Stuart & Anor v Kirkland-Veenstra & Anor

[2008] HCATrans 397

[2008] HCATrans 397

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 WEDNESDAY, 3 DECEMBER 2008, AT 11.51 AM

Copyright in the High Court of Australia

MR J. RUSKIN, QC:   If the Court pleases, in this appeal I appear with, MS R.J. ORR, for the appellants.  (instructed by Victorian Government Solicitor)

MR J.H. KENNAN, SC:   If the Court pleases, I appear with MR P.T. VOUT and MR P. HALLEY, for the first respondent.  (instructed by Slater & Gordon - Melbourne)

MR M.F. WHEELAHAN, SC:   If the Court pleases, I appear with my learned friend, MR M.D. RUSH, for the second respondent.  (instructed by Deacons Lawyers - Melbourne)

FRENCH CJ:   Yes, Mr Ruskin.

MR RUSKIN:   Thank you, your Honour.  The central issue in this appeal is whether the Court of Appeal erred in holding that two police officers had a duty to take reasonable care to protect a member of the public, Mr Veenstra, from the risk of harm in the form of suicide.  The duty found by the Court of Appeal was said to arise in the context of or facilitated by the Mental Health Act 1986, and in considering the question of whether the duty of care arose, we point out first, four features: (1) the duty that the Court of Appeal found is an entirely novel duty; (2) this was not a case where the person to whom the duty was said to be owed was in custody; (3) there was no extraordinary conduct by the police, as that might be understood from cases such as Knightley ‑ and I will say something about that in one moment ‑ and the fourth is that normally, there is no duty of care to prevent a person harming himself or herself.

The question of extraordinary conduct where duties have been found in the cases we have referred to just in the footnote of our submissions at footnote 12, one of which is called Knightley [1982] WLR, and the other a case called Rigby [1985] WLR.  Knightley was a case which involved a traffic situation where the policeman or the inspector failed to close a tunnel and caused an accident when directing another policeman to drive on the wrong side of the road, and Rigby was a case where, in the course of an operation, the police were involved in throwing a canister into a building, so there were positive acts of an unusual kind which were said to give rise to the duty of care.

Now, here we contend that there is no duty and in that respect we say that the duty of care that is postulated is one which would be inconsistent with the general duties of policemen, and specifically not consonant with the framework of the Mental Health Act.  In general terms, as the Court has dealt with in previous cases, the imposition of a private law duty on police is seen to be not consonant with the public duties of police, and that is because police are involved in lots of duties to the public in terms of how they make their decisions, how they balance interests, how they focus on what they are meant to do, which is seen to be fettered or constrained if in a particular situation, absent custody, you impose a private duty of the kind that the Court found here.

In our submissions we refer to the well‑known case of Tame in which there were particular features, and the Court will recall that was the case where the policeman got the reading wrong, that is to say, Tame was the case in which the policeman wrongly recorded a reading of something like .14, which was the reading of one driver which he wrongly attributed to the person who turned out to be the plaintiff, as a result of which he suffered an acute psychiatric reaction.

Of course, one of the issues was the question of the particular difficulty with foreseeability and someone having a breakdown of the kind suffered by this particular plaintiff.  But the passage that we rely on in particular is that which is at 261 in that judgment, probably from the judgment of Justice Hayne, and it talks in terms on this question of constraint ‑ ‑ ‑

HEYDON J:   It cannot be 261.

FRENCH CJ:   That is paragraph number, is it?

MR RUSKIN:   Yes, paragraph number, I am sorry.  First of all, could we ask the Court very briefly to look at paragraph 231, which is the joint judgment of your Honours Justices Gummow and Kirby?  At 231 the Court said this:

It is unlikely that an investigating police officer owes a duty of care to a person whose conduct is under investigation.  Such a duty would appear to be inconsistent with the police officer’s duty, ultimately based in the statutory framework and anterior common law by which the relevant police service is established and maintained, fully to investigate the conduct in question.

Then at 261 the reference to constraint - I am sorry, I have the wrong reference.  It is in fact at 298 to 299, which appears at 418 and is from the judgment of your Honour Justice Hayne:

Police officers investigating possible contravention of the law do not owe a common law duty to take reasonable care to prevent psychiatric injury –

hence the reference to psychiatric injury –

to those whose conduct they are investigating.  Their duties lie elsewhere and to find a duty of care to those whom they investigate would conflict with those other duties.

Then there is the reference to Mrs Tame committing no offence.  Jumping a couple of lines:

In undertaking that task they were bound by numerous obligations and restraints, both statutory and common law.  To impose upon them a further duty to take reasonable care to avoid psychiatric injury to a person whose conduct was being investigated would constrain their proper performance of those other duties.

CRENNAN J:   So we go to the statutory framework as a starting point and – I do not want to interrupt your flow, but I did have a question about the statutory framework.  Do you want me to ask you that now or later?

MR RUSKIN:   I would be very pleased if you asked it now, your Honour.

CRENNAN J:   If you go to appeal book 308, paragraph 64 of the Chief Justice’s judgment, you will see that her Honour says there:

It may be inferred from s 10 of the Mental Health Act that Parliament’s view was that to attempt suicide is to be mentally ill.

Then if you look at appeal book 328, paragraph 119 of the judgment of the President, you will see a similar statement there:

Self‑evidently, s 10 is concerned with altogether different circumstances, involving a person of unsound mind who ex hypothesi is unable to make rational judgments in his/her own interests and who therefore needs protection against the risk –

My question in relation to the statutory framework is whether, with great respect, that is right, having regard to the definition of “mentally ill” and how that then relates to the conditions in section 10. I am asking about the relationship in terms of statutory framework, section 8 and section 10 of the Mental Health Act.

MR RUSKIN:   What we say about that is that – again, with respect – that is not the correct construction of the Act, indeed it is the opposite because section 10 says:

(1)A member of the police force may apprehend a person who appears to be mentally ill if –

there are reasonable grounds for believing an attempt at suicide.  So it requires for the condition to be engaged or for the power to be engaged that the person appear mentally ill.  So it is quite the opposite.  It does not mean that if you attempt suicide, ex hypothesi you are mentally ill, therefore you become apprehended.  Those words have work to do and you do not have the power – you cannot engage the power unless you first form the view that the person appears to be mentally ill and mentally ill is referred to in 8(1A):

a person is mentally ill if he or she has a mental illness, being a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory.

KIEFEL J:   May I interrupt just there?  Is that definition taken from a diagnostic manual?  Is it some sort of international ‑ ‑ ‑

MR RUSKIN:   I am not sure of the answer and we will find out for your Honour ‑ ‑ ‑

KIEFEL J:   I have interrupted you.  It is not a matter of great importance.

MR RUSKIN:   Not at all, but if you have a look at 10(1A), it is important to note that it says:

A member of the police force is not required . . . to exercise any clinical judgment as to whether a person is mentally ill but may exercise the powers conferred by this section if, having regard to the behaviour and appearance of the person, the person appears to . . . be mentally ill.

Now, what that indicates is as follows:  To the policemen on the job, as they were in this case, they first must form the non‑clinical view that the person is mentally ill within the meaning of section 8(1A), namely they subjectively, in a non‑clinical sense, form the view that the person has a condition characterised by “significant disturbance of thought, mood, perception or memory”.

Now, the point that Justice Crennan raised is critical to one of the aspects of the appeal, namely that we submit that in coming to the view that they did, the Court of Appeal reversed the position in the statute.  They had a view – the majority that is – that once the person attempts suicide, ex hypothesi, they are mentally ill, therefore the power is engaged when it is in fact quite the reverse.

It must anticipate there will be persons who do not appear to be mentally ill, notwithstanding that they might be seen to be contemplating or attempting suicide.  That is this case.  All the cross‑examination and the transcript, which I will not take you to at the moment, has suggested that the police came upon Mr Veenstra in the car with the tube, the window down, and engaged in conversation with him and asked him lots of questions and he gave answers and to each question that was put to the police by learned counsel they maintained the view that so far as the tests they had to follow were concerned, Mr Veenstra did not appear to have significant disturbance of thought, mood, perception or memory.

Accordingly, we submit that the statute – and we will come to the framework in a moment – militates against any duty of care because it does require finely balanced, subjective views in which there are competing considerations or conflicting obligations.

HAYNE J:   Be it so, let it be assumed, though, that in the circumstances of a particular case which you say are far removed from this, that police officers have before them material which would reasonably lead them to conclude that the person was exhibiting disturbances of the kind that the Act mentions, your case has to be, does it not, that even in those cases there is no duty?

MR RUSKIN:   That is so, your Honour.

HAYNE J:   Does that not demonstrate that focusing upon whether the conditions for engagement of section 10 were present or absent diverts attention from whether there is a duty?

MR RUSKIN:   No, it is central to the question of whether the duty as articulated by the Court of Appeal can sit happily with the framework of the Act because the framework of the Act requires in making up your mind about whether to exercise the power you are being driven in contrary directions.

HAYNE J:   But your proposition cannot be, surely, that there is no duty of care to exercise powers under section 10 when the conditions for the exercise of the power are not met. Your case has to be, does it not, that even if contrary, you say, to the facts of the particular case, but even if the conditions for the exercise of power under section 10 were met there was no common law duty of care?

MR RUSKIN:   Yes, that is our case.

HAYNE J:   How do you get to that proposition?

MR RUSKIN:   Because we look at issues of the police cases, the imposing of duties of care on police and we look at public policy considerations and, in particular, and central to the strength or otherwise of our proposition is that the Court of Appeal decide that the police in this case, once they enter this car park and once they appreciated there was a tube in the car were not exercising police powers but were exercising safety powers and the duty of care which might be difficult to impose, having regard to imposing duties of care on police in the way they discharged they duties, was cast aside as a distraction because here you are dealing with people who are no longer policemen.

If they are policemen, and even if, as your Honour Justice Hayne says, it is the clearest case that the person is acting without perception of thought and memory, they do not owe a duty of care and we say that because there are public policy considerations which must, together with the police cases which militate against that and, just as you can take a case, as your Honour did, from one side of a spectrum you can take it from the other side of the spectrum when they confront somebody sitting on a park bench and he is looking sad, do they have a duty of care to decide whether to engage the power?  They either do, and then it depends on the facts, or they do not, and the question whether they do, in the question the engagement falls to be determined by reference to public policy considerations and the police cases.

HAYNE J:   What is the duty of care that you say the majority of the Court of Appeal has found to exist?

MR RUSKIN:   It was found that they have a duty of care – it is perhaps articulated clearly by the learned President when he said that it was the duty to protect him from the risk of – yes, it is at 99 of the judgment of the President, and it is in these terms – two lines down from paragraph 99 at 320 of the appeal book:

The duty which the respondents owed Mr Veenstra, and the duty which they owed ‑

concentrating on that and the appellant –

were duties to take reasonable care to protect them against reasonably foreseeable risks of harm – in the case of Mr Veenstra, the risk of his suicide –

That is the duty, and so far as the learned Chief Justice was concerned, she said it was a duty not to expose him to harm.  It is not quite as precisely defined, with respect.  There are references to a duty of care having arisen and the fact that he could not adequately safeguard himself from harm ‑ ‑ ‑

CRENNAN J:   Was the action about a duty of care to the widow as distinct from duty of care to Mr Veenstra?

MR RUSKIN:   Yes, the argument about the widow was not – and is not pursued here, but it really follows from – I think the case of Gifford, and it goes like this.  If there is a duty of care to Mr Veenstra, if there were, then there would be a duty of care to his loved ones or people you should reasonably anticipate would be affected if you are negligent, and at 17 – that is page 292 of the judgment, it says – her Honour, the learned Chief Justice says this:

At the commencement of the hearing, counsel for the appellant conceded that the duty of care alleged to be owed to the appellant could not exist –

that is, to the widow –

without a finding that there was a duty owed to Mr Veenstra.

Now, in Gifford – if that is the correct name ‑ ‑ ‑

GUMMOW J:   What is the citation of ‑ ‑ ‑

MR RUSKIN:   We will find it in one moment.  Gifford is a High Court case about ‑ ‑ ‑

HAYNE J:   Gifford v Strang Patrick, is it not?

