Stuart v Kirkland-Veenstra - [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, 463B.
Mental Health Act 1986 (Vic), ss 3, 8, 10.
Wrongs Act 1958 (Vic), Pt III.
FRENCH CJ.
Introduction

Between mid-morning and 2.30 pm on 22 August 1999, Ronald Hendrik Veenstra committed suicide at his home in Somerville, Victoria by sitting in his car with the engine running. A hose connected the exhaust pipe to the interior of the vehicle.
Earlier that day, at about 5.40 am, two police officers had observed Mr Veenstra in his vehicle in a car park on the Mornington Peninsula with a hose leading from the exhaust pipe to the interior of his vehicle. The engine was not running. Upon being questioned, Mr Veenstra persuaded the officers that although he had been about to do something stupid he had changed his mind and was going home to talk to his wife. He sounded rational and was responsive to their questions. He declined their various offers of assistance. He removed the hose from the exhaust. The officers let him proceed from the car park.
Mr Veenstra's widow, Mrs Kirkland-Veenstra, sued the officers and the State of Victoria before a judge and jury in the County Court alleging that the officers had breached their duty of care towards her husband and herself by failing, inter alia, to apprehend him under s 10 of the Mental Health Act 1986 (Vic) ("the 1986 Act"). At the close of the evidence the trial judge ruled that there was no duty of care and gave judgment for the defendants. Mrs Kirkland-Veenstra appealed to the Court of Appeal which, by majority, allowed the appeal, set aside the trial judge's decision and remitted the matter for retrial[1]. The officers were granted special leave to appeal to this Court.
[1]Kirkland-Veenstra v Stuart (2008) Aust Torts Reports ¶81-936.
This is not a case about moral or ethical obligations or what commonsense might or might not have dictated as an appropriate course of action for the officers. Those questions may be open to debate and there may be different views about what more the officers could have done in the situation in which they found themselves. Their power to apprehend Mr Veenstra was limited and conditional. The case is about whether they owed a legal duty to Mr Veenstra and his wife, breach of which could expose them and the State of Victoria to liability for damages for negligence. Mr Veenstra's death was a tragedy for him and his wife. That sad fact does not answer the legal question for decision.
In my opinion the trial judge was correct, there was no legal duty of care and the appeal should be allowed. The existence of a power to apprehend Mr Veenstra under s 10 of the 1986 Act was critical to the reasoning of the Court of Appeal and to the case as presented in this Court. However, it was a power which was never enlivened. The officers said, and the trial judge held, that they did not think Mr Veenstra was mentally ill. Although findings by the trial judge that Mr Veenstra showed no signs of mental illness were under challenge in the Court of Appeal, the finding as to the officers' opinions about him was not the subject of any ground of appeal. There was no suggestion that the officers' opinions were not held in good faith. While attempted suicide may be indicative of mental illness, it is not necessarily so. Moreover, it seems clear that while Mr Veenstra had taken preliminary steps in contemplation of suicide, he had not "attempted" suicide within the meaning of s 10. The officers, after talking with him, did not believe that he was going to take his own life. In the circumstances they could not have apprehended him unless they believed him to be mentally ill and likely to attempt suicide. The case for a duty of care depended upon the existence of the power to apprehend. That power did not exist in this case.
Factual history as found by the trial judge
At about 5.40 am on 22 August 1999, Ronald Hendrik Veenstra was observed by two members of Victoria Police to be sitting in a car at the Sunnyside Beach public car park on the Mornington Peninsula. The two officers were Acting Senior Sergeant Stuart and Detective Senior Constable Woolcock. Both were experienced officers, both held the rank of Detective Senior Constable. DSC Stuart had been a police officer for 17 years and DSC Woolcock for 12 years.
DSC Stuart saw Mr Veenstra in the driver's seat. He also saw a light-coloured corrugated tube running from the rear of the vehicle to its left side. He inferred that the driver was contemplating suicide. He told DSC Woolcock what he had noticed and what he thought. Both officers approached the driver's side of the vehicle. The window was fully open. The engine was not running. As they approached the car they saw Mr Veenstra put a notepad into a briefcase inside the car.
Mr Veenstra gave the officers his name and address. He told them that he had been in the car park for about two hours before they had arrived. The officers asked him about the tube secured to the exhaust of his car. He said he had been contemplating doing something stupid but had changed his mind. He said he was in a loveless marriage. He had been writing down some thoughts for his mother and was about to leave the scene when they arrived. He was going to go home and discuss things with his wife. He said that he was an intelligent person and that there were other options open to him. He did not use the word "suicide", nor expressly state that he had been thinking about killing himself.
The officers felt the bonnet and radiator of the vehicle, both of which were cold. They asked Mr Veenstra about his employment and asked whether he had prior dealings with the police. They asked whether he wanted them to contact his wife or to take him to see a doctor or to drive him home. He declined their offers of assistance. He said he would see his own doctor later on. Mr Veenstra told DSC Stuart that he wanted to go home and speak to his wife about his marital problems. The two officers had observed a vacuum cleaner in the rear of the car. There were no exhaust fumes in the car. They checked, through police radio, on the vehicle, the licence and Mr Veenstra's personal history. Neither the vehicle nor the driver had been recorded as missing. It was the fact that arrangements had been made with Mr Veenstra through his solicitor for police to serve him, on the afternoon of that day, with papers relating to fraud charges arising out of his former employment as financial manager of a car dealership. There is no suggestion that either of the two officers was aware of those arrangements or of the fact that there were charges pending against Mr Veenstra.
