106 refers to an “authorised officer”.  So there are clearly persons who act with authority and it is in that context that section 122 – and we should say, subsequently the Act was amended to refer to such things as authorised transportation.  So far as section 123 is concerned, the point we made yesterday is true enough.  The liability is transferred but you have to endure a trial and all the expense of that and the determination of the facts before you get as policemen any transfer.

HAYNE J:   Just back on the authority point, 9(4), as it stood at the relevant time, used the language of authority.

MR RUSKIN:   Yes.

HAYNE J:   The question of recommendation is sufficient authority for various steps, in effect, transport.

MR RUSKIN:   Yes, indeed, your Honour.  We say these are fine‑line decisions.  They are not fine‑line decisions if you take the philosophical view, and we respectfully say that is what it is, that the President took and our friends put in argument, that if you are in the slightest doubt you just apprehend, then if you have a philosophical view you always apprehend there is not a fine line, but that is not what the Act says.  Can we second lastly add helpfully to the conundrums that Justice Hayne referred to about the ‑ ‑ ‑

HAYNE J:   You are meant to solve them, not add to them, Mr Ruskin.

MR RUSKIN:   No, your Honour, that is for this Court to enjoy but the helpful adding was this, that not only is there a duty to the public but there is, of course, duty to the close loved relatives of the public, in accordance with Gifford.  Finally, on the question of the Zalewski Case, this was considered in Klein and we might, if we could, ask the Court to look at State of New South Wales v Klein.  It is No 15 in our authorities.  That was a shooting case, in other words, factually closer to Zalewski than this case.  The police shoot Mr Klein in circumstances where he is posing a serious danger to others and so there is then a claim.  The first plaintiff, the mother of the deceased, was in the vicinity and so forth.

The Court does look at Zalewski and makes the following observations.  They did not find the duty.  Zalewski is a long time ago.  It predates Sullivan v Moody and it was really in the context of police immunity and at 23, looking at the earlier judgment, the Court of Appeal of New South Wales said:

It would seem that Hidden J was particularly impressed by the thought from Zalewski’s case that “immunity” would depend upon a careful examination of the facts in a particular case.”  That may be right in situations where there is a case coming within the exceptional cases or assumptions of responsibility cases, but otherwise the core principle in Hill’s case is so strong that the hopelessness of the plaintiffs’ case is plain no matter what the facts.

Then at 25:

Mr Marshall submitted that in the light of Cran –

Cran was the case which is in our authorities where they failed to let him out in time and he fails to sue successfully and fails in the duty of care –

and in the light of the High Court’s decision in Tame v New South Wales (2002) 211 CLR 317 and Sullivan’s case, Zalewski’s case could not be considered to be of any current authority.  In my view there is a lot of strength in this submission.  One would not say that Zalewski was wrongly decided on its 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.

Those are our submissions in reply.

FRENCH CJ:   Thank you, Mr Ruskin.  We thank counsel for their assistance.  The Court will reserve its decision.  The Court will adjourn to 9.30 tomorrow here and 9.30 in Sydney tomorrow.

AT 11.06 AM THE MATTER WAS ADJOURNED