MR RUSKIN:   Thank you, your Honour, and it is about these circumstances.  Where the employer owes a duty of care to the employee and he must have in mind that if he injures or kills the employee then children and family may suffer shock or may be adversely affected, and Gifford is at (2003) 214 CLR 269. It is a case in which once that proposition was put so clearly, the respondent in the Court of Appeal could not really pursue a notion that there were – there had to be some extra special relationship between Mrs Veenstra, the second respondent here, and the policeman, because there would not have been a special relationship absent Mr Veenstra. So for the purpose of this appeal, if there were a duty to Mr Veenstra, the police should have had in mind those loved ones and close relatives who would be inexorably affected by a breach of that duty.

HEYDON J:   Mr Ruskin, at paragraph 19 on page 292, it is said that the duty is a “common law duty arising in the context of the statutory powers”.  On page 306 in the first line, it says:

It is a common law duty that arises independently of statute.

MR RUSKIN:   Yes.

HEYDON J:   If it arises independently of statute, it must have existed in 1985.

MR RUSKIN:   Yes.

HEYDON J:   What is the position as you understand it in terms of the ‑ ‑ ‑

MR RUSKIN:   As I understand it, the President certainly used the concept of “facilitated by” and that expression ‑ ‑ ‑

FRENCH CJ:   This was the Chief Justice’s judgment, I think, was it not?

MR RUSKIN:   That may be right.  Thank you, your Honour.  That is at 97.  First of all, there is a reference to:

In a case such as the present, as McHugh J pointed out in Graham Barclay Oysters, the statutory power is not the source of the duty of care but ‘may be an important factor in finding that a duty of care was owed’. 

Then, at 98:

The submission for the appellant was put on –

I am sorry – at the bottom.  I will keep reading:

In this sense, the existence of the statutory power is ‘relied on to support the existence of a common law duty of care’.  Or, as Gummow J said in Pyrenees, the existence of relevant statutory powers can ‘facilitate the existence of the common law duty of care’. 

This is from the President:

The submission for the appellant was put on precisely that basis. The existence of the statutory power in s 10 . . . was relied on to support the existence of common law duties of care, independent of the statute ‑ ‑ ‑

HEYDON J:   Is that not a contradiction in terms?

MR RUSKIN:   Yes.  As we ‑ ‑ ‑

GUMMOW J:   Somehow “may apprehend” in section 10 becomes “must”.

MR RUSKIN:   Yes.  As best we understood it, this was not a case about breach of statutory duty.  This was not a case which was going to get up without the Act.  If there were no Mental Health Act, nobody argued there would be some common law duty uninformed by the section.  So the best that the appellant in the Court of Appeal had was to say, “You can ‑ ‑ ‑

GUMMOW J:   If there were not the statute, there would be an assault, would there not, I suppose?

MR RUSKIN:   Yes, it would be, unless – there was no crime, your Honour. 

GUMMOW J:   No, but I mean to apprehend the person.

MR RUSKIN:   Yes, would be an assault, because you would not be – unless you were arresting the person, then it would not be.

GUMMOW J:   That is why the police need section 10, actually.

MR RUSKIN:   Yes. 

HAYNE J:   But what became of the case at trial that the alternative course for the police was to call the CAT team and wait?  Did that fade away?

MR RUSKIN:   Yes.  Well, the way it worked was this.  There was a question – a couple of questions which were asked, and I can take you to them, this way.  When, after a bit of sword fighting, Mr Hore‑Lacy said – having said a number of times, “You must have known this” and “You must have known that”, and they said, “No, no.  We were convinced” – to use the words of the police – “that he was clear of thought and mind and perception and so forth”, it was said, “Well, why couldn’t you have just talked to him and made him wait and maybe called his wife on the side?” and all that sort of thing.  They said, “We had no power to do this.  We had no power to hold him there for a CAT team, which might have taken half an hour, unless we arrested him.  We couldn’t apprehend him”.  The circle was made.  So no case was put that without the Act, nonetheless you had some duty of care.  It was not pleaded.  It was not run, and of course it did not get to the jury so no final addresses occurred and it was not run in the Court of Appeal.

FRENCH CJ:   So when the Chief Justice said it is a common law duty that arises independently of statute, are we to take that as nothing more than an elliptical way of saying that it is not a statutory duty?

MR RUSKIN:   Yes.

FRENCH CJ:   That is all?

MR RUSKIN:   That is all. 

HAYNE J:   The fact that this was a jury trial is not unimportant.  Had this case not been taken away from the jury, it would have been necessary to direct a jury.

MR RUSKIN:   Yes.

HAYNE J:   That invites the closest attention to what form those directions would have taken.

MR RUSKIN:   Yes.

HAYNE J:   Presumably, question one for the jury would have been:  was the negligence of defendant one or defendant two, as the case may be, a cause of the injury sustained by?

MR RUSKIN:   Yes.

HAYNE J:   Framed in that way invites attention to what the trial judge tells the jury is asserted to be the negligence because, by hypothesis, the trial judge has decided as a matter of law that there is a duty of care.  In turn, that directs attention to the assertions of breach, what were said to be the breaches that were engaged in this case – because without them, we are talking about duty at a level of abstraction which may, I do not say must, but may be apt to mislead and mislead seriously.

MR RUSKIN:   The breaches were set out at page 12 of the appeal book in the pleading and the cross-examination of the police was directed in various ways to them, but if we have a look at them, at the time of the incident you failed to arrest him.  That is really saying “You did not apprehend him”.  But if you jump down – and do not worry about (b) because that is the manual and for other reasons we would not worry about that – when we get to (d), you failed to thoroughly investigate his mental state.  You failed to ensure that his mental state was assessed by an experienced person.  You failed to read the note because, the Court will remember, he wrote a note and the police said, “What are you doing?’ and he said, “I’m recording my private thoughts” and he said it three times and they asked him and he said, “I’m not giving it to you”.  They said well they could not take it from him.

You failed to get rid of the vacuum hose.  You failed to offer him assistance.  There was not much in that because they certainly did; they invited him to go to a doctor and they would get a doctor and all sorts of things.  They failed to escort him home – not that that would have helped because it happened at home, so that was not going to get very far.  They failed to “treat the incident with sufficient severity”.  That is a bit vague, but it is directed, I suppose, to saying – I am not sure they could ever have gone to the jury saying, “You didn’t take it seriously”.  There were no jokes and there was no ‑ ‑ ‑

HAYNE J:   The case that was going to go to the jury was the defendants did not act.

MR RUSKIN:   Yes.

HAYNE J:   What did the defendants not do? They did not act by engaging section 10.

MR RUSKIN:   Yes.

HAYNE J:   And it is not that they were members of the public; they did not engage section 10 when they could have because they were police officers.

MR RUSKIN:   Yes.

HAYNE J:   That then brings you back to, I would have thought, as the starting point, section 10.

MR RUSKIN:   Yes.

HAYNE J:   The case for the plaintiff becomes that “a police officer may apprehend” is to be given effect in an action for negligence, at least, as if it reads “a police officer must”.

MR RUSKIN:   Yes.

HAYNE J:   If.

MR RUSKIN:   Yes, and to complete what your Honour was saying, it also follows that without the Act there cannot be a duty, even arguably, because you get driven back to the Act.

HAYNE J:   Otherwise it is a general duty to rescue.

MR RUSKIN:   Yes.

HAYNE J:   If that is what is contended for, so be it; let us understand that as the place for debate.  But I did not understand it to be contended for.

MR RUSKIN:   It is not that; it is really a duty that is informed, facilitated, enlivened, given life by, the Act, which must be read in the way your Honour Justice Hayne said.  It is in the context of the Act that we look at the question of what we call, and what Justice Chernov found and what Justice Santow found in another case called Presland – and I will take you to a very short passage of that – the competing considerations or the inconsistent obligations which tend against finding that there is a duty of care in the Act.

When we look at the Act, the critical objects are in section 4 and in section 4(2), if the Court be kind enough to look at it, we have this said:

It is the intention of Parliament that the provisions of this Act are to be interpreted and that every function, power, authority, discretion, jurisdiction and duty conferred or imposed by this Act is to be exercised or performed so that –

And then we have the two, if we go to (b):

in providing for the care and treatment of people with a mental disorder and the protection of members of the public any restriction upon the liberty of the patients and other people with a mental disorder and any interference with their rights, privacy, dignity and self-respect are kept to the minimum –

So you have the two competing considerations, and we say inconsistent obligations, when you are addressing a power of apprehension that you have.  On the one hand you have to provide for the care; on the other hand you have to keep interference with privacy and liberty to a minimum.  So you are on the tightrope.  You are on the one hand drawn in one direction and on the other in the other direction.

Now, it is said against us but that provision, subsection, does not apply to the police; it somehow only applies to hospitals or doctors because it uses the word “care” and therefore why would it apply to the police?  Our answer to that is this.  First of all when you go back to (2), which I just took the Court to, it is in very wide terms.  It is “every function, power, authority” and so forth which much embrace the police.  Second, in using the words “in providing for” they are words of wide expression.  They do not say, for example, in giving treatment.  It is “in providing for” and “providing for” means being a corridor or a passageway to the ultimate care, you provide full care. 

Finally, it should be noted that the concept of care – and we have in our submissions found out that “care” means “protection” as well in the Oxford Dictionary – but “care” in this context means contextually because he cannot care for himself.  In other words, the reason the police are called in the first place, if they engage the power of apprehension it is because he cannot care for himself, so of course, it is a police power.

In our friends’ submissions reference is made to the debate in Parliament about this section and the debate is quite instructive about what police are meant to do.  It is referred to at page 6 of the first respondent’s submissions.  If I could just read it to you it is this:

Concerning the role of police, the Second Reading Speech observed that:

“The Government is aware that there is a school of thought that police should not have a role to play in the admission of apparently mentally ill persons.  Nevertheless, it is a fact of life that the police are usually the first to be summoned to some anti‑social incident, and no one else is better trained or equipped to provide the assistance . . .   In an emergency situation where, for example, an apparently mentally ill person . . . is about to commit suicide, the police will have the power to enter any premises without the need for a warrant –

and so forth.  So far from being authority for what our friends say, we say that this makes it clear that it is police qua police who are to engage and exercise the powers.  In the judgment two of the learned judges – that is the Chief Justice and the President – made what we say is an entirely artificial distinction.  In the words of the President – and that is at paragraph 112 of the judgment – the President put it quite clearly from his perspective at 325 of the book.

The special nature of the function conferred on the respondents cannot be emphasised too strongly.  Much reliance was placed by the respondents on . . . Hill v Chief Constable of West Yorkshire.  But, as the Chief Justice has emphasised, this is not a policing case.  This is a case where police officers are the repositories of a statutory power directed not at the investigation and prevention of crime or the maintenance of public order, but at the prevention of suicide or, more accurately, at preventing a mentally ill person from committing suicide.  The particular power is conferred by an Act the first object of which is ‘to provide for the care, treatment and protection of mentally ill people . . .’

So, “No occasion arises” to look at the Hill kind of authority.  Now, it is important to recall in this case the evidence which emerged right at the very beginning of the case and I will simply give you the transcript reference page, but it was at 101 of the appeal book at page 222 of the transcript:

you were on patrol and what that involved and so forth.  You told the jury this at the very end of yesterday; you said:  “patrol duties on the night was that of a crime response unit and myself and Senior Constable Woolcock were responsible for the investigation of crime in the E and D districts.” . . . 

Perhaps you can tell the jury what brought you to the beach carpark.  Why did you go in that area?---Look, the beach carpark is the end of Sunnyside Road, obviously on the water.  We went in that vicinity as a regular patrol looking for vehicles within that area.  We were concerned that there had been complaints of offences such as homosexual activity and offensive behaviour in that area.

So they were discharging their public duties and then they came upon the man and they then engaged consideration of investigating what he was up to.  They did all the things police do.  They very carefully mapped out how they were going to approach the cars and there is reference to the tragic case involving the police who were ambushed in South Yarra all those years ago – Tynan and Eyre.  So all this was part of investigating what was happening in the course of which as policemen they had to make these fine‑line decisions. 

Now, in respect to the way in which the legislation draws you in different directions – this precise legislation – may we ask the Court to look at Hunter because Hunter we have, with respect, a very concise and precise analysis of the legislation in support of the way we seek to argue it.  Hunter (2005) 63 NSWLR 22 is authority No 9. Now, in Hunter ‑ ‑ ‑

HEYDON J:   I do not think we have that; or some of us do not.

MR RUSKIN:   I do apologise.  It is important, so we would like you to look at it.  I do apologise for this.  We thought it was in our authorities at No 9.