Both officers were of the opinion that Mr Veenstra showed no signs of mental illness. He appeared to them to be rational, cooperative and very responsible the entire time. During their conversation he removed the hose from the exhaust and placed it in the vehicle. He did this of his own initiative and not as a result of any suggestion made to him by the officers.
The two officers were aware that they had a power under s 10 of the 1986 Act to apprehend a person who appeared to have a mental illness and to have attempted or to be likely to attempt suicide. They did not exercise that power. They allowed Mr Veenstra to leave the car park. In a patrol log which they wrote up at the end of the shift they recorded that Mr Veenstra was depressed and had contemplated suicide but would seek help and return home. They recorded also that he did not want police intervention and did not want his family informed. The trial judge found:
"When interrupted, the objective evidence was consistent with voluntary withdrawal by Mr Veenstra from his plan."
All told, the officers were at Sunnyside Beach car park for about 15 minutes. It was 6 am when Mr Veenstra left to return to his home. The officers left shortly after him and returned to the police station.
Mrs Kirkland-Veenstra saw her husband at about 9 am that morning when she awoke. She said he was "a little bit quiet". She was planning to go out to a dog show. Mr Veenstra said he would not come with her as he didn't feel well. She offered to stay home. He told her that she had to give a message to a colleague about a forthcoming meeting of dog breeders. She went off by herself.
At some time between mid-morning and 2.30 pm Mr Veenstra committed suicide by asphyxiation outside his home by connecting a hose to the exhaust of his vehicle, putting the other end into his car and starting the engine. He had left a suicide note. His father-in-law found him at about 2.30 pm and tried unsuccessfully to revive him. His wife returned home very shortly afterwards. She also tried to revive Mr Veenstra but was unsuccessful.
The proceedings in the County Court of Victoria
On 2 May 2003, Mrs Kirkland-Veenstra issued a writ out of the County Court of Victoria naming the two officers and the State of Victoria as defendants. She claimed to have suffered injury, loss and damage including nervous shock arising from learning of her husband's suicide. She alleged that the two officers had owed her and her late husband a duty of care, which they had breached.
In her amended statement of claim Mrs Kirkland-Veenstra alleged that:
.At the time of speaking to her husband at Sunnyside Beach the two officers knew or ought to have known that he was:
(a)      mentally ill;
(b)      in the process of committing suicide; and
(c)      likely to attempt suicide or to cause serious bodily harm to himself.
.At all material times they owed him and her a duty to take reasonable care to protect his and her health and safety. This duty was said to arise pursuant to:
(a)      common law;
(b) the effect and operation of s 10 of the 1986 Act; and
(c)      the operation of the Victoria Police Manual.
She also alleged that the two officers owed her a duty to prevent foreseeable psychiatric injuries to her resulting from breach of the duty of care they owed to the deceased.
The pleaded breaches of the duty of care, which were various, included the failure by the two officers to arrest the deceased and arrange for him to be examined by a medical practitioner pursuant to s 10 of the 1986 Act.
Mrs Kirkland-Veenstra also pleaded the existence of a "statutory duty" by the two officers and that they breached that duty. There was, however, no relevant statutory duty and that contention was not pressed on the appeal to this Court.
Mrs Kirkland-Veenstra alleged that as a consequence of the breaches of duty by the two officers she had suffered injury, loss and damage, particularised as depression, post-traumatic stress disorder, nervous shock, and pain, shock and suffering. Section 23 of the Crown Proceedings Act 1958 (Vic) was relied upon to establish the liability of the State of Victoria for the alleged breaches of duty by the two officers. The proceedings were brought by Mrs Kirkland-Veenstra for her own benefit, at common law and pursuant to the provisions of Pt III of the Wrongs Act 1958 (Vic).
The trial judge's decision
The trial of the action was heard in the Victorian County Court before a judge and a six person jury. After the close of the evidence and following submissions by counsel, the trial judge held that:
"the plaintiff is not owed a duty of care either under the Wrongs Act by the defendants or for her personal injuries in the form of nervous shock and post-traumatic stress disorder which she alleges she suffered by reason of the negligence of the defendants".
In his reasons for judgment, the trial judge proceeded on findings of fact which he himself made. They form the basis of the factual outline set out earlier in these reasons.
The trial judge held that s 10 of the 1986 Act confers a statutory power but imposes no duty. There was no relevant statutory duty imposed upon the officers which would assist in formulating a common law duty of care. He said:
"In the knowledge of the provision of s 10 of the [1986 Act] and the Victoria Police manual, [the officers] made a considered judgment; that is, that Mr Veenstra did not manifest signs that he had a mental illness such as to justify his detention and conveyance to a doctor for examination. The temptation to reason that Mr Veenstra subsequently suicided by the same method that he set in train at Sunnyside [Beach] carpark at his home about six hours later and that, applying the but for test of causation, had the officers detained him he may not or would not have suicided later is an argument based not on foreseeability of harm, but on hindsight. Equally, it may be said Mr Veenstra did as he said he would do. He went home and spoke with his wife. He tricked her and committed suicide in her absence."
His Honour said:
"For these reasons I am of the opinion that neither a common law duty of care nor a statutory duty of care in favour of Mr Veenstra was owed by the [officers]. Consequently, no liability can attach to the [State of Victoria] in such circumstances."
His Honour also found that there was no duty of care owed by the officers to Mrs Kirkland-Veenstra.
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].
Maxwell P agreed with the Chief Justice and also made the following key points:
(i)Emphasis was to be placed on the degree of danger to which Mr Veenstra was exposed, the limited opportunity he had to protect himself given his mental state and the absence of any cost or inconvenience to the officers in exercising the power[11].
