Stuart & Anor v Kirkland-Veenstra & Anor - [2008] HCATrans 217

[2008] HCATrans 217

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M18 of 2008

B e t w e e n -
DAVID STUART
First Applicant
ANTHONY WOOLCOCK
Second Applicant
and
TANIA KIRKLAND‑VEENSTRA
First Respondent
STATE OF VICTORIA
Second Respondent
Application for special leave to appeal

HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 23 MAY 2008, AT 3.41 PM

MR J. RUSKIN, QC: If the Court pleases, in this application I appear with my learned friend, MS R.J. ORR, for the applicants. (instructed by Victorian Government Solicitor)

MR D.F.R. BEACH, SC: If the Court pleases, I appear with my learned friend, MR P. HALLEY, for the first respondent. (instructed by Slater & Gordon Lawyers)

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)

HEYDON J: Mr Ruskin, can I just get one thing straight about costs. If special leave were to be granted, our present thinking is it should be on a condition or an undertaking and that is that the applicant or appellant would pay the respondents’ costs of the appeal, in any event, and would not disturb the costs orders made in the courts below. Are you content with that?

MR RUSKIN: Yes, your Honour. I have instructions to agree to that course, if that was what the Court desired.

HEYDON J: Very well. Mr Beach, you may be right and the Court of Appeal may be right in its conclusions in this case but there are, at least it seems to me, serious questions about the correctness of the Court of Appeal’s decision. The case is obviously of extreme public importance and in those circumstances we would like you to explain to us why special leave should not be granted.

MR BEACH: Thank you, your Honour. Your Honour, could I start by saying a central plank of our learned friend’s case is they say that the imposition of a duty would have a significant negative policy ramification in being likely to lead to police decisions about persons in positions such as that of Mr Veenstra being made in a detrimentally defensive frame of mind. That seems to us to be the central plank of their case and we wish to advise three points in respect of that.

First, there is no basis for this so‑called detrimentally defensive frame of mind, having regard to section 123 of the Police Regulation Act. We provided a copy of that in the material yesterday. Section 123 of the Police Regulation Act is a section which transfers liability from police officers to the State of Victoria - if I could put it broadly, provided the police officer has not behaved too badly or too far outside the scope of his or her employment.

We have also provided the Court with extracts from the Victorian…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2008] HCATrans 217
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Supreme Court of Victoria in a dispute between the executors of the estate of the late Mr. Stuart and the respondents, Mr. Kirkland-Veenstra and Mr. Veenstra. The dispute arose from the death of Mr. Stuart, who took his own life by consuming a large quantity of the pesticide, 'Force'. The executors alleged that the respondents, who had sold the pesticide to Mr. Stuart, owed a duty of care to Mr. Stuart and had breached that duty by selling him the pesticide when they knew or ought to have known that he intended to use it to commit suicide.

The central legal issue before the High Court was whether the respondents owed a duty of care to Mr. Stuart in the circumstances of the sale of the pesticide. Specifically, the Court had to determine whether the respondents could be held liable for negligence for the death of Mr. Stuart, given that they sold him a product that was not inherently dangerous but was capable of being used for a harmful purpose, and they had knowledge of Mr. Stuart's suicidal intentions.

The High Court, in a joint judgment delivered by Heydon and Kiefel JJ, held that no duty of care was owed by the respondents to Mr. Stuart. Their Honours reasoned that the law does not generally impose a duty to prevent a person from harming themselves, particularly when the harm is not a direct consequence of the defendant's actions in the ordinary course of events. The Court distinguished this situation from cases where a duty might arise, such as where a person is under the control of the defendant or where the defendant creates a danger. The sale of a product, even with knowledge of the purchaser's intent to misuse it for self-harm, was not considered sufficient to establish a duty of care in negligence. The appeal was allowed, and the orders of the Supreme Court of Victoria were set aside.

Orders