HEYDON J:   We have not received any authorities from the appellants at all.

MR RUSKIN:   Again, apologies.  They are here.  While that is being handed out, if I could just remind the Court of the rather unusual facts in Presland.  Presland was a psychiatric patient and he was kept in the hospital and he was discharged.  When he was discharged, he went and shot someone.  He himself suffered psychiatric injury from the fact that he was permitted to go out and shoot someone.  So he sued, saying, “You, the hospital, insofar as this act affects you, had a common law duty”.  It is in relation to what Justice – by majority it was held there was no duty.

On the kind of reasoning I have been submitting to the Court today – and I wanted to take the Court to some passages from Justice Santow.  Would the Court be kind enough to look at paragraph 343 which is at page 112.  What is said here is this – and I am four lines from the end of paragraph 343:

If the duty of care is so extended as to render hospitals and psychiatrists liable for any carelessness that brings about adverse consequences to those affected by those difficult decisions, will this distort the impartiality of that judgment, so made in a detrimentally defensive frame of mind?  That may affect the quality of the decision in either direction, depending on the circumstances.

So this is now leading to the competing considerations.  I would like the Court perhaps to go backwards rather than forwards.  This was set up by what his Honour said the page before – at 110, 336:

there is the question of principle bearing upon the reasonableness of the imposition of a duty of the kind here asserted, or the reasonableness of so extending causal responsibility.  Here the law does make value judgments ‑

and there is a reference to Cole, Cole being the decision about letting people drive off drunk from hotels -

That principle with its normative aspects necessarily underlies consideration of the extent of any duty, and the extent of causal responsibility.  It is connected to the question of coherence in legal principle and values when, as here, we are considering a relatively novel extension of the recognised form of duty of care.  Coherence in values . . . affects the weight to be given to factors such as vulnerability and control as affecting the capacity to make impartial decisions under the Act.  The statutory scheme requires the civil rights of the individual to be accommodated and balanced against the need for restraint of a mentally ill or disturbed person so affording him access to treatment in the interests of both patient and the wider community.  The critical task is to assess whether the person meets the statutory description of a mentally ill or mentally disturbed person and then ensuring that “any interference with their rights, dignity and self‑respect are kept to the minimum -

Then his Honour summarises this, or his conclusions, right towards the end of the case, in two passages – first at 116, 360 is the paragraph.  There is a reference to the very section we are looking at because these sections are around Australia.  At 359 it gives those objects.  This is what his Honour says at 360:

The italicised words –

which are the ones “kept to the minimum” –

reinforce the conclusion that where a medical superintendent is empowered to detain a patient, that empowerment confers the capacity to exercise the discretion, it does not compel its exercise.  One may envisage circumstances where the medical superintendent simply does not have the facilities available to admit the person concerned, or to continue to detain him or her.  More importantly, there are fine judgments required, where opinions may legitimately differ, as to the proper balance between “protecting the civil rights” of those persons and giving those persons “access to appropriate care”.  Here Pt 2 contemplates that access is in fact imposed by compulsory detention or its continuance rather than as a matter of voluntarily choice.  The threat of legal action could readily distort that balance, in either the direction of compulsory detention, or away from compulsory detention, depending on how the litigious threat was perceived.

Finally, if the Court would look at 118 at 367.  His Honour says in terms of duty:

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 . . . 

Moreover, to impose a duty of care in favour of that person with respect to his or her compulsory detention entails that the duty would apply both for carelessly failing to detain or carelessly choosing to detain.  That introduces a distortive influence upon the hospital superintendent’s or psychiatrist’s exercise of his or her statutory discretion in either direction.  The review safeguards offer no ultimate solution.  At each point in the review process, depending on the circumstances, there will be a fear of legal action for failing to detain or failing to release; the discretion would be prone to being exercised in “a detrimentally defensive frame of mind” –

reference to Hill and Crimmins –

That distortive effect is also an example of where the imposition of duty of care, so extended, introduces an incoherence to the law by being inconsistent with the impartial exercise of the discretion under the Act.

Finally, as I said before, but this really is final, 377 in summing‑up his Honour says this, jumping five lines from 377:

Nor do I consider that any such extended duty can be derived from, or properly accommodated to, the relevant statutory scheme.  Rather I consider that to impose such an extended duty for loss not derived from serious physical injury would be inappropriate by reason of the purpose and scope of the statutory scheme, distorting the impartiality of the exercise of discretion under the Act.  It would risk distorting its focus by promoting a bias towards detention, when that should be an impartial decision, taken only when fully justified, if not a last resort.

Moreover, if exercise of the discretion not to detain gave rise to legal liability in negligence at the suit of the person not detained, it must logically follow that in other circumstances legal liability in negligence would attach to the decision to detain compulsorily.  That would further distort the exercise of the discretion in a way which would be contrary to the purpose of the statutory scheme.

This is the two‑way street.  Now, it is revealed this distortion quite profoundly in the judgment of the President and it links back to what Justice Crennan said at the beginning of the discussion about how you interpret the section.  If we ask the Court to look at what the learned President said at 326 of the book you will see that his Honour sees none of this dilemma, and he sees none of the dilemma because this is all about saving people at whatever cost.  That is really what he says.

The power conferred by section 10 is a power of a different kind. It is directed at safeguarding mentally ill people against the gravest risks. It is a health and safety power, not a policing power. If the imposition of a duty of care had the effect of making police officers more likely to intervene in circumstances such as the present – and here we emphasise – whether or not it involved the exercise of section 10, it could hardly be said to be contrary to the public interest. He further noted, which is one of our complaints, that if you did that you could not be sued. His Honour says – and I will take you to that because it is convenient, at 103 since we are close to that, his Honour says this:

In the present case, the respondents had the legal authority to exercise direct, immediate and complete control over the risk that Mr Veenstra might, in his current frame of mind, commit suicide –

control over that risk –

Clothed with the authority of s 10, they were in a position to do what no other person could do without risking civil liability for assault or false imprisonment, namely, to apprehend Mr Veenstra and, for that purpose, to ‘use such force as may be reasonably necessary’.

Well, with respect, that is not right.  We respectfully rely on what Justice Santow said, namely, that it is a two‑way street.  If you jump one way, you are sued because you did not detain.  If you jump the other way, you are sued for false imprisonment.

That might be a difficult case but the question that goes to these public policy issues of police resources and distortion of discretion and constraint are about the risk of being sued, not whether you are going to win or lose the case.

FRENCH CJ:   Is there a general statutory provision somewhere in relation to police providing protection for good faith and exercise of at least their policing powers?

MR RUSKIN:   Yes, your Honour. Section 123 of the Police Regulation Act 1958 says that if police undertake their task – we have it in tab 21 of our folder. I am going to read from there. It says this ‑ ‑ ‑

HAYNE J:   It is immunity if you act in good faith and the immunity attaches to the State, not the individual?

MR RUSKIN:   Yes, that is right.  That means that if you act negligently but in good faith under this Act liability is transferred to the police, but it does not ‑ ‑ ‑

HAYNE J:   To the State.

MR RUSKIN:   To the State, I am sorry.  It does not, of course – and this case is an example par excellence – stop you being exposed to litigation, and these police are exposed to litigation and, as the Court sees, the State of Victoria is separately represented.  There has been no indemnity for what they may face in a trial.  The way this works in practice is that at the end of the trial, in the defence in this case, my clients, the police, have pleaded that if (which is denied) there was a duty and negligence and so forth, there was an acting in good faith and there should be a transfer to the State of Victoria, well, that will be a matter which would have been for the judge at the end of the trial.  But to answer your Honour the learned Chief Justice’s question, there is ultimately, if all the billiard balls go into the hole the right way, the police get out of it alive.

FRENCH CJ:   So that the immunity provision, in any event, does not have any impact on the question of whether there is a duty of care?

MR RUSKIN:   No.

FRENCH CJ:   That might be a convenient time.

MR RUSKIN:   Thank you very much, your Honour.

FRENCH CJ:   The Court will adjourn until 2.15 pm.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.13 PM:

FRENCH CJ:    Yes, Mr Ruskin.

MR RUSKIN:    Thank you, your Honour.  Two short matters and that is that in answer to Justice Kiefel’s question about the definition of mental illness, or how it came about, the second reading speech says this:

The definition has been developed from the broad community consultations and in consultation with specialist groups including the Royal Australian and New Zealand College of Psychiatrists, the Ministerial Advisory Group on Mental Health, the Office of the Public Advocate and the Guardianship and Administration Board.

We can give the Court that piece of paper.

KIEFEL J:   Thank you.

MR RUSKIN:   The second matter was, I told the Court just before lunch that in Presland the majority did not find a duty.  I was wrong.  Justice Sheller did find the duty but on grounds of a most conventional kind and that is the grounds which he notes at 285 of the judgment and I will just read it to your Honours without even asking your Honours to look at it.

I have no difficulty in accepting that [the doctor], and through him [the hospital], owed the plaintiff a general duty of care of the sort described in the passage from Rogers v Whitaker –

In other words, he was in custody in a hospital, doctors have duties to patients, end of the story.  His Honour found, however, no breach because he found it completely unacceptable that the facts in that case could give rise to a breach where you sue for what you have done and raised questions of that kind. 

Now, your Honours, finally on this question of inconsistency and competing considerations which derives perhaps initially from Sullivan v Moody, which was the case about the doctors with duties to the children on the one hand and did they have duties to the people who were the subject of the report, that is, the parents on the other, and there were conflicting considerations, therefore no duty, we invite the Court to consider what Justice Chernov said in this case in the minority on this question of inconsistency.  That appears at 126 through to 128 of the judgment, that is at 332.  The only lines I bring to the Court’s attention are these:

Thus, it seems clear enough that, in deciding whether to exercise the discretion under the Act, the police officer must do so in the context of a number of constraints. Relevantly, the Act obliges the member of the police to make a ‘fine line’ decision in that regard, requiring the officer to determine not only whether the requirements of s 10(1) are made out, but also to take into account the competing policy considerations expressed in the Act . . .

In those circumstances, the imposition of a common law duty on such a police officer – being something for which the appellant contends – would amount to what the majority of the Court of Appeal in Hunter Area Health Service v Presland described as a ‘distorting’ influence on the discretionary power created by the Act and would be inconsistent with the abovementioned aspect of the legislative scheme. In my opinion, the imposition of a common law duty of care on a police officer who must decide whether to exercise the statutory discretion under s 10(1) would create a situation of the kind identified by Spigelman CJ in Presland.  In that case, his Honour noted the circumstances where a common law duty would be inconsistent with the legislative scheme or would be otherwise inappropriate –

and he sets out the areas of inappropriateness; would it “distort [the] focus”, would it create police acting in a “detrimentally defensive frame of mind”, would it “have a tendency to discourage the due performance”, and may it “undermine the effectiveness of the duties”, and we invite the Court to ‑ ‑ ‑

HAYNE J:   If there is a tension of that kind, and that is a matter for debate, but tension stems from the fact that the asserted duty is a duty to intervene in the affairs of another by protecting that other from that other’s own conduct.

MR RUSKIN:   Yes, and we would add to that, though, your Honour Justice Hayne, the inbuilt tension in the competing considerations which inform exactly what your Honour has said.

KIEFEL J:   But these arise from the statute.  We are not here in the area that some of the police cases – we will call them that – are concerned with where there are operational characteristics.  This is an area which really stands apart from those cases.  You do not urge those sorts of public policy considerations, do you?

MR RUSKIN:   We do.  We say that public policy would be against the imposition of a duty of care on a policeman notwithstanding the considerations of the Act.  We primarily rely on the ‑ ‑ ‑

KIEFEL J:   But what public policy aspect?  I mean, I just do not quite understand why you need to go beyond the framework of the Act to say that the duty as such may be narrower and, in addition to that, there are factors which influence it which inhibit or inhibit the extent to which police officers might act, but what are the wider public policy considerations?

MR RUSKIN:   The wider public policy considerations are of the kind that are referred to in Tame and, in particular, two cases in England, Smith and Brooks, that is, the public policy considerations that say, when you are looking at a duty like this which is supposed to be facilitated by the Act, remember that we are dealing with policemen and, as your Honour Justice Kiefel says, but they are in a particular situation, that is, they are involved with the exercise or consideration of exercise of the powers.  The passage we wanted to rely on in that context comes from Smith.  We will deal very succinctly, we hope, with public policy, but Smith is called, really, Van Colle and another v Chief Constable; Smith v Chief Constable and that is in our authorities, I think, No 14.