(ii)The officers had legal authority to exercise direct, immediate and complete control over the risk that Mr Veenstra might commit suicide. They were able, under s 10, to do what no other person could do without risking civil liability for assault or false imprisonment, namely apprehend Mr Veenstra and use "such force as may be reasonably necessary"[12].
(iii)The imposition of a duty of care would not "significantly and impermissibly" constrain the discharge by police officers of their duty to consider whether or not the power under s 10 was exercisable and should be exercised[13].
(iv)The policy of the Act was that there should be intervention to prevent suicide when there was an identified risk that it might occur. A precautionary approach responsive to, rather than dismissive of, indicia of risk must be seen as conducive to the achievement of the statutory purpose[14].
[11](2008) Aust Torts Reports ¶81-936 at 61,314 [100].
[12](2008) Aust Torts Reports ¶81-936 at 61,315 [103].
[13](2008) Aust Torts Reports ¶81-936 at 61,316 [110].
[14](2008) Aust Torts Reports ¶81-936 at 61,317 [116].

Both the Chief Justice and Maxwell P were of the view that the case was not about the exercise of policing powers. It was more closely analogous to cases about the exercise of powers vested in statutory authorities generally[15]. Both of their Honours proceeded on the basis that the two officers had the power to apprehend Mr Veenstra in the car park. That was, with respect, a conclusion which could not be supported having regard to the necessary pre-conditions for the exercise of the power that Mr Veenstra should appear to the officers to be mentally ill and that they should have reasonable grounds for believing that he was likely to attempt suicide. The non-satisfaction of those conditions is addressed later in these reasons.
[15](2008) Aust Torts Reports ¶81-936 at 61,302 [29] per Warren CJ, 61,316 [112] and 61,317 [115] per Maxwell P.
Chernov JA dissented. His Honour held that there was no duty of care of the kind propounded by the majority. The essential reason for his conclusion was that the imposition of the claimed duty of care was incompatible with the framework of the 1986 Act[16]. In reaching that conclusion his Honour held:
(i) In deciding whether to exercise the discretion under the Act, the relevant officer was subject to a number of constraints. They required a "fine line" decision not only determining whether the requirements of s 10(1) were made out, but also taking into account competing policy considerations expressed in the Act. The officer was to exercise the discretion in the context of a duty to maintain public order, a duty owed to the public generally and not to individual members[17].
(ii)The imposition of a common law duty on such an officer would amount to a "distorting" influence on the discretionary power and be inconsistent with the legislative scheme[18].
(iii)The control and vulnerability which might give rise to a duty of care did not exist in the present case. The control able to be exercised by the officers was of a limited nature. It was not apparent that the exercise of the power could have removed the risk to the deceased. There was no relevant vulnerability or dependence by the deceased on the officers[19].
[16](2008) Aust Torts Reports ¶81-936 at 61,318 [120].
[17](2008) Aust Torts Reports ¶81-936 at 61,319 [126].
[18](2008) Aust Torts Reports ¶81-936 at 61,319 [127].
[19](2008) Aust Torts Reports ¶81-936 at 61,321 [131].
A number of the trial judge's findings of fact were challenged in the amended notice of appeal in the Court of Appeal, including the finding that Mr Veenstra did not manifest signs that he had a mental illness such as to justify his detention and conveyance to a doctor for examination. There was no challenge to the finding as to the officers' opinions about Mr Veenstra's mental condition. The grounds challenging the trial judge's findings of fact were not dealt with by the Court of Appeal. Her Honour, the Chief Justice, said[20]:
[20](2008) Aust Torts Reports ¶81-936 at 61,313 [94].
"Mostly, the matters were properly matters to be determined by the jury in any event, as was acknowledged by counsel for the [officers]. Doubtless his Honour proceeded to determine these matters as part of his decision on the duty point."
Grounds of appeal
The grounds of appeal in this Court involved one proposition variously justified, namely that the majority in the Court of Appeal erred in holding that the officers owed a duty of care to Mr Veenstra.
Statutory history and framework
From the 19th century until 1943, a series of statutes known as Lunacy Acts made provision for the apprehension, examination, commitment and treatment of mentally ill persons in Victoria[21]. In 1943 the Lunacy Acts still in force were renamed Mental Hygiene Acts[22]. The Mental Hygiene Acts and an unproclaimed Mental Deficiency Act 1939 (Vic) were consolidated into the Mental Health Act 1959 (Vic) ("the 1959 Act"). It provided for the involuntary admission to institutions of "mentally ill or intellectually defective"[23] persons. The process of commitment involved bringing such persons before justices, their examination by medical practitioners and their commitment where various conditions were met[24]. That process, in one form or another, had been in place for many years.
[21]Lunacy Act 1890 (Vic), Lunacy Act 1903 (Vic), Lunacy Act 1915 (Vic), Lunacy Act 1928 (Vic), Lunacy Act 1941 (Vic) and Lunacy Act 1943 (Vic).
[22]Mental Hygiene (Mode of Citation) Act 1943 (Vic), ss 1(2) and 2(1)(a)-(c).
[23]1959 Act, s 45(1).
[24]1959 Act, ss 45-51.
Section 45 of the 1959 Act empowered a justice to make orders requiring police officers to apprehend, and bring before two justices, persons who appeared to be mentally ill or intellectually defective, without sufficient means of support or wandering at large, or thought to be contemplating the commission of an offence. Section 45(2) was the closest equivalent to the present s 10. It provided:
"Any member of the police force finding any such person so wandering or under such circumstances as aforesaid may without any such order apprehend him and take him before two justices."
