Stuart v Kirkland-Veenstra

Case [2009] HCA 15

HIGH COURT OF AUSTRALIA

FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ

DAVID STUART & ANOR  APPELLANTS

AND

TANIA KIRKLAND-VEENSTRA & ANOR  RESPONDENTS

Stuart v Kirkland-Veenstra [2009] HCA 15
22 April 2009
M39/2008

ORDER

1.        Appeal allowed.

2.Set aside the orders of the Court of Appeal of the Supreme Court of Victoria made on 29 February 2008, except insofar as they deal in paragraph 4 with the costs of the appeal to that Court, and in their place order that:

(a)each party bear its own costs of the proceedings at first instance; and

(b)the appeal to the Court of Appeal be otherwise dismissed.

3.Appellants to pay first respondent's costs of the appeal to this Court.

On appeal from the Supreme Court of Victoria

Representation

J Ruskin QC with R J Orr for the appellants (instructed by Victorian Government Solicitor)

J H Kennan SC with P T Vout and P Halley for the first respondent (instructed by Slater & Gordon)

M F Wheelahan SC with M D Rush for the second respondent (instructed by Deacons Lawyers)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Stuart v Kirkland-Veenstra

Torts – Negligence – Duty of care – Where Mental Health Act 1986 (Vic), s 10 empowered police to apprehend person who "appears to be mentally ill" if reasonable grounds for believing that person had recently attempted suicide or likely to do so – Where police came upon man who appeared to have been contemplating suicide but showed no sign of mental illness – Interaction of common law and relationship established by s 10 – Whether duty of care to prevent foreseeable harm to man at own hand – Relevance of conditions engaging exercise of statutory power – Relevance of fact that duty alleged is duty to protect person from self-harm – Relevance of general rule against duty to rescue – Relevance of vulnerability of particular class of persons – Relevance of control over source of risk to persons.

Torts – Negligence – Duty of care – Where duty alleged to arise in context of power conferred by Mental Health Act 1986, s 10 – Whether preconditions to existence of power established on facts – Whether common law duty could exist in absence of relevant power.

Torts – Breach of statutory duty – Relevance as alternative to action alleging breach of common law duty of care – Principles relevant to determining legislative intention that cause of action be available – Relevance of legislative provision for special measures to protect identifiable class of persons or property – Whether existence of discretion to exercise power inconsistent with existence of statutory duty.

Statutes – Interpretation – Whether person who has attempted suicide to be equated with person "mentally ill" – Relationship between attempted suicide and mental illness – Understanding at common law of relationship between suicide and mental illness.

Words and phrases – "mentally ill".

Crimes Act 1958 (Vic), ss 457,…

Continue reading Stuart v Kirkland-Veenstra

Sign in free to access the full text

Details
AGLC
Stuart v Kirkland-Veenstra [2009] HCA 15
Case
[2009] HCA 15
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered a dispute between police officers (Stuart and Woolcock) and the State of Victoria, and the widow of a man who died by suicide (Mrs Kirkland-Veenstra). The central issue was whether the police officers owed a duty of care to the deceased, Mr Veenstra, to prevent him from taking his own life, particularly in circumstances where they had the power under the *Mental Health Act 1986* (Vic) to apprehend him if he appeared mentally ill and likely to attempt suicide.

The legal questions before the High Court included whether a common law duty of care could arise in the context of a statutory power, the preconditions for the exercise of that statutory power, and whether the alleged duty to protect a person from self-harm was recognised at common law. The Court also considered the relationship between attempted suicide and mental illness as understood at common law and the relevance of the officers' control over the source of risk and the vulnerability of the deceased.

The High Court allowed the appeal, setting aside the orders of the Victorian Court of Appeal which had remitted the case for retrial. The High Court's reasoning emphasised the importance of analysing the specific statutory provision, section 10 of the *Mental Health Act 1986* (Vic), and the factual circumstances. The Court noted that the power conferred by section 10 was subject to the condition that a person "appears to be mentally ill," requiring the officer to form a subjective opinion based on the person's behaviour and appearance, and that attempted suicide was not of itself sufficient to establish mental illness for the purposes of the Act. The Court ultimately determined that the preconditions for the exercise of the statutory power were not met on the facts, and that a common law duty of care did not arise in this novel situation, particularly given the general rule against a duty to rescue and the fact that the alleged duty was to protect the individual from self-harm.

The High Court ordered that each party bear their own costs of the proceedings at first instance, and that the appeal to the Court of Appeal be otherwise dismissed. The appellants were ordered to pay the first respondent's costs of the appeal to the High Court.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the orders of the Court of Appeal of the Supreme Court of Victoria made on 29 February 2008, except insofar as they deal in paragraph 4 with the costs of the appeal to that Court, and in their place order that:

(a) each party bear its own costs of the proceedings at first instance; and

(b) the appeal to the Court of Appeal be otherwise dismissed.