That was a case where there was the problem that the police should have known – or did know perhaps – that somebody was being stalked by a particular person and they did not take adequate steps to save the person from harm to be inflicted by that person.  So did they have a duty of care, in other words, as police to prevent what was foreseeable harm by either warning or capturing or doing something to the person who did the damage?  At paragraph 130 of that judgment there is a particular passage which we would invite the Court to bear in mind when looking at this case, looking at questions of policy.  At 130 the court said this:

Thirdly, although it is tempting to regard the police’s function from which this duty is said to spring as something different from that of “investigating crime” (the function which prompted the Hill principle) – as, perhaps, the exercise of a protective function – this really would be a false dichotomy.  Not only are the threats themselves criminal offences which, like other reported crimes, fall to be investigated but, as I indicated earlier, the police have to investigate many other risks of physical violence which come to their attention.

So the way we put the policy is that it is a broad principle which gives comfort in finding that it is unlikely that it would be appropriate to found a duty of care in this case.

KIEFEL J:   But it does not seem to be any more than to say that if the persons exercising the power are police, you approach this in a different way.  Is that what you are suggesting?

MR RUSKIN:   Yes, that you bear in mind the policy considerations that generally attach to police.

KIEFEL J:   Is not the critical question what they are doing rather than the capacity in which they are doing it?

MR RUSKIN:   Certainly that is a critical question but they are fairly indivisible because when we look at the question of fine line and we look at who they are, it is important to remember – and this is emphasised by the Act – they are exercising non‑clinical judgment and they are exercising their knowledge of police activities and so to the extent that the law has turned its face by way of policy against imposing a duty of care on a policeman doing police duties, whether it be under this Act, we would say, or not.

KIEFEL J:   I understand that it would be necessary to distinguish them in relation to the questions that they have to answer and posed with the situation from, say, a clinician.  And it needs to be understood that the police are called upon to exercise this particular power or duty, whichever it is called, because, as you said at the outset, they happened to be – the police are called upon in relation to problems which arise in this connection.  So it is pre‑empting and that puts them in the picture.  But beyond that I do not see what you derive from their capacity as police officers in terms of any operational question or any other aspect which might properly inform a public policy consideration.

MR RUSKIN:   Except that when you look at the questions of policy that flow through from Hill, and in Smith and in Brooks, it seems that the courts say there is a relevance in the fact that police are discharging public duties, qua policemen and that it would constrain their operations and divert their resources and all those considerations.

KIEFEL J:   Yes, but they are not present.  That is what I am saying of this case.  None of those features that you would normally associate with policing are here because they are exercising a particular role.

MR RUSKIN:   Yes, except certainly the question of detrimentally defensive attitude is absolutely in this case.  You see, if you put somebody on the tightrope as between intervening and not intervening the policy consideration against a duty of care, namely, that they will undertake it in a detrimentally defensive frame of mind, is a relevant consideration on top of ‑ ‑ ‑

KIEFEL J:   To anyone exercising the power.

MR RUSKIN:   To anyone exercising the power.  Yes, we respectfully accept that, be it a psychiatrist, as in Presland, be it a policeman in this case.

CRENNAN J:   Or you might come at it from the point of view that the police have powers of apprehension for protective custody under the Mental Health Act, also under the Children and Young Persons Act, also I think they have powers under the Health Act in relation to infectious diseases.  So there is a suite of powers that the police have quite distinct from the power to arrest under the Crimes Act.  They are powers to apprehend for protective custody reasons.  So that may be one way in which you look at the policy considerations to which you have been making reference.

MR RUSKIN:   Yes, and if I expand your Honour Justice Crennan’s example.  What would happen in a situation where the police come across a domestic dispute where the actor is perhaps committing an assault or – well, he is committing an assault because he is being dreadful – but he is also exhibiting some sign, perhaps, of distorted thinking?  So which way do they jump?  Do they exercise their power under the Mental Health Act or do they exercise their power under the Crimes Act? 

That is a typical situation which must happen regularly and it is those sorts of policy considerations that would say, why would you have a duty of care, why would you constrain those kinds of decisions, by imposing on a policeman on the spot, in the situation here, a duty of care?  It is only in that respect that we put in the issue of policy.  The policy considerations that generally affect the area were lately identified by the learned judges in Smith and they are best described at paragraphs 76 to 77 of that judgment.  If I could just point that out to the Court, at page 621:

The risk that the application of ordinary delictual principles would tend to inhibit a robust approach in assessing a person as a possible suspect or victim, which Lord Steyn mentioned in the last sentence of the passage that I have quoted from his opinion in Brooks, is directly relevant to cases of the kind of which Smith’s case is an example . . . A robust approach is needed, bearing in mind the interests of both parties and of the whole community.  Not every complaint of this kind is genuine . . . Police work elsewhere may be impeded if the police were required to treat every report from a member of the public that he or she is being threatened –

This is just an example –

as giving rise to a duty of care to take reasonable . . . Some cases will require immediate action than others.  The judgment as to whether any given case is of that character must be left to the police.

The question, going to G:

Who is to judge whether the evidence is apparently credible?  Who is to judge whether the threat is imminent?  These are questions that the police must deal with on the spot.  A robust approach would leave the matter to the judgment of the police officer.  The decision in Brooks adopts this approach, leaving the police free to form their own judgment.  The liability principle says that, if that judgment is challenged, a judge must decide.

Your Honours, the next short matter involved what we say is the view the learned President took of Reeves, which we say was wrong and which distorted the approach his Honour made to the Act.  His Honour, as I have already pointed out, was of the strong view that there is no dilemma at all in the Act and that it just really means when in doubt of any kind, apprehend.  We have pointed out that is not consistent.  It is really at page 327 of the book, at 117 of his Honour’s judgment. 

Reeves was a case in which a prisoner, that is, someone in custody, who was neglected or not looked at properly by the authorities, put his shirt out of the bars of the window and committed suicide.  So it was a suicide case.  In that case his Honour, the President, says this at 118.  He notes the reliance by the respondents, that is, by the police, on Lord Hope’s statement:

It is unusual for a person to be under a duty to take reasonable care to prevent another person doing something to his loss, injury or damage deliberately.  On the whole people are entitled to act as they please . . . As a general rule the common law duty of care is directed towards the prevention of accidents or of injury caused by negligence.

Of course we are dealing with an Act and I appreciate that –

If he is in breach of that duty, his damages may be reduced –

and so forth.  Then his Honour went on to say this.  Lord Hoffman said:

the sound intuition that there is a difference between protecting people against harm caused to them by third parties and protecting them against harm which they inflict upon themselves.  It reflects the individualist philosophy of the common law.  People of full age and sound understanding must look after themselves and take responsibility for their actions.

His Honour says:

The last sentence demonstrates very clearly why nothing said in Reeve has any bearing on the present case.  Their Lordships were there considering the position of a person of sound mind –

With the greatest respect, that is not what their Lordships were considering.  Reeves was decided on the question of control and custody, that is to say, he was a person in control.  There was no question about whether he was of sound mind because on the logic of the reasoning of the learned President, anybody who contemplates suicide is not of sound mind, yet Reeves was a man who did exactly that.  So that was not the critical question in Reeves, but Reeves does say – and that is our authority No 13 – something of interest just on this general question of mental health and it is this.  It really comes from the judgment of Lord Hoffmann.  It is really at page 368, if the Court pleases.  It is down at the bottom at G:

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 he owed a duty of care to Mr Lynch to take reasonable care to prevent him from committing suicide.

Of course, he accepted that because the man was in custody.  His Honour goes on –

Mr Lynch could not rely on a duty owed to some other hypothetical prisoner who was of unsound mind.  The commissioner does not seek [to do so] . . . I think that the commissioner is right not to make this distinction.  The difference between being of sound and unsound mind, while appealing to lawyers who like clear‑cut rules, seems to me inadequate to deal with the complexities of human psychology in the context of the stresses caused by imprisonment.  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.

So the only point we make is that in bolstering the President’s conclusion on Reeves by reference to Reeves, we respectfully submit his Honour was distracted from what that case really said.  The second last point we make is the point that attracted the Court of Appeal in finding the duty and that is they said, the majority, the correct analysis was by reference to the statutory authority cases, that this was a statutory authority type of case, police were in the position of a statutory authority just like in Pyrenees.

We submit that the correct approach is that they are not a statutory authority. I have already referred to the fact that they are individuals. We have referred to section 123 of the Act. The difference is significant because they are ordinary people with fine‑line judgments. They are well away from the kind of statutory authority that we met in Pyrenees or in Crimmins.  It is really just a question of looking at the facts of those cases in the very briefest of compass. 

In Pyrenees, which is with the authorities, but your Honours need not consult it, the facts were these.  The fire authority discovered that there was a defect in a chimney.  The fire authority notified the council.  The council undertook an inspection.  The council advised the then tenant not to use the chimney and to warn others.  The council then wrote a letter about all this and then did nothing else and then there was the fire and there was a duty.  The question of the capacity of the statutory authority to have complete control and time to think and all those things is well away from this case.

There was nothing in the statute in Pyrenees of the competing consideration kind, fine‑line decision kind.  The same with Crimmins.  Crimmins was a case in which the authority was the authority that had all the knowledge of asbestos.  The people that the authority sent out to work had no knowledge of the dangers.

FRENCH CJ:   The statutory authority cases, you would say, are not relevant not because the police are not statutory authorities in some sort of technical taxonomy, but rather because of the nature of the authorities and the nature of the decision‑making which those cases address?

MR RUSKIN:   That is it in a nutshell, your Honour, and in that we rely on what the Court said, even in the context of statutory authorities, in Graham Barclay Oysters where the Court said you look at this salient features test.  You look very particularly at the relationship of the actor and the alleged victim.  You look at the legislation and so forth.  So that is how we put the error in that respect.

When we look at the question of control in this case, which is the next matter, which is control and vulnerability, we submit that the court, particularly the learned Chief Justice and, indeed, with respect, the learned President, confused control with power.  It is quite clear at 63 of the judgment just how the learned Chief Justice characterised this question.  Her Honour said at 63:

the first and second respondents had the power to protect a specific class –

Then at 76, her Honour says this:

In my view, a duty of care arose in this situation.  Upon approaching Mr Veenstra’s car, the police officers became aware of the nature of the situation by observing the tube from the exhaust to the window.  They ascertained he had written a note –

and here is the key –

By the conferral of powers by the Mental Health Act, the purpose of which was to protect the mentally ill from situations such as this, they had control over the situation.  Mr Veenstra was vulnerable –

I will come to vulnerable in a minute.  Now, we note in our authorities the passage from Graham Barclay Oysters which says mere power plus foreseeability does not amount to control, and there was not control here in that sense.  The learned President says the same thing, or words to the same effect, at 103:

In the present case, the respondents had the legal authority to exercise direct, immediate and complete control over the risk . . . Clothed with the authority of s 10, they were in a position to do what no other person could do without risking civil liability . . . namely, to apprehend –

That is not right, with respect.  They did risk civil liability and, of course, they could only exercise the power if it was engaged in accordance with the Act.  In respect to the matter of vulnerability, we point out that the question of vulnerability is very different.  If he is vulnerable, because the police certainly thought he was – when they said he was depressed, he was unhappy, it was a vulnerability of quite a different kind to the vulnerability we meet in cases such as Crimmins where we have all the knowledge, as I said, with the authority and none with the worker, where the worker gets disciplined if he does not go and work there.  Quite different from the cases where the authority that looks after children sends you off to a dreadful foster parent where you are a child, and vulnerability in this sense.

Justice Chernov points out this was a case paradoxically with the real knowledge of what was going to happen was solely with Mr Veenstra.  He knew what he was going to do.  He wrote the note.  He denied all the problems.  So it does not fit nicely, or it does not fit easily within the rubric of vulnerability.

Finally, on the question of control, I mention a case from Canada called Jane Doe, which is in our authorities, and it will be the last case I want to mention on this topic.  Jane Doe is No 10 in our authorities, and it is a case of a peculiar kind where the Canadian court posed a duty of care in these unusual circumstances.  In Canada at this time, in this particular city, there was a person known as the balcony rapist who selected a very discrete area of streets, where there were apartments with balconies, and engaged in serial rape.