The Mental Health Bill, introduced into the Parliament in May 1985, was based upon recommendations contained in the report, published in December 1981, of a Consultative Council established by the Minister for Health to review mental health legislation in Victoria ("the Myers Report")[25]. The Consultative Council proposed a new statute to replace the 1959 Act[26]. The recommended aim of the new legislation was to minimise[27]:
"(a)restrictions upon the liberty of any person with mental illness, and
(b)interference with his civil rights, privacy, dignity, self-respect, and cultural, moral or religious beliefs,
so far as is consistent with his proper protection and care and, in the case of his mental illness constituting a threat to the public safety, with the protection of the public".
The recommendation was reflected in the Second Reading Speech in May 1985, in which the Bill was said to be based on the "fundamental principle" of the "least restrictive alternative"[28]. The recommended aim of the new Act and the fundamental principle referred to in the Second Reading Speech were embodied in cl 4(2)(b) of the Bill in relation to the care and treatment of persons who are mentally ill.
[25]Victoria, Consultative Council on Review of Mental Health Legislation, Report of the Consultative Council on Review of Mental Health Legislation, December 1981, known as the Myers Report after the Chairman, Dr D M Myers. See Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 30 May 1985 at 71.
[26]Victoria, Consultative Council on Review of Mental Health Legislation, Report of the Consultative Council on Review of Mental Health Legislation, December 1981 at 13 (Recommendation 26) and 147 [13.3(i)].
[27]Victoria, Consultative Council on Review of Mental Health Legislation, Report of the Consultative Council on Review of Mental Health Legislation, December 1981 at 147-148 [13.3(vi)].
[28]Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 30 May 1985 at 71.
The Bill was described in the Second Reading Speech as concentrating on involuntary patients[29]. In the Explanatory Memorandum it was said that the Bill recognised that the classification of a person as an involuntary patient involved a curtailment of civil liberties[30]. It took the approach that such action should only be contemplated if absolutely necessary for the safety and wellbeing of the person, or for the protection of the community.
[29]Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 30 May 1985 at 73-74.
[30]Victoria, Legislative Assembly, Mental Health Bill 1985, Explanatory Memorandum at 1; see also Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 30 May 1985 at 74.
Under the heading "APPREHENSION BY POLICE", the Minister acknowledged the school of thought that police should not have a role to play in the admission of apparently ill persons. He said[31]:
"Nevertheless, it is a fact of life that the police are usually the first to be summoned to some antisocial incident, and no one else is better trained or equipped to provide the assistance which may be required to deal with a difficult situation."
After referring to the existing "archaic" provisions requiring an inquiry by two justices, he said[32]:
"In an emergency situation where, for example, an apparently mentally ill person has gone berserk, or is about to commit suicide, the police will have the power to enter any premises without the need for a warrant, and to use such force as may be reasonably necessary to apprehend the person for the purpose of immediately bringing him or her before a medical practitioner."
Clause 10, as it appeared in the Bill at that time, conferred a power upon police to apprehend persons apparently mentally ill in a wider range of circumstances than those set out in the section as enacted. These included circumstances in which the police had reasonable grounds to believe that the person was "likely to commit an offence against the law"[33].
[31]Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 30 May 1985 at 76.
[32]Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 30 May 1985 at 77.
[33]Mental Health Bill 1985, cl 10(1)(d).
The Bill was withdrawn and public comment invited. It was re-presented with amendments as the Mental Health Bill (No 2) in November 1985. The Minister, in his Second Reading Speech for the revised Bill, said its objectives and fundamental principles were the same as those embodied in the earlier version[34]. The Minister made specific comment about cl 10[35]:
"Some concern was expressed by several organizations at the powers to be vested in the police in clause 10 of the earlier Bill. The aim of this clause is to give the police a capacity to take an apparently mentally ill person into custody in an emergency situation. The Government accepts that the earlier clause may have been too broadly worded, especially to the extent that it would give police more powers to apprehend apparently mentally ill persons than they currently have under the criminal law. The revised clause 10 will limit police powers of entry without warrant to those situations where an apparently mentally ill person is in danger of suiciding, or doing serious harm to himself."
[34]Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 28 November 1985 at 2611.
[35]Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 28 November 1985 at 2612.
The Mental Health (Amendment) Act 1995 (Vic) ("the 1995 Amending Act") amended the 1986 Act. As appears from the Second Reading Speech, the 1995 amendments to the Act followed upon recommendations incorporated into a Discussion Paper prepared by the Psychiatric Services Division of the Victorian Department of Health and Community Services in February 1995[36]. The amendments were also informed by the report of a consultancy commissioned by the Australian Health Ministers Advisory Council (AHMAC) Working Group on Mental Health Policy in 1994 to draft model clauses for the use of States and Territories in the development of nationally consistent mental health legislation[37].
[36]Victoria, Department of Health and Community Services, Psychiatric Services Division, Victoria's Mental Health Services: Proposed Amendments to the Mental Health Act 1986, Discussion Paper, (1995).
[37]Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 5 October 1995 at 424.
Section 11 of the 1995 Amending Act introduced a new sub-s (1A) into s 8 of the 1986 Act. That sub-section provided a definition of "mental illness". Section 8 sets out the criteria for admission and detention of persons as involuntary patients. The definition in s 8(1A) was also incorporated by reference in the list of definitions of general application to the Act which are set out in s 3. The definition is in the following terms:
"Subject to sub-section (2), 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."