3. Appellants to pay first respondent's costs of the appeal to this Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FRENCH CJ GUMMOW, HAYNE AND HEYDON JJ
On 21 July 2006, the trial judge made an order giving judgment for the defendants and consequential costs orders. His Honour's decision was appealed to the Court of Appeal of Victoria. On 29 February 2008, the Court ordered that the appeal be allowed, the decision of the trial judge be set aside and that the proceeding be remitted to the County Court constituted by a different judge for retrial. Orders were made that the two officers and the State pay Mrs Kirkland-Veenstra's costs of the appeal and that the costs of the first trial should abide the result of the retrial.Reasons for judgment in the Court of Appeal Warren CJ and Maxwell P were both of the opinion that the appeal should be allowed. Chernov JA dissented. Key elements of the Chief Justice's reasoning were: (i)The case concerned "a specific power vested in a special category of persons to prevent self-harm of the gravest kind". These persons have the authority and the capacity to intervene[2].(ii)Whether a duty of care exists in a novel case is to be decided according to a multi-factorial or "salient features" approach[3].(iii)The officers were aware of the danger faced by Mr Veenstra. They had the power, under s 10 of the 1986 Act, to apprehend him and take him to hospital or to call for medical assistance[4].(iv)The officers owed a duty of care at common law to Mr Veenstra. It arose independently of statute. There were no supervening policy reasons to deny it on the facts[5]. It was enlivened at the time that the officers realised that Mr Veenstra was contemplating suicide[6].(v)The duty of care required the officers to exercise their statutory power reasonably to protect those whom the Act sought to protect[7].(vi)The class of persons to whom the duty was owed consisted of those in clear and obvious contemplation of suicide. The scope of the duty extended to assessment of the situation and possibly the provision of assistance as provided for in the Act[8]. (vii)It was reasonably foreseeable that a failure to apprehend Mr Veenstra and take him to hospital or arrange for medical assistance might result in his suicide. The officers had noticed that he was depressed and had observed all facets of his preparations to commit suicide, including the hose, its connection to the car exhaust and the making of a note[9].(viii)It was also reasonably foreseeable that if the officers failed to exercise reasonable care in their dealings with Mr Veenstra, Mrs Kirkland-Veenstra would suffer the kind of injury which she did. It was reasonable to expect the officers to have had Mrs Kirkland-Veenstra in contemplation as a person "closely and directly affected" by their acts and omissions in relation to her husband[10].[2](2008) Aust Torts Reports ¶81-936 at 61,304 [39].[3](2008) Aust Torts Reports ¶81-936 at 61,307 [56].[4](2008) Aust Torts Reports ¶81-936 at 61,305 [44].[5](2008) Aust Torts Reports ¶81-936 at 61,307 [56] and 61,309 [69].[6](2008) Aust Torts Reports ¶81-936 at 61,309-61,310 [72].[7](2008) Aust Torts Reports ¶81-936 at 61,307 [54].[8](2008) Aust Torts Reports ¶81-936 at 61,310 [76].[9](2008) Aust Torts Reports ¶81-936 at 61,308 [61].[10](2008) Aust Torts Reports ¶81-936 at 61,313 [90].

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, GUMMOW, HAYNE AND HEYDON JJ

Gummow J pointed, in Pyrenees Shire Council v Day[56], to criteria by which the courts in Australia and England were said to have applied principles of negligence to local authorities with respect to the discharge of their statutory functions. They involved distinctions between decisions taken at a policy level and decisions of an operational character, between misfeasance and non-feasance and between statutory powers and statutory duties. But as his Honour said[57]: "Some of these distinctions and doctrines are entrenched in the common law of Australia, others are not. All of them … tend to distract attention from the primary requirement of analysis of any legislation which is in point and of the positions occupied by the parties on the facts as found at trial. This analysis is of particular importance where … the facts do not fall into one of the classes … already recognised by the authorities as attracting a duty of care, the scope of which is settled." It is the statutory provision in question, s 10 of the 1986 Act, that requires first consideration. [56](1998) 192 CLR 330 at 376-377 [125]; [1998] HCA 3, see also his Honour's observations on the significance of the relevant statutory scheme in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 59 [159].[57](1998) 192 CLR 330 at 377 [126].The operation of s 10 In considering whether, having regard to s 10, the officers, Stuart and Woolcock, owed the propounded duty of care to Mrs Kirkland-Veenstra and her late husband, it is necessary to examine the operation of the section and the statutory scheme of which it is a part. The power which the section confers on police officers is subject to two necessary conditions. The first requires that a person "appears to be mentally ill". This is the language which was used in s 45(1) of the 1959 Act and might be taken as requiring that the person to be apprehended exhibit objectively ascertainable indicia of mental illness. However, in the context in which the term is used in s 10, before a person can be apprehended it is clear that he or she must appear to the apprehending officer to be mentally ill. That is to say, the officer must form the opinion that the person is mentally ill. This requires a subjective opinion by the officer[58].[58]Robinson v Sunderland Corporation [1899] 1 QB 751 at 757 per Channell J; St James's Hall Company v London County Council [1901] 2 KB 250 at 255 per Channell J and see Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 70 FCR 93 at 120-123 and authorities there cited; George v Rockett (1990) 170 CLR 104 at 111-113; [1990] HCA 26 considering the term "if it appears to a justice" in s 679 of the Criminal Code (Q). The preceding construction is reinforced by the language of s 10(1A) and the definition of "mentally ill" in s 8(1A). The requisite opinion is an opinion formed, having regard to the behaviour and appearance of the person, that the person has a mental condition characterised by a significant disturbance of thought, mood, perception or memory. This does not require "clinical judgment" by the officers. A layman's opinion conforming with the broad definition of "mentally ill" in s 8(1A) would suffice. As is apparent from the structure of s 10, and consistently with the common law history discussed earlier, the fact that a person has attempted suicide or prepared to attempt suicide is not of itself sufficient to support an inference that the person is mentally ill.