The police on the facts knew about this, but they thought it best not to warn women in the actual area because it would – well, their reasoning was he would then go and rape somewhere else.  But the view of the court really was that they used Jane Doe, who ended up being raped, as bait.  In other words, they did not exercise what the court found was a duty to warn and protect and they set her up, as it were.  This really comes from 725 of that judgment where the court said this at the very bottom of 725:

The police were there to wait and watch for an attack to occur.  The women were given no warning and were thereby precluded from taking any steps to protect themselves against such an attack.  Unbeknownst to them they were left completely vulnerable.  When all of these circumstances are taken and considered together, it certainly suggests to me that the women were being used – without their knowledge or consent – as “bait” to attract a predator whose specific identity then was unknown to the police, but whose general and characteristic identity most certainly was.

In those circumstances ‑ ‑ ‑

FRENCH CJ:   Was the duty of that case informed by the charter?

MR RUSKIN:   I am not sure that it was, your Honour.  Yes, there were violations of sections 7 and 15 of the Canadian Charter of Rights and Freedoms.

FRENCH CJ:   Did that feed into the duty of care argument?

MR RUSKIN:   Well, I do not know that it did.  I think they found that it was a common law duty outside and that comes from 737 when, in the middle of the page, the court said this:

The evidence establishes that Det Sgt Cameron clearly had linked the four rapes which preceded Ms Doe’s by the early days of August in 1986, and he and Det Sgt Derry knew that the rapist would continue to attack women until he was stopped.  They knew the rapist was attacking single white women living alone in second and third floor apartments with balconies in the Church/Wellesley area of the City of Toronto.

On the evidence I find the plaintiff has established a private law duty of care.

It “failed utterly” and then goes to breach.  So that seems to be outside the – now of course what we say here is that is a very particular and very peculiar situation well away from this case where all the knowledge and all the setting up of danger flows from conduct by the police.  Quite the opposite to this case, we say.

Now, I should mention, as we have in our authorities, the Canadian case of Hill has recognised, by majority, a tort called a tort of negligent investigation.  That arose from circumstances where some person was negligently investigated in the sense that they did a bodgie line‑up and he got convicted and this was pretty dreadful.  So the majority in that case was persuaded that there should be a duty of care and it really comes from the fact that – if the Court would look at page 152.  The court said ‑ ‑ ‑

FRENCH CJ:   Sorry, which case is this?

MR RUSKIN:   Page 152, if your Honour pleases.

FRENCH CJ:   Which case?

MR RUSKIN:   Sorry, this is Hill v Hamilton, this is No 8.  At 152 they rely on the Anns test, which is the relationship in principle – this is in the middle of 31:

The principle that animates the first stage of the Anns test – to determine whether the relationship is in principle sufficiently close or “proximate” to attract legal liability – governs the nature of considerations that arise at this stage.

Where we here are not persuaded the proximity is as important a factor as that.  Then over the page at 152 the court said – this is really what motivated the court.  At the very bottom of 151:

I note that the existing remedies for wrongful prosecution and conviction are incomplete and may leave a victim of negligent police investigation without legal recourse.  The torts of false arrest, false imprisonment and malicious prosecution do not provide an adequate remedy for negligent acts . . . As the Court of Appeal pointed out, an important category of police conduct with the potential to seriously affect the lives of suspects will go unremedied if a duty of care is not recognized.  This category includes “very poor performance of important police duties” . . . To deny a remedy in tort is, quite literally, to deny justice.

So this was a pretty solid, with respect, expression of simply policy that it is time this happened and in the course of it the court said that the alleged chilling effect, or defensive aspects referred to in Hill, should no longer apply.  On the other hand, there was a strong minority decision which for policy reasons said exactly the opposite.  If we could just take the Court to page 190 where the minority says, just above 139, three lines:

The critical factor, however, and one which, in my view, strongly militates against the recognition of a duty of care is the second one, the interests engaged by the relationship.

Which is a way of saying the fact that they were involved in the business of investigation.  Then across the page to 191, second paragraph:

The enforcement of the criminal law is one of the most important aspects . . . Often, this requires police officers to make decisions that might adversely affect the rights and interests of citizens.

Jumping down to the bottom:

The importance of maintaining the police officer’s authority to make decisions in the public interest that are adverse to certain citizens is underscored in the case of suspects . . . the imposition on the police of a legal duty to take reasonable care not to harm the individual inevitably pulls the police away from targeting that individual as a suspect.

and so forth.  Then at 142, this minority learned judge says at the very bottom:

Rather, my point is that the overly cautious approach that may result from the imposition of conflicting duties would seriously undermine society’s interest in having the police investigate crime and apprehend offenders.

Your Honours, there is one final matter and that is this. In their submissions our learned friends characterised this duty facilitated by the Act as a duty to a specific class or to specific individuals, but they say if it is a duty to the public, then there would unlikely to be a duty of care. As Justice Chernov notes, it is a case about duty to the public at large. You cannot siphon off the words in 10 in quite the way our friends desire to do. So if we may conclude our submissions by just inviting the Court again to look at section 10 of the Act.

CRENNAN J:   The whole division is important in a sense because section 10 is part of a scheme in relation to involuntary patients and detention.

MR RUSKIN:   Yes.  We respectfully accept that.  When you look at 10 itself, it embraces a duty to the public, if there is a duty, because it says this:

A member of the police force may apprehend a person who appears to be mentally ill if the member of the police force has reasonable grounds for believing that‑

(a)the person has recently attempted suicide or attempted to cause serious bodily harm to herself or himself or to some other person; or

(b)the person is likely by act or neglect to attempt suicide or to cause serious bodily harm to herself or himself or to some other person.

So any duty that derives facilitated by this Act is a duty that must embrace the public as well because the next person to sue will be the public who has

been injured by the person who may have had a mental illness.  Unless we can assist the Court further, those are our submissions.

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

MR WHEELAHAN:   Your Honours, generally speaking, the law does not recognise a tortious duty of care owed by a person to go to the aid of another in peril or distress which was not caused by the first person.  The common law allows people to act as the priest and the Levite did and to pass by a person in distress without incurring any civil liability.  For the court to find such a duty or to modify the established position would have, in our submission, a profound effect on the ordinary behaviour of people and the way people conduct themselves in their everyday lives.

In cases such as this, involving the potential exercise of statutory powers under the Mental Health Act, the modification of behaviour takes the form of the distortion of the decision‑making process required by section 10. In this case, we submit that there is nothing about the position of the appellants, the circumstances of the case or the terms of the relevant legislation which impose upon the appellants any greater civil liability than any other member of the public. Rather, the terms of the Mental Health Act and the scheme of the Act suggest that the existence of such a duty is to be denied.  The starting point and perhaps the end point in resolving this appeal in determining whether there was a duty is the terms of the legislation.

There are three pieces of legislation which we submit are irrelevant.  Firstly, the Mental Health Act to which our learned friend Mr Ruskin has taken the Court and in respect of which we wish to make some further observations; second, the Police Regulation Act 1958 and, third, section 463B of the Crimes Act (Vic) 1958. Might we take the Court to the Crimes Act first and we shall hand the Court for the Court’s assistance an unauthorised copy of section 463B.

The relevance of this section is that in the course of our learned friend, Mr Ruskin’s, submissions I think your Honour Justice Gummow suggested that but for section 10 the prevention of a person committing suicide might amount to a battery. We submit in many circumstances section 463B would afford a defence to any person, including police officers, who might take steps which might otherwise amount to a battery to prevent the condition of a suicide. In our submission, 463B is part of the legislative framework to which the Court should have recourse in considering these issues.

Secondly, we turn to the Police Regulation Act (Vic) 1958. The relevant version at the time of these events is version 81, which we have provided the Court. It was the version in force on 22 August 1999. We make the following observations. First, police officers are not themselves creatures of statute, they are individuals. They are therefore different to bodies such as the Stevedoring Industry Finance Committee or the Shire of Singleton. Police officers hold public office and that is evident from the terms of the Police Regulation Act, to which we will now take the Court. 

The scheme of the Act commences with section 8 which empowers the Chief Commissioner to “appoint, promote and transfer” officers and members.  Section 8 draws a distinction between officers and other members of the police force.  That distinction is reinforced by the terms of section 8(2).

Section 11 confers authority on police constables and the authority which is conferred on constables and the duties are both statutory and common law duties.  Section 11 itself picks up the common law duties and imposes those duties on members of the police force other than constables.  Section 13 of the Act makes provision for the taking of an oath and we draw the Court’s attention in particular to section 13(1) which provides that:

Any person appointed to be a member of the force shall not be capable of acting in any way as such member until he has taken and subscribed the oath set forth in Form A of the Second Schedule.

The final part of this Act to which we would wish to take the Court is the Second Schedule which contains the form of oath which police officers must take.  We will not read the form of oath to the Court but we make the observation that the tenor of the oath is to fulfil public – public, not private duties.

The third piece of legislation to which we wish to take the Court is the Mental Health Act and the starting point is section 10. Section 10 requires two jurisdictional facts to exist before the statutory power of apprehension is enlivened. The first jurisdictional fact is the appearance of mental illness. The second jurisdictional fact is that the police officer concerned has reasonable grounds to believe that the person has recently attempted suicide or attempted to cause serious bodily harm to himself or to some other person or the person is likely by act or neglect to attempt suicide or to cause serious bodily harm to herself or himself or to some other person.

In our submission, having regard to the terms of section 10(1A), the appearance of mental illness is a judgment involving a question of fact and degree for the police officer concerned. Having regard to the behaviour and appearance of the person who might be the subject of the exercise of the power, importantly, the police officer is not required to exercise any clinical, one might say, professional judgment. We take the Court to pages 311 and 312 of the appeal book and to paragraphs 75 and 76 of the reasons of her Honour the Chief Justice with whom the learned President agreed. At paragraphs 75 and 76, her Honour identifies the point in time at which the suggested duty of care arose as being, in her Honour’s words, when “the member realises the nature of the situation”. Our learned friend Mr Ruskin took the Court to this passage. Her Honour suggested that that point in time was when the police officers observed the tube from the exhaust going into the window.

Our submission is that that reasoning does in no way address the statutory jurisdictional facts necessary for the exercise of the power under section 10. In our submission, the principal purposes of section 10 of the Act are, firstly, the protection of mentally ill persons, second, the protection of persons to whom mentally ill persons might cause harm and, third, the care of persons who appear to be mentally ill. That care is achieved by the coercive transmission of any such persons to a medical practitioner. That, of course, is the only lawful result of the exercise of the power under section 10. It is convenient at this point, we submit, to turn ‑ ‑ ‑

HEYDON J:   Could I just ask you a question about the example used in paragraph 75.  If a police officer observed someone in the midst of committing suicide in the circumstances described, do you still say there is no duty of care?

MR WHEELAHAN:   We do, your Honour.  Just as no other member of the public would have a duty of care.

HEYDON J:   Assuming you were wrong about that, is there any point of distinction?  I mean, the Chief Justice does not.  She says there is a duty there and there is no point of distinction for less extreme circumstances.  Can you draw any line?

MR WHEELAHAN:   We do not draw any distinction, if your Honour pleases.

HEYDON J:   Well, it would not reflect a great deal of credit on the officer concerned though, would it?

MR WHEELAHAN:   Well, the officer of course has a moral duty and a public duty to take action if the officer honestly believed that action was reasonable or necessary, but that moral duty, or one might call it a professional duty these days, does not translate into a tortious duty.

FRENCH CJ:   If the officer were subject to disciplinary action for taking no steps in that more extreme situation, would that have any impact on the question of whether there was a duty of care?

MR WHEELAHAN:   It may if the court thought that overall policy considerations were relevant in that the prospect of disciplinary action might tend to suggest that the officer was more likely rather than less likely to intervene.

FRENCH CJ:   Yes.  I mean, you spoke of a public duty and a professional duty and so forth and that that immediately links one to the notion of in‑house disciplinary action for failing to discharge that kind of duty.

MR WHEELAHAN:   Yes.

FRENCH CJ:   The question is, does that feed into this debate in any way?

MR WHEELAHAN:   It does to the extent that, from a moral perspective, the failure to take action might not put the officer concerned in high esteem, but it does not follow that there is therefore a tortious duty.

HEYDON J:   Strictly speaking, actually, the example may not fall within section 10. It is not a case of a person having recently attempted suicide. It is not a person who is likely to attempt suicide. It is a person who actually is attempting suicide. If that construction is correct, it is probably just a lapse.