Section 8(2) excludes a number of classes of behaviour as reasons for considering a person to be mentally ill. None of these is, or was, said to be material for present purposes.
According to the Second Reading Speech for the Mental Health (Amendment) Bill in 1995, the definition of "mental illness" would "provide guidance to consumers, practitioners and the broader community about the grounds for detention"[38].
[38]Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 5 October 1995 at 425.
Section 10, itself, was the subject of amendments in 1990 and 1994, as well as in the 1995 Amending Act. The 1990 amendment inserted sub-s (4) in its relevant form save for the word "registered" before "medical practitioner" which was introduced in 1994[39]. The 1995 amendments introduced sub-s (1A) into s 10. It made clear that a police officer forming an opinion about whether a person was mentally ill was not required to exercise a clinical judgment. This amendment coincided with the introduction of the definition of "mental illness" by the enactment of s 8(1A). In 1999, at the time of Mr Veenstra's death, s 10 provided:
[39]Mental Health (General Amendment) Act 1990 (Vic), s 5; Medical Practice Act 1994 (Vic), Sched 1, Item 38.4.
"Apprehension of mentally ill persons in certain circumstances
(1)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.
(1A)A member of the police force is not required for the purposes of sub-section (1) 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 the member of the police force to be mentally ill.
(2)For the purpose of apprehending a person under sub-section (1) a member of the police force may with such assistance as is required –
(a)enter any premises; and
(b)use such force as may be reasonably necessary.
(3)A member of the police force exercising the powers conferred by this section may be accompanied by a registered medical practitioner.
(4)A member of the police force must as soon as practicable after apprehending a person under sub-section (1) arrange an examination of the person by a registered medical practitioner.
(5)The registered medical practitioner may examine the person for the purposes of this Act."
Section 10 appears in Div 2 of Pt 3 of the 1986 Act. The other provisions of that Division form the statutory scheme of which s 10 is part. As they stood at the time of Mr Veenstra's death those other provisions included:
.Section 8 setting out the criteria for admission and detention as an involuntary patient.
.Section 9 providing for involuntary admission of persons upon a recommendation in the prescribed form by a registered medical practitioner.
.Section 11 providing for the issue by a magistrate of a special warrant authorising and directing a member of the police with a registered medical practitioner to visit and examine a person appearing to be mentally ill and incapable of caring for herself or himself.
.Section 12 providing for the admission and detention of involuntary patients upon a request and recommendation by a medical practitioner pursuant to s 9.
Other provisions of Div 2 are not material for present purposes.
The apprehension of a person under s 10 does not necessarily lead to that person's admission or detention as an involuntary patient. The 1986 Act, as it stood in 1999, required a person apprehended by police officers under s 10 to be brought to a registered medical practitioner for examination[40]. A person so examined could only be admitted and detained as an involuntary patient according to the criteria and procedures set down in the other provisions of Div 2 of Pt 3 of the 1986 Act. Unless the person met the criteria set out in s 8, including that of mental illness, there was no basis for further coercive action following upon examination by the practitioner. These provisions of the Act give nobody the legal power to prevent a person from taking his or her own life. That is not to say that timely interventions and counselling will not avert suicide or serious self-harm. There was evidence about the effects of intervention on short term and long term survival given at trial by Mr Jeffrey Cummins, a clinical and forensic psychologist called as an expert witness on behalf of Mrs Kirkland-Veenstra. But those questions are not before this Court which is concerned, in this appeal, only with the existence of a legal duty of care, breach of which gives rise to liability for damages.
[40]1986 Act, s 10(4).
Section 122 of the 1986 Act provides immunity from suit in the following terms:
"No civil or criminal proceedings lies [sic] against any person for anything done in good faith and with reasonable care in reliance on any authority or document apparently given or made in accordance with the requirements of this Act."
This immunity has no application to action taken by police officers under s 10. The authority to act under s 10 is given by that provision. The trial judge noted that although s 122 was initially relied upon, it was not pressed at trial and was eventually formally abandoned.
It should also be noted that any person may use reasonable force to prevent a person from committing suicide. Section 463B of the Crimes Act 1958 (Vic) states:
"Every person is justified in using such force as may reasonably be necessary to prevent the commission of suicide or of any act which he believes on reasonable grounds would, if permitted, amount to suicide."
This provision confers legal immunity on a person committing what might otherwise be an assault, in order to prevent somebody from committing suicide. Its full scope was not debated on the appeal. It was not suggested that it had any part to play in determining whether officers Stuart and Woolcock owed a legal duty of care to the deceased and his wife.
Mental illness and suicide
Section 10 does not assume a necessary linkage between mental illness and attempted suicide. This accords with the long-standing resistance of the common law to the proposition that such a connection necessarily exists[41]. That resistance no doubt has its origins in the historical treatment of suicide as a crime designated "felo de se". The requirements of criminal responsibility for the commission of such an offence assumed a mind capable of choosing to do or not to do the prohibited act. Blackstone, writing in the 18th century, described suicide as "self-murder" and said "[t]he party must be of years of discretion, and in his senses, else it is no crime"[42]. But he criticised the merciful tendency of coronial juries to find that suicide was itself evidence of insanity. Such findings avoided the harsh legal consequences that followed for the family of the deceased of forfeiture of his property to the Crown[43].
[41]Ray, A Treatise on the Medical Jurisprudence of Insanity, (1838) at 383 [286].
[42]Blackstone, Commentaries on the Laws of England, (1769), bk 4 at 189, and see generally Bloch, "The Role of Law in Suicide Prevention: Beyond Civil Commitment – A Bystander Duty to Report Suicide Threats", (1987) 39 Stanford Law Review 929 at 930-931.
