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)

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] HCATrans 398
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Supreme Court of Victoria concerning a claim for damages for nervous shock. The appellants, Mr. Stuart and Ms. Kirkland, were the parents of the deceased, Mr. Veenstra, who had committed suicide. The respondents, Mr. and Ms. Veenstra, were the parents of the deceased and sought to recover damages from the appellants, who were police officers, alleging that the officers' negligent conduct in failing to prevent their son's suicide caused them to suffer psychiatric injury.

The central legal issue before the High Court was whether the police officers owed a duty of care to the deceased's parents to prevent the deceased from taking his own life. This involved considering the scope of the duty of care owed by police officers in circumstances where they are aware of a person's suicidal intentions and the principles governing the recovery of damages for psychiatric injury in Australia, particularly in the context of suicide.

The High Court, by majority, held that the police officers did not owe a duty of care to the deceased's parents. The Court reasoned that while police officers may owe a duty of care to persons in their custody or control, or to persons who are in a position of vulnerability and require protection, this duty did not extend to preventing a mentally competent adult from taking their own life, even if the police were aware of the risk. The majority distinguished the present case from situations where a duty of care might arise, such as where police conduct creates or exacerbates a danger. The Court affirmed that the law is reluctant to impose a duty of care that would require individuals to prevent others from harming themselves, particularly when the person is an adult capable of making their own decisions.

The appeal was allowed, and the orders of the Supreme Court of Victoria were set aside.

Orders