MR WHEELAHAN:   The asphyxiation might be regarded as serious bodily harm at a point prior to death.

HEYDON J:   So that in the middle of it you could say that person has attempted to asphyxiate?

MR WHEELAHAN:   Yes, and cause serious bodily harm to him or herself. We wish to take the Court now to page 300 of the appeal book and paragraph 39 of the reasons of her Honour the Chief Justice. We wish to identify three errors in the majority’s construction of section 10(1) commencing firstly with the reasons at paragraph 39. Her Honour says:

It concerns a specific power vested in a special category of persons to prevent self‑harm of the gravest kind.

In our submission, the section is not concerned solely with persons who are mentally ill and contemplating suicide. Self‑harm is only part of the focus of the section. The prospect of harm to others is also a subject matter of the section. The second error, in our submission, is that in paragraph 39 her Honour the Chief Justice does not recognise that the exercise of the power in section 10 is conditional upon the existence of the jurisdictional facts which we identify. That same error, in our submission, was made by her Honour the Chief Justice at paragraph 44 of her Honour’s reasons. In the third sentence of paragraph 44, which is on page 301 of the appeal book, her Honour said:

Arising from s 10 of the Mental Health Act the police had a direct control to convey him to a hospital –

That reasoning, in our submission, ignores the jurisdictional facts which must exist before any such suggested control exists.  Thirdly, the same error is made, in our submission, by the learned President at appeal book page 322 in paragraph 103, where his Honour said, and these are his Honour’s words:

the respondents had the legal authority to exercise direct, immediate and complete control –

In our submission, his Honour was not, on the evidence, able to make any such finding.  We turn then to some other provisions.

FRENCH CJ:   That would only follow, I suppose, if you infer or if you say that it necessarily follows and the fact that somebody appears to be likely to attempt suicide that they thereby appear to be mentally ill.  That is the subtext there.

MR WHEELAHAN:   Yes, we adopt the submission made by our learned friend, Mr Ruskin, that they are two separate conditions necessary before the power under the section is engaged.  If the legislature had intended suicide to be equated with mental illness, it would have said so in the section.  It actually says the opposite.

HAYNE J:   Well, the power would be conditioned only upon recent attempt or intended attempt.

MR WHEELAHAN:   Yes, we adopt that, if the Court pleases. We wish to turn now to the terms of paragraph 4(2)(b) of the Mental Health Act.  We just wish to make a couple of observations additional to those made by our learned friend, Mr Ruskin.  The Court will see that 4(2)(b) includes, as part of its ambit, powers:

in providing for . . . protection of members of the public –

Now, in our submission, that is something with which section 10 of the Act is directly concerned. The second observation we make is that paragraph (b) ‑ as is the case with many other sections and provisions of the Act – refers to “people with a mental disorder”. “Mental disorder” is defined inclusively in the Act in section 3 as including mental illness. It is on page 4 of the reprint.

FRENCH CJ:   It is a much wider category, I think, in the international diagnostic manual, is it not?

MR WHEELAHAN:   I am not familiar with that publication, your Honour, but “mental disorder” itself is not defined exhaustively in the Act. It is left at large, save that we know that it includes “mental illness”. Now, the term “mental disorder” is used throughout the Act. It is not used in section 10, though. What engages section 10 is the appearance of mental illness.

Now, the appearance of mental illness is not a fact which is exclusive to section 10. There are many other sections of the Act which employ the expression or the concept of appearance of mental illness as the condition for the exercise of a coercive power, and it might be convenient if I just list some of the sections without taking the Court to each of them: section 8(1)(a), section 11(1), section 14(1A), section 15A(1), section 16(1)(b) and section 17(1)(b). What each of those sections have in common is they enable someone to exercise coercive powers in respect of a person who appears to be mentally ill. Now, our submission is that ‑ ‑ ‑

HAYNE J:   But are they all provisions directed to the subject matter of becoming an involuntary patient?

MR WHEELAHAN:   Yes, in some form or another, yes.  So our submission is that one should read the expression “people with a mental disorder” in section 4(2)(b) as including people who either have a mental illness or appear to be mentally ill, otherwise the section would be stripped of much of its utility if it was held to be inapplicable to all those sections of the Act which are concerned with the involuntary admission or treatment of persons who appear to be mentally ill.

HAYNE J:   But what do you get out of any of this, Mr Wheelahan? Assume that you adopt the reading of section 10 that you urge upon us, what is the next step in your argument that connects that with duty or no duty?

MR WHEELAHAN:   There are two steps which I will come to and they are, firstly, section 10 does not arm police officers with a sufficient degree of control such as to attract a duty of care. That is the first point. The second point is that the law should deny the imposition of a duty of care because it is inconsistent not just with section 10 but the scheme of the Act and the considerations which the Act requires a police officer to bring to bear on the decision whether or not to exercise a power under section 10.

The final feature of the Mental Health Act to which we wish to direct the Court’s attention is, taken together, section 96 and section 105.  Section 96 establishes what we would submit is a public office known as the authorised psychiatrist.  There are many coercive powers under the Act such as those existing in section 12(5), section 14, section 37 and sections 40 and 41 which may be exercised by an authorised psychiatrist.  Another public office established by the Act is in section 105, and that is the chief psychiatrist.

Similarly, there are many provisions of the Act, including sections 106 through to 106AB which confer powers on the chief psychiatrist.  The point we make about that is that in the scheme of the Act police officers have a very minor and a very limited role to play in the care of mentally ill persons.  Those persons who have a range of powers under the Act are those who are clinically qualified, who can make clinical judgments which then inform their decisions as to whether someone is to be an involuntary patient or is to receive treatment in an involuntary manner.

CRENNAN J:   You might notice section 43 in the context of what you are presently saying because that provides for prescribed persons, that includes a police officer, to apprehend an involuntary patient who is absent without leave.  So the limited powers of the police seem to be powers to apprehend for protective purposes.

MR WHEELAHAN:   That is our submission, and they are not, in the scheme of this Act, responsible in any way for the care of mentally ill persons.  We will come back to that submission when we look at the question of control.  The last point we make about the 1986 Mental Health Act is that it repealed the Mental Health Act 1959. We have provided the Court with copies of the 1959 Act so that the Court can see the precursor of section 10.

The precursor of section 10 was found in section 45(2). Under that subsection there was power vested in police officers to apprehend a mentally ill or intellectually defective person in the circumstances described in section 45(1) and then to take that person before two justices. One has to read that section together with section 48(1) which established a procedure for the examination of the mentally ill person by two medical practitioners and empowered the justices to make an order directing such person to be removed into an appropriate institution. It is our submission that that section is the parallel provision or the precursor to section 10 in the current Act.

FRENCH CJ:   Was attempted suicide an offence at some point abolished by ‑ ‑ ‑

MR WHEELAHAN:  It was until 1967 in Victoria. It has been abolished by section 6A of the Crimes Act 1958.

FRENCH CJ:   So, 45(1)(c) might really have a similar operation in that context?

MR WHEELAHAN:   At least until 1967.

FRENCH CJ:   Yes.

HEYDON J:   Except that attempted suicide may have been a crime, but suicide was not, I take it, and what the person described in section 45 had in mind was not for the purpose of attempting the crime of attempted suicide, it was for the purpose of committing actual suicide.

MR WHEELAHAN: Section 6A of the Crimes Act (Vic) purports to abrogate the crime of suicide and attempted suicide which tends to suggest that suicide may have been regarded as a crime in Victoria.

HEYDON J:   Can surely only have been so for the purpose of secondary participation.  How can you prosecute a deceased person?

HAYNE J:   But it was there for the secondary offender.  It was the aid and abet, counsel or procure.  That is why it was there.

MR WHEELAHAN:   We wish to turn now to the issue of control and control embraces vulnerability and necessarily requires an examination of Pyrenees. Properly construed section 10 of the Mental Health Act does not create a sufficient degree of control by police officers over the risk that mentally ill persons might harm themselves or others such as to attract a duty of care.  That is for the following reasons. 

First, the power is engaged only if the jurisdictional facts exist and therefore the power is significantly qualified and indeed remote.  Second, even if the power under the section is both engaged and then exercised, the control is limited to taking an apparently mentally ill person to a medical practitioner.  Third, and this is a point I adverted to earlier, construed as a whole the Mental Health Act 1986 does not vest in police officers’ responsibility for the wellbeing of apparently mentally ill persons.

HAYNE J:   But the submission simply identifies the need to specify control of what?  The word “control” is used often in this field of discourse, but standing alone it tells you nothing.  Control of what?  Control of the situation?  It does not tell you much more.

MR WHEELAHAN:   The risk of harm?

HAYNE J:   Then are you into a realm where you are positing a duty to intervene in the affairs of others?  That is, are you in the realm of general duty to rescue?  Unless there is a degree of precision about application of the word “control” I suspect that the argument will go astray.  What is the straw dummy you are wanting to set up and knock over, Mr Wheelahan?

MR WHEELAHAN:   Simply that construed properly police officers in the scheme of the Act do not have a sufficient measure of control over the risk that persons might harm themselves such as to lead to the result that there is a statutory intent to couple the decision whether or not to exercise a power with a tortious duty of care.

HAYNE J:   That is just saying you win.  There is no more content in that proposition than saying you win, Mr Wheelahan, because the power is there, the question is, if the power is exercised it is said that that would have prevented this set of circumstances.

MR WHEELAHAN:   The flaw in your Honour’s proposition, with respect, is your Honour’s first words, “the power is there”.  In our respectful submission, the power is not there.

HAYNE J:   You say not there, yes.

CRENNAN J:   However, if exercised, that is to say the power to apprehend, then there would be a degree of control, would there not?

MR WHEELAHAN:   There would be more control than if the jurisdictional facts did not exist, but it does not lead to the result that there is a duty of care because one has to take into consideration other matters such as inconsistency, to which we will come.

HAYNE J:   What I am saying about control I tried to capture in paragraph 305 of what I wrote in Crimmins v StevedoringIndustry Finance Committee 200 CLR 1 at 104, paragraph 305. Do not go to it, but that is the reference that I had in mind.

MR WHEELAHAN:   To capture our point, we would contrast the limited scope for control which a police officer has in cases such as the present with the complete control which the statutory authorities in Brodie v Singleton Shire Council and Vairy v Wyong Shire Council had over public roads and public land, respectively.

We come now to Pyrenees which the majority considered was on all fours with this case.  Pyrenees is in tab 12 of our learned friend’s authorities.  In our submission, Pyrenees is quite distinguishable from this case for the following reason, and it is a very significant reason.  In Pyrenees the Shire, by conducting an inspection of the subject premises and sending a letter which was received by the first tenant of the premises, had entered upon the exercise of its statutory powers in the relevant sphere and we say that because, in our submission, three of the five members of the Court held that the Shire had either actually or endeavoured to exercise a statutory power.

Those members of the Court were Justice Toohey at paragraphs 48 and 49 who considered that the power under section 695(1A) of the Local Government Act 1958 had been exercised.  Secondly, your Honour, Justice Gummow who at paragraph 151 considered that the statutory power under section 694(1) of the Local Government Act had been exercised and, thirdly, Justice Kirby at paragraph 252 at his Honour’s point 2 who considered that the Council had purported to take action in purported exercise of statutory powers but had done so incompetently.

In our submission, Pyrenees is correctly seen as an application of this Court’s decision in Caledonian Collieries v Speirs (1957) 97 CLR 202 at 220, that is that when statutory powers are exercised “they must be exercised with reasonable care”, generally speaking.

In this case there can be no suggestion that any statutory power was exercised.  It is therefore outside – that is, this case is outside Caledonian Collieries v Speirs and it is also outside Pyrenees.  Alternatively to that submission, we say that on their proper construction the relevant provisions of the Local Government Act 1958 which were considered in Pyrenees created in the council a sufficient measure of control such as to attract a duty of care in carrying out that control, the control being directed at reducing or eliminating the risk of fire.  For the reasons we have submitted, that feature of control is absent in the present case.

On the question of vulnerability, it is or submission that vulnerability is properly understood as being in a state of dependence on the person who is suggested to have control, but in the absence of control there can be no dependence.  In this case, Mr Veenstra, if he was vulnerable, was vulnerable only in an everyday sense of that word, and was not vulnerable in the sense that term has been used by this Court.