[43]Bloch, "The Role of Law in Suicide Prevention: Beyond Civil Commitment – A Bystander Duty to Report Suicide Threats", (1987) 39 Stanford Law Review 929 at 931-932. See also the discussion and references in the plurality judgment of Gummow, Hayne and Heydon JJ at [94]-[97].

Suicide and attempted suicide are no longer criminal offences. This has been the case since 1961 in England and 1967 in Victoria[44]. Suicide and attempted suicide are seen as reflective of psychological or psychiatric issues which may or may not involve "mental illness" according to established diagnostic conventions. State intervention to prevent suicide may now be seen, at least in part, as the exercise of a parens patriae role and the interest of the State in protecting the life of its own citizens[45].
[44]Suicide Act 1961 (UK), ss 1-2; Crimes Act 1967 (Vic), s 2.
[45]Bloch, "The Role of Law in Suicide Prevention: Beyond Civil Commitment – A Bystander Duty to Report Suicide Threats", (1987) 39 Stanford Law Review 929 at 935-936.
The common law does not even support the general proposition that attempted suicide or suicide gives rise to a presumption of mental illness, at least not to the extent that would amount to testamentary incapacity. A testator's suicide, following shortly upon the making of a will, does not raise a presumption of testamentary incapacity[46]. The Supreme Court of New South Wales came to that conclusion in 1988 in a case involving the suicide of a young testator who shot himself apparently within hours of making a form of will[47]. Not having been referred to, and unable to discover, any English or Australian authority on the point, Powell J accepted a number of propositions based on case law from the United States. Those propositions were that post-testamentary suicide "does not give rise to a presumption of testamentary incapacity", is not "at all conclusive on the issue" and "is not judicially regarded as proof per se of insanity"[48]. As noted earlier, there was in fact at least one old English authority on the point[49]. The test of testamentary incapacity which his Honour applied was drawn from the 19th century judgment of Cockburn CJ in Banks v Goodfellow[50]. It was considerably narrower than the definition of mental illness in s 8(1A). Nevertheless, the construction of s 10, which would not treat attempted suicide as necessarily reflecting mental illness, is consistent with the long-standing caution of the common law about that proposition. Given the complexity and variety of factors which may lead to suicidal behaviour, it would be a bold legislative step indeed to sweep it all under the rubric of mental illness, however widely defined[51]. That step has not been taken in the 1986 Act.
[46]Burrows v Burrows (1827) 1 Hagg Ecc 109 at 113 [162 ER 524 at 525-526]; Brooks v Barrett 24 Mass 94 at 97 (1828).
[47]Re Estate of Paul Francis Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698.
[48](1988) 14 NSWLR 698 at 707.
[49]Burrows v Burrows (1827) 1 Hagg Ecc 109 [162 ER 524].
[50](1870) LR 5 QB 549 at 565; see (1988) 14 NSWLR 698 at 705.
[51]There was evidence at trial from Professor Diego De Leo characterising suicide as "a behaviour" and not "a mental disease".
The statute and the common law
This case is about alleged actionable negligence on the part of officers Stuart and Woolcock. It therefore requires consideration of whether they owed a duty of care to Mr Veenstra and his wife in circumstances in which there was a reasonably foreseeable risk of harm to them in the event of a breach of that duty. If such a duty existed, it would then require consideration of whether the officers breached that duty and whether harm resulted.
The claim that the officers were repositories of a statutory power and that the scope of the asserted duty of care related to the discretion whether or not to exercise that power does not place the case into a distinct field of actionable tort. It is a claim for damages for injury caused by negligence. That is so, and remains so, notwithstanding the considerable body of jurisprudence on the tortious liability arising out of the exercise or non-exercise of statutory powers.The Court at all times is concerned with the application of "private law notions of duty", albeit they are applied in the field of the exercise of powers under public statutes[52]. As Gaudron J said in Crimmins v Stevedoring Industry Finance Committee[53]:
"In the case of discretionary powers vested in a statutory body, it is not strictly accurate to speak, as is sometimes done, of a common law duty superimposed upon statutory powers. Rather, the statute pursuant to which the body is created and its powers conferred operates 'in the milieu of the common law'." (footnotes omitted)
[52]Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 35 [82] per McHugh J (Gleeson CJ agreeing), 78-79 [218] per Kirby J, 96 [270] per Hayne J (Gummow J relevantly agreeing at 56 [149], see also at 59 [159] and following); [1999] HCA 59.
[53](1999) 200 CLR 1 at 18 [26], citing Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 487; [1995] HCA 47.
A claim for damages for breach of a duty of care may be made against the repository of a statutory power in circumstances in which:
(i)       a decision has been made not to exercise the power; or
(ii)a decision has been made to exercise the power and the claim relates to the manner of its exercise.
Bennion puts it thus at s 14 of his Code of statutory interpretation[54]:
"(16)   It constitutes the tort of negligence if a person purporting to perform a statutory requirement, or exercise a statutory authority, contravenes a duty of care which arises at common law, and is not intended to be overridden by the statute, and damage results. The case is similar with other torts such as nuisance. The reason is that the statutory power, duty or authority is then taken not to excuse malfeasance or misfeasance in its purported exercise.
…
(17)     Liability under the tort of negligence (as opposed to the breach tort) may arise where a statutory power is conferred on a person and that person carelessly fails to exercise the power, or exercises it in a careless manner, and damage results."
[54]Bennion on Statutory Interpretation, 5th ed (2008) at 82 and 84.
There are classes of case in which the statute conferring a power also imposes, expressly or by necessary implication, a duty to exercise the power. In that case the duty is statutory and a failure to exercise it may give rise to an action in tort for breach of statutory duty. That is not this case. It is not now suggested that s 10 or any other part of the 1986 Act conferred a statutory duty on the officers to exercise the power of apprehension in any circumstances, however pressing. Nor, therefore, can it be suggested that it gives rise to a cause of action for breach of statutory duty. But to say of a statute that it does not "create" a cause of action for breach of duty does not necessarily mean "that there is no room for the operation of the principles of negligence"[55].
[55]Brodie v Singleton Shire Council (2001) 206 CLR 512 at 541 [58] per Gaudron, McHugh and Gummow JJ; [2001] HCA 29.
The duty asserted in this case was a common law duty of care. It was said, in the Court of Appeal, to be supported by a number of connected circumstances, including the foreseeable risk of suicide, the officers' awareness of circumstances indicating that risk, the existence of the statutory power and the claimed capacity of the officers, by using that power, to do something to prevent Mr Veenstra's suicide. The existence of the statutory power was central to the argument put on behalf of Mrs Kirkland-Veenstra.
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.
Given its proper construction and the emergency situations with which s 10 is concerned, there is no scope for argument, in deciding whether the power to apprehend was enlivened, that, contrary to the opinion formed by the officer, there were indicia of mental illness which should have been apparent to him or her. The power is not enlivened by objective circumstances but by the opinion of the officer.
The second condition relevant to the present case that must be satisfied, before the power to apprehend a person under s 10 is enlivened, is that the officer has reasonable grounds for believing that the person is likely, by act or neglect, to attempt suicide. The term "has reasonable grounds for believing", when conditioning the exercise of a statutory power by reference to the person upon whom the power is conferred, is generally construed as meaning that the person must form the requisite belief and the belief must be based on reasonable grounds[59]. The term may sometimes be used in a statutory setting which does not require the requisite belief to be held so long as reasonable grounds for such a belief exist. This Court so held in George v Rockett[60] in relation to the power of justices to issue a search warrant under s 679 of the Criminal Code (Q). But that construction appears to have turned upon the particular structure of that section and the place in it of the words "reasonable grounds for believing" not linked directly to the state of mind of the justices. They were there used as part of an attribute of things which might be seized under the warrant.
[59]Lloyd v Wallach (1915) 20 CLR 299 at 304 per Griffith CJ (Powers J agreeing at 314), 308-309 per Isaacs J, 312-313 per Higgins J; [1915] HCA 60; Moreau v Federal Commissioner of Taxation (1926) 39 CLR 65 at 68 per Isaacs J; [1926] HCA 28; Boucaut Bay Co Ltd (In liq) v The Commonwealth (1927) 40 CLR 98 at 106 per Isaacs ACJ (Gavan Duffy, Powers and Rich JJ agreeing at 108); [1927] HCA 59; W A Pines Pty Ltd v Bannerman (1980) 30 ALR 559 at 566-567 per Brennan J, 569-572 per Lockhart J (Bowen CJ agreeing at 562).
[60](1990) 170 CLR 104 at 112.
In my opinion, the power of apprehension conferred by s 10, in the circumstances of this case, required the officers, before exercising that power, to form a subjective belief, albeit it had to be based upon reasonable grounds, that Mr Veenstra was likely to attempt suicide. What had occurred prior to the intervention of the officers, while indicative of preparations to commit suicide, did not indicate that an attempt had been undertaken. That is to say, the alternative necessary condition under s 10(1)(a) for the exercise of the power had not been satisfied. The section does not state the time interval over which the likelihood of an attempt is to be assessed. It is apparent from the Second Reading Speech of May 1985, however, that the section was intended to enable a response to what the Minister described as "an emergency situation". This suggests that the relevant likelihood is that the person is about to or will shortly attempt suicide unless apprehended.
In the present case it is clear from the findings of fact by the primary judge, accepting the testimony of the officers, that they did not think Mr Veenstra was mentally ill. That was an opinion they were entitled to form. The fact that a person has decided to commit suicide may indicate deep unhappiness or despair. It does not mean that the person is mentally ill within the meaning of s 8(1A). Mr Veenstra's rational and cooperative responses observed by the officers supported their opinion. The facts as found exclude the possibility that the officers had formed a belief, after their conversation with Mr Veenstra, that he was likely, shortly, to attempt suicide. On this basis neither of the conditions necessary for the exercise of the power of apprehension was satisfied.
The duty of care
The primary duty said to be owed to Mr Veenstra and Mrs Kirkland-Veenstra by the two officers was pleaded in the widest terms as "a duty to take reasonable care to protect his and her health and safety".
The duty of care identified by the Chief Justice in the Court of Appeal was a duty "to exercise reasonably the statutory power for the purpose of protecting those whom the Act seeks to protect"[61]. The scope of that duty was said to be "comparatively narrow"[62]. Her Honour went on to support her finding that the duty of care existed by saying that[63]:
"By the conferral of powers by the [1986 Act], the purpose of which was to protect the mentally ill from situations such as this, they had control over the situation."
The scope of the duty as her Honour found it "extended to the assessment of the situation and possibly the provision of assistance as provided for in the Act"[64].
[61](2008) Aust Torts Reports ¶81-936 at 61,305 [39] and 61,307 [54].
[62](2008) Aust Torts Reports ¶81-936 at 61,307 [54].
[63](2008) Aust Torts Reports ¶81-936 at 61,310 [76].