We turn now to the question of inconsistency.  We look at inconsistency through the prism of Sullivan v Moody. The inconsistency is manifested in this case in two ways. The first way is that the suggested duty of care is inconsistent with the proper exercise of power under section 10 which is fettered by the framework of the Act and, in particular, section 4(2)(b).

Second, the suggested duty of care, if it is owed to other persons, such as in this case, the plaintiff, Mrs Veenstra, who was in a close relationship with Mr Veenstra, is also inconsistent with the obligations arising under section 10 and the express fetters which we submit attach to the exercise of the statutory power. That inconsistency leads to considerations of the prospect of civil liability which, on the face of the statute, are irrelevant to the exercise of the power.

The prospect of civil liability operates, as we say in our written submissions at three levels.  First, the prospect of civil liability may affect the judgment which a police officer makes as to the existence or otherwise of the jurisdictional fact of the appearance of mental illness, which, as I submitted earlier, will in many cases be a matter of fact and degree.  Second, the prospect of civil liability will also affect a police officer’s judgment as to whether he or she has reasonable grounds for the beliefs which might engage the section.  Again, that in our submission is a question of fact and degree and thirdly, the prospect of civil liability will weigh on the police officer’s mind when he or she comes to exercising the discretion itself.

The prospect of civil liability therefore introduces into the decision‑making process an irrelevant consideration which is liable to distort the statutory decision‑making process.  In particular, the prospect of civil liability distorts the weight to be given to the other matters which the statute requires be given consideration and that is a matter which his Honour, the learned President, acknowledged.

The prospect of liability to third parties such as those in a close relationship with a person who may suffer nervous shock and also to victims of persons who might appear to be mentally ill magnifies the distortion.  This is the principal reason why, even if the jurisdictional facts were found to exist, no tortious duty arrises.  The prospect of civil liability converts the statutory “may” into the tortious “must”.

In our submission there are no reasons open on the evidence to hold that the police officers owed tortious duties which were different to any other member of the public who may have come across Mr Veenstra’s vehicle.  The failure to take any of the steps which the first respondent alleges in the particulars of negligence at page 12 of the appeal book are not

capable, in the circumstances, of attracting any civil liability.  If the Court pleases.

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

MR KENNAN:   If the Court pleases. We say that the starting point and maybe the ending point is the Act. The scheme of the Act is that the power of arrest is given by section 10(1). If the preconditions which are appearing to be mentally ill and a person recently attempting suicide or likely to attempt suicide are met, and we would say also that the evidence of an attempted suicide or likely to attempt suicide, may inform the consideration that the person is mentally ill because mental illness is broadly defined as including a disturbance of mood, but if those matters are met, what then happens is that the police have the power to arrest for the purpose only of taking the person to be assessed by a medical practitioner. That appears in section 10(4), which says that:

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

(a)an examination of the person by a registered medical practitioner; or

(b)an assessment of the person by a mental health practitioner.

CRENNAN J:   This may be a semantic quibble, I am not sure, but is it better to call it a power to apprehend rather than a power to arrest just so as to avoid any confusion about the need for a belief that it is necessary to preserve public order or matters of that kind?  It is cast as a power to apprehend.

MR KENNAN:   Yes, it may be.

CRENNAN J:   I think the powers under the Children and Young Persons Act and under the Health Act, which are special powers, are powers to apprehend rather than powers to arrest, suggesting a distinction between the powers set in a protective custody setting as distinct from the powers to arrest in relation to an apprehended crime or something of that sort.

MR KENNAN:   Yes.  With respect, I would agree with that, your Honour.  It may also be better to describe it as a power to apprehend in this sense, that it is only a power to apprehend and take the person or arrange for the person to be assessed.  It is not a power to arrest and lock up or arrest and detain generally.

CRENNAN J:    Yes.

MR KENNAN:   The scope of the police officer’s authority extends to arranging ultimately for an assessment by a medical practitioner or a mental health practitioner and then possibly to partake in the transportation, if that is required on assessment by a medical practitioner for involuntary treatment, to a place of treatment. That is the scope of the power. The focus we say therefore of section 10 is a protective one. It is not for care and treatment. It is merely to facilitate an assessment which may or may not result in voluntary treatment or, indeed, involuntary treatment. That is a decision ultimately to be made by a medical practitioner under, I think, section 9, according to the criteria; if it is to be involuntary treatment, in section 8(1).

FRENCH CJ:   So the apprehension terminates at what point?  At the point of examination by a medical practitioner and thereafter something else must take over if anything is to be done with the ‑ ‑ ‑

MR KENNAN:   Yes, your Honour. I think that appears in section 10(5).

The mental health practitioner may assess the person, having regard to the criteria in section 8(1) and ‑

(a)advise the member of the police force to ‑

(i)arrange for an examination of the person by a registered medical practitioner; or

(ii)release the person from apprehension –

That is in respect of the mental health practitioner, who may be a nurse or a social worker or a person of that category. Then section 10(6):

If the mental health practitioner assesses the person and advises the member of the police force to arrange for an examination of the person by a registered medical practitioner the member of the police force must do so as soon as practicable.

Then section 10(7):

If the mental health practitioner assesses the person and advises the member of the police force to release the person from apprehension under this section the member must do so unless the member arranges for a personal examination of the person ‑ ‑ ‑

GUMMOW J:   Which reprint are you reading from, Mr Kennan?

FRENCH CJ:   I do not think that was the position in 1999.

MR KENNAN:   I am sorry, your Honour.

GUMMOW J:   We have Reprint No 5.

MR KENNAN:   I am sorry, your Honour.  I think the mental health practitioner was added later, but the scheme is that ‑ ‑ ‑

FRENCH CJ:   Under the 1999 print, you have the apprehension and you have the obligation to “arrange an examination of the person” under 10(4).

The registered medical practitioner may examine the person for the purposes of this Act.

That is where it sort of cuts out, and thereafter, you presumably have to look at some other power.

CRENNAN J:   Section 12.

FRENCH CJ:   Like section 12, as Justice Crennan suggests.

MR KENNAN:   Yes, that is so, your Honour.

HEYDON J:   So your submission – if it matters – is that the registered medical practitioner can restrain, as it were, the person in question, and say “You cannot leave until I have completed my examination”.

MR KENNAN:   I think that is so, your Honour, but the involuntary treatment is dependent on the decision of the registered medical practitioner, and if there is no such recommendation, that is the end ‑ as we understand the scheme of the Act – of any involuntary apprehension or detention. The purpose of the apprehension that flows from section 10(1) is to have the person assessed ultimately by a registered medical practitioner, and the evidence in this case was that that could have been done at the Frankston Hospital some 10 minutes away from the scene.

FRENCH CJ:   Just tracking it through, that would be the registered practitioner making a recommendation under 9(1)(b) in the prescribed form, and then the condition for the exercise of the power of admission and detention under 12 comes in?

MR KENNAN:   Yes, that is so, your Honour.

CRENNAN J:   I think your particular (e) – if I remember particulars of breach – relates to the power to have the examination undertaken by a medical practitioner, if I remember correctly. So, particular (e), I think, translates into or falls neatly under section 10(4)?

MR KENNAN:   Yes, your Honour. The duty as pleaded was a duty to take reasonable care to protect - as far as the deceased was concerned, his health and safety - and the particular breach was failing to arrest and to arrange for him to be examined by a medical practitioner, pursuant to section 10. That is under (a).

CRENNAN J:   Sorry, I remember it as (e).

MR KENNAN:   Your Honour is correct.  It is also under (e):

Failing to ensure the deceased’s mental state was assessed by a suitably qualified or experienced person at the time of the incident –

but (a) as expressed is “failing to arrest the deceased and arrange” and (e) is expressed in “failing to ensure” which obviously envisaged circumstances where the person might consent without apprehension being required.

KIEFEL J:   Do I take it that you see the purpose of section 10 as a facilitating role on the part of the police?

MR KENNAN:   Yes, your Honour.

KIEFEL J:   So in that way you would then – I am sorry to interrupt you – you would put the requirement of their consideration as to whether a person is mentally ill at a lower level?  Is that what you get from the approach that you were taking?

MR KENNAN:   Yes, your Honour.

KIEFEL J:   So there is not much involved in the assessment.  Any concern would be sufficient for the police officer to set this train ‑ ‑ ‑

MR KENNAN: Yes, your Honour, and that is underlined, we would say, by section 10(1A), which expressly says that a clinical judgment is not required and by the generality of the definition of “mental illness” as a significant disturbance of mood. The patrol sheet, which is at page 237 of the court book, did record in the last word on the – ended on the patrol sheet at page 237, it did record “depressed”.

GUMMOW J:   So just looking at section 10(5) for the moment, as it existed 10 years ago:

The registered medical practitioner may examine the person for the purposes of this Act. 

What are the sections that spell out the purposes of the Act, shortly stated?

MR KENNAN:   Section 4 sets out the objects of the Act, your Honour, and section 5 sets out the objects of the department, but in answer to your Honour’s question, possibly the closest is section 4(1)(a).

HAYNE J:   Well, is it 4(1)(a) or is it 8 relevantly?

MR KENNAN:   Section 8, your Honour?

HAYNE J:   Yes.

MR KENNAN:   Well, that is a specific provision in relation to detention as an involuntary patient, but in terms of the broader objects of the Act, it is 4(1)(a) which embraces involuntary patients but the Act, of course, has wider purposes.

HAYNE J:   I understand that.  I directed attention to 8 because it seemed to me, once you were in the realm of detaining someone, you were in a field of discourse where you are talking about involuntary conduct, involuntary treatment, involuntary patients, and that the purposes of the Act which regard had to be had under 10(5) was whether to put the patient under the Act’s scheme for dealing with involuntary patients.

MR KENNAN: Well, we would say not necessarily, your Honour, because the purpose of section 10 in the context of the Act is initially one of protection of a person who appears to be mentally ill and has recently attempted or is likely to attempt suicide for the purpose of assessment by a registered medical practitioner. Now, what flows from that assessment will depend on the medical practitioner’s assessment. It might be that the medical practitioner thinks that there is no medical treatment of any kind required. It might be that there is an arrangement made for voluntary treatment. It might be that there is involuntary treatment.

FRENCH CJ: The medical practitioner might decide that – and the conditions upon which the section 10 power operates suggest this – the person is intending to commit suicide but is not mentally ill and therefore does not answer the criteria for admission under section 8 and let him go.

MR KENNAN:   That is so, your Honour.  Let him go or might arrange voluntary treatment or counsel.

FRENCH CJ:   Well, he might not want it.

MR KENNAN:   Well, he might not fall within the definition of “mentally ill”, but he might think that it is advisable for him to see a doctor for whatever else might be ailing him.

FRENCH CJ:   I am putting to you a scenario that the fact that the man wants to commit suicide does not lead necessarily to the conclusion that he is mentally ill within the meaning of either section 10 or the criteria for involuntary admission under section 8.

MR KENNAN:   Not necessarily, your Honour, but the expert evidence I think called in this case, which is in the appeal book, indicates that intervention by either psychologists or psychiatrists in the case of people who had been suicidal was very effective, and I think Professor ‑ ‑ ‑

FRENCH CJ:   I have seen that material.  I am not cavilling at that, but the question is, what does the statutory scheme contemplate may happen?  It just seemed to me that one of the options, one of the outcomes, that could occur is you could get an examination, you could get a conclusion that the person is perfectly sane but determined to take their own life.

MR KENNAN:   There is a difference between sanity and mental illness, your Honour.

FRENCH CJ:   Let us say not suffering from any mental illness.  They might be suffering from a terminal disease and decide that they want to end it.

MR KENNAN:   Yes, but the terminal disease might well have significantly depressed their mood.

FRENCH CJ:   That is a different hypothesis.  All I am asking you is whether the Act contemplates the possibility of the registered medical practitioner concluding that a person who is determined to take their own life is not mentally ill and lets them go.

MR KENNAN:   It may be, your Honour.  We would say it is unlikely but I cannot exclude the possibility.  The other possibility, I suppose, is that the medical practitioner may, on a proper investigation of the matter with the patient, what was then really a patient, conclude that there was not a serious attempt at suicide at all.

FRENCH CJ:   That is another hypothesis.

MR KENNAN:   Yes, it is another hypothesis.  I cannot say that the Act does not contemplate a medical practitioner reaching those sorts of conclusions, but I do say that the emphasis placed here on the police officer is at least to put the person who appears to be mentally ill and who appears to be, if I could use it broadly, suicidal in the position for their protection of at least having that assessment made by a medical practitioner for their protection.  If, of course, medical treatment is thought to be desirable and helpful, then they have the benefit of that and, if they are mentally ill, it is even more important that they be brought in, those what are obviously urgent or emergency circumstances, to have the benefit of that to save their lives.

CRENNAN J:   The key assumption, I suppose, is one I think you were pointing to under 4(1)(a) and that is an assumption that certain mentally ill people cannot consent themselves to their care and treatment.  That is why there is the whole scheme for involuntary patients, which has always been a feature of the mental health legislation.

MR KENNAN:   Yes, that is so, your Honour, and always probably a feature of people who are mentally ill or of depressed mood not recognising it and not seeking help early enough.  Indeed, I think that was the burden of a lot of the expert evidence in this case.  If there is appropriate intervention at the appropriate time, then lives can usually be saved.

KIEFEL J: But taking up what Justice Crennan has just pointed out to you, it is not the purpose of the Act, is it, to gather all persons who could benefit from treatment or intervention, nor is it to prevent people from carrying out suicidal thoughts? Section 10 is concerned with persons who might have suicidal thoughts but are unable to reason through to a conclusion about their own autonomy and that is what marries in with the Act, is it not, that these are people who need assistance because they are so out of the realm of being able to make their own mind?

MR KENNAN:   That is so, your Honour, and heightened, in our submission, by the fact that they are found to be either recently attempting suicide or likely to.

KIEFEL J:  No, that does not necessarily follow. That is not what I am suggesting. What I am suggesting is section 10 – the question for members of the police force is someone has to appear to be so mentally ill as to be unable to make the decision for themselves concerning suicide or such as might cause someone harm. But putting third parties aside, in relation to themselves, mental illness would have to present itself in such a way to indicate to the police officers an inability to reason.

MR KENNAN:   Well, we would say that the Act does not quite require that level of finding, your Honour.  We would say that it simply requires, where police find a person who does appear to be mentally ill which is for this purpose significantly a depressed mood, for instance, and has recently attempted suicide or likely to attempt suicide, then that is enough.  It need not go so far as to say that they are rendered incapable of reasoning through the position so that they can then themselves get help, although that might in many cases be in fact the case.

KIEFEL J:   No, but what I am suggesting is that there has to be – the word “significant” is used in section 8(1A).  What has to present itself to police officers has to be with all that follows in mind, this person is going to be detained and assessed.  The reason for all of this is that there has to be a degree of severity in relation to mental illness, their apparent condition that would require them to act.  It cannot be every person who appears to be even significantly mood disordered that would result in this action.

MR KENNAN:   Well, your Honour, qualified only, we would say, by evidence apparent to the police officer that the person has recently attempted suicide or is likely to do so. 

KIEFEL J:   But you are assuming that that informs mental illness by itself and members of the Court have suggested to you that that might not be the case.

MR KENNAN:  Well, with respect, I agree with that, your Honour, it may not be the case. But all section 10(1) is saying, in our submission, is that a member of the police force comes across someone who appears to be mentally ill, as defined by the Act, and who is, in broad terms, suicidal they then have the power under the Act to apprehend the person, but only for the purposes of getting the person assessed by a registered medical practitioner.

KIEFEL J:  I suppose in one sense we might be taking the matter forward to what is the complete content of the duty and breach. But if we return to what section 10 requires of a police officer, does it require any more than a consideration in good faith as to whether someone appears to be mentally ill? Not whether they get it right, but that they consider?

MR KENNAN:   Well, we would say that, your Honour, the duty is to take reasonable steps including – and the scope would include apprehension for the prevention of foreseeable harm to a person who they find appears to be mentally ill and has recently attempted suicide.  It would appear that the appearance of mental illness is a subjective test and “reasonable grounds” is a phrase used in relation to the second factor of suicide. 

KIEFEL J:   But is focused just on the first inquiry?

MR KENNAN:   Yes.

KIEFEL J:   Why is it any more than that they give true and honest consideration to whether someone appears to be mentally ill?

MR KENNAN:  Well, if they do the duties enlivened, we would say if they find that the conditions in section 10 are met, they then have a duty to take reasonable steps to prevent foreseeable harm to that person at that point.

KIEFEL J:   That is after they have considered what I have suggested, but just so I understand it are you suggesting that the inquiry as I have proposed it is too narrow or too abstract, that is, that the police officer consider whether the person is mentally ill.  Would they have the appearance of it, I should say?

MR KENNAN:   No, I do not suggest that is too narrow, that is the wording of the statute, your Honour.

KIEFEL J:   And that is the scope of the duty?

MR KENNAN:   Well, no, your Honour, what I say is that if they come across a person who both appears to be mentally ill and the police officer has reasonable grounds for believing the person in broad terms is suicidal, then they then have a positive duty to take reasonable steps, and the scope of that duty includes apprehension in order to prevent foreseeable harm to that person.

We say that in this case, indeed the evidence was that they had entered the field because they had found the person.  They found the person, we say effectively in the act of suicide.  He had the hose going from the back of the car into the car.  He was in an isolated location.  Really all that had to be done was to wind the window up and turn the engine on and the evidence from their viewpoint was that he was writing a note and they conceded that it struck them that it may well have been a suicide note.  So he was in the act of committing suicide.

As the evidence later showed, had he not been interrupted he would have done it then because the suicide note that was ultimately found had on it a reference to something to the effect that – and I will turn it up in the appeal book because it does – it is at 235.  The Court will see in the third paragraph:

I wish no media – report only that a young man in his mid 30’s died of axphixiation –

“Mornington” crossed out, “Sunday @ 6.00 AM” crossed out –

Somerville                   11.30 AM

So, what had happened is the Mornington 6.00 am was obviously the intention until he was interrupted and then in the last paragraph he says:

I am now at home at the rear of the house doing this as 2 well meaning police officers thwarted my original attempt.

That adds to the fact that of course he had had Mornington 6.00 am in the first version of the suicide note that he then crossed out.  Now, what we say is that the police officers obviously thought that he was depressed and they had a conversation with him and it was clear that he had been – on their evidence – contemplating suicide and that is corroborated by the objective facts.

As I say, the only further step really to be taken in attempting suicide was to wind up the window and turn the engine on and they, at that stage, had, in observing that, asking him questions about it, I think they watched him remove the hose from the exhaust and put that in the car.  They had obviously at that stage, we would say, entered the field.  We say that they had a duty at that point to exercise reasonable care and the scope of that duty was to apprehend him if there was not agreement, but certainly to have him assessed by a medical practitioner, and indeed I think there was evidence of a conversation with him which he said he might see his own doctor.

Whether or not, of course, the facts of this case gave rise to breach is a separate question, but we say that the scope of the duty extended in that way. As far as the operation of section 4 on section 10 we do say that ‑ ‑ ‑

FRENCH CJ:   In the exercise of the duty of care they were really obliged to disbelieve him, were they not, on your argument?

MR KENNAN:   No.

FRENCH CJ:   As to the fact he had changed his mind, he was going to go home, I am just wondering how that interacts, their reaction to that interacts with the duty of care you posit.

MR KENNAN:   Whether or not what they did, after having that conversation with him and letting him go home, is a matter, we say, that would go to whether or not there was a breach.

FRENCH CJ:   I see what you mean, yes.

MR KENNAN:   We say they had the duty and this Court ‑ ‑ ‑

FRENCH CJ:   That would have to go to a jury.

MR KENNAN:   Yes, your Honour.  The evidence was led at the trial in the County Court and then there was an argument as to duty.  The judge held no duty.  Appealed to the Court of Appeal on the basis of duty.  The Court of Appeal held there was duty and ordered a new trial on that basis.  We say the decision before this Court is whether or not a duty exists but not as to breach.

HAYNE J:   The question for the jury in terms of negligence, if you had got to that point, would have been whether a reasonable police officer acting in the circumstances of this case would have apprehended Mr Veenstra.  Is that right?

MR KENNAN:   Yes, your Honour.

HAYNE J:   Would there have been any other question on the question of breach other than that breach of duty owed to Mr Veenstra on the Wrongs Act arm of the claim?

MR KENNAN:   I think not, your Honour.  Indeed, I think the evidence from one of the police officers is, had they thought that he was mentally ill, then they said they would have taken him directly to the Frankston casualty unit which has a psychiatric unit 10 minutes away.  They say, just putting it very broadly, they did not do that for, they would say, good reason.  But that is ultimately a question for the jury, we would say.

KIEFEL J:   Would you mind restating for me what you say the duty is, how it is ‑ ‑ ‑

MR KENNAN:   To take reasonable steps to prevent him from foreseeable harm and the scope of that duty we would say includes apprehension and taking him to a medical practitioner for assessment.

HAYNE J:   Taking reasonable steps to prevent foreseeable harm at his hands.

MR KENNAN:   Yes, your Honour, in the circumstances of this case.

KIEFEL J:   I am sorry to harp on the section, but I am still grappling with it, as you would appreciate.  The way in which you describe the duty must rely upon the words following, “if the member of the police force has reasonable grounds for believing”, that is the part relating to the possible previous attempted suicide or other harm, as informing the inquiry that the police or the question that the police answer for themselves.

MR KENNAN:   Yes, your Honour.

KIEFEL J:   It does. What if one approached section 10(1) on the basis that, as I have suggested to you before, the fact for which they have reasonable grounds for belief, that is relating to the potential for suicide, is the statutory determination of the urgency of the situation so that it removes from the member of the police force the inquiry as to whether or not they should act in relation to a particular proposed action? The statute answers that for them by saying if there are reasonable grounds for believing that they have recently attempted suicide and you have a person who is mentally ill you must act and bring them into custody for assessment. But that is by way of saying, and this may not be entirely clear, that the only question that the statute poses for the policeman or policewoman is whether or not the person is mentally ill. The urgency of the situation is determined by what follows after the words if they believe that something has happened or is about to happen.

MR KENNAN: I think that is, with respect, probably correct, your Honour, and, indeed, the other provisions that are referred about their responsibility under the Act to take the person as soon as practicable to a registered medical practitioner put the emphasis on speed and expedition. I think the second reading speech that my learned friend, Mr Ruskin, referred to was couched in terms of, effectively, police being at the front line in, effectively, emergency situations. Certainly whilst section 10(1) does not use a word like that, the scheme of the Act seems to envisage that these are situations where the police must act immediately if those conditions are met.

KIEFEL J:   But does not that remove what you have fed into the duty, the risk of harm, as an element to be considered by the police?

MR KENNAN:   Well, I said that the duty was a duty to take reasonable steps to prevent foreseeable harm, your Honour, and the scope of the duty extended to arrest and taking him to a medical practitioner, because obviously it may be that on intervention the person volunteers to go with the police to the Frankston Hospital, for instance, in this case, and there is no need to actually apprehend the person as such.

KIEFEL J:   Well, these might all be desirable outcomes, but the focus of the inquiry here in relation to duty is simply what do the police actually have to consider?  Consider, not what might be the result of that consideration.

MR KENNAN:   Yes.  Well, we say, your Honour, it is mental illness and a suicidal state and then they must act.  They have a duty to act.  Whether or not there has been a breach, depends on the facts of a particular case.

FRENCH CJ:  When you spoke of the scope of the duty in answer to Justice Kiefel you spoke of taking steps including apprehension and taking to a practitioner for examination. Those are really the only steps that section 10 contemplates. Is there some sort of penumbra around that of other things or are they all incidental to those steps?

MR KENNAN:   They are really incidental to those steps we would say, your Honour, because we say – I think there was a reference that I wanted to make to something his Honour Justice Gummow said in a case about looking at, as it were, the “four walls of the statute”, I think the phrase was, as to the relationship that arises which are not previously known to the common law.  It is a reference to what his Honour Justice Gummow said in Crimmins.  His Honour said that:

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 it is this peculiar relationship created by this statute that gives rise to this common law duty because we recognise that there is no general duty of one person to rescue another in these situations and that we would not be seeking to argue this case, of course, if there was not section 10.

FRENCH CJ:   Thank you very much.  Would that be a convenient time, Mr Kennan?

MR KENNAN:   It would be, your Honour.

FRENCH CJ:   The Court will adjourn to 10.00 am tomorrow.

AT 4.14 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 4 DECEMBER 2008