[64](2008) Aust Torts Reports ¶81-936 at 61,310 [76].
Maxwell P diverged from the Chief Justice in his formulation of the duty of care. His Honour formulated it in the terms pleaded in the amended statement of claim as a duty to take reasonable care to protect Mr Veenstra and Mrs Kirkland-Veenstra against reasonably foreseeable risks of harm[65]. Whether the discharge of the duty required the exercise of the power under s 10 was said to be a matter for the jury. His Honour placed emphasis on the "issues of control and knowledge", which he regarded as "particularly significant in this case"[66]. Like the Chief Justice, however, he proceeded on the basis that the power under s 10 was enlivened[67]:
"In the present case, the [officers] 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. 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'." (footnotes omitted)
[65](2008) Aust Torts Reports ¶81-936 at 61,314 [99].
[66](2008) Aust Torts Reports ¶81-936 at 61,314 [102].
[67](2008) Aust Torts Reports ¶81-936 at 61,315 [103], referring to s 10(2)(b).
The judgments of both the Chief Justice and the President turned upon the availability to the officers of the power to apprehend persons under s 10. On the unchallenged fact as found by the trial judge, that they believed that Mr Veenstra was not mentally ill, the power to apprehend him was never enlivened. And on the facts they did not believe, when they decided to let him drive home, that he would be likely, shortly afterwards, to attempt to take his own life. Absent that belief, the power could not be enlivened.
The duty of care which the majority in the Court of Appeal found to exist could not have existed because the critical statutory power conferred by s 10, which was in the end the foundation of the duty of care in the circumstances of the case, did not exist.
Conclusion
For the preceding reasons, in my opinion, this appeal should be allowed. I agree with the orders proposed in the plurality judgment of Gummow, Hayne and Heydon JJ.
GUMMOW, HAYNE AND HEYDON JJ. At about 5.40 on the morning of 22 August 1999 two police officers saw a motor car parked in a beachside car park on the Mornington Peninsula. One of the officers saw a tube leading from the exhaust into a rear window of the car and concluded that someone in the car was "contemplating suicide". The officers spoke to the occupant of the car, Ronald Hendrik Veenstra. Mr Veenstra told the officers that he had been sitting in the car park for two hours and when the officers asked Mr Veenstra about the tube into the car, he said that he had contemplated doing "something stupid".
The officers checked the car and its contents. No medication, alcohol or drugs were in the car; the engine was not running and was cold. The officers spoke to Mr Veenstra for about 15 minutes. He told them he had put his thoughts on paper but he would not show them what he had written. One of the officers later said that Mr Veenstra "had a mindset that he wanted to go home and speak to his wife about his marital problems".
The officers offered to contact a doctor, to contact Mr Veenstra's family, or to contact the psychiatric Crisis Assessment and Treatment service ("the CAT service"), but Mr Veenstra refused all these offers, saying that he would see his own doctor. The officers concluded that Mr Veenstra showed no sign of mental illness; that he was rational, co‑operative and responsible. The officers allowed Mr Veenstra to leave. Later that same day Mr Veenstra took his own life by securing a hose from the exhaust of his car and starting the engine.

A comparison may be drawn between this action and that arising under German law. There a duty to take affirmative action, on the part of a public official or body, may arise from the protective purpose of a legislative rule which was created to prevent the mischief that occurred[170]. The focus of the German courts is accordingly on the relevance and meaning of the official duty and the purpose it is to serve[171]. The principal control of actionability lies in the requirement that the duty be owed to an individual, as a member of a protected group. It is explained that this requirement is viewed much more strictly than in English law[172].
[170]Markesinis, Always on the Same Path: Essays on Foreign Law and Comparative Methodology, (2001), vol 2 at 262.
[171]Markesinis and Unberath, The German Law of Torts, 4th ed (2002) at 895; and see case note 132 at 953‑956.
[172]Markesinis, Always on the Same Path: Essays on Foreign Law and Comparative Methodology, (2001), vol 2 at 234, 235.
The requirement of legislative intention concerning the availability of a cause of action has been regarded as the defining feature of the action for breach of statutory duty. The difficulty, in most cases, of discerning an intention on the part of the legislature, that a remedy be provided to the persons to whom the statute might be seen as directed, was referred to by Dixon J in O'Connor v S P Bray Ltd[173]. His Honour observed that the legislature will rarely express such an intention. Resort has therefore often been had to presumptions or policy to supply the intention[174].
[173](1937) 56 CLR 464 at 477‑478; [1937] HCA 18; and see Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405 per Kitto J; [1967] HCA 31.
[174]O'Connor v S P Bray Ltd (1937) 56 CLR 464 at 478; and see Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405 per Kitto J.
In cases where a statute provides significant and special measures for the protection of classes of persons or of property, the difficulty with ascertaining legislative intention may not be so acute, at least where it may be discerned that the legislature would have expected the powers to have been exercised in the circumstances which prevailed. Cases such as R v Deputy Governor of Parkhurst Prison; Ex parte Hague[175] which state that an intention to protect individuals is not of itself sufficient to support an action for breach of statutory duty might be distinguished on this basis. The provisions in Pyrenees Shire Council v Day provide an example of a case where a legislative intent may have been inferred, although it was not necessary to resort to it in that case. There the plaintiffs did not rely upon breach of statutory duty to uphold the finding of liability, on the part of the Council, on the appeal to this Court, although they had pleaded that cause of action, in the alternative[176].
[175][1992] 1 AC 58 at 170‑171 per Lord Jauncey of Tullichettle.
[176]See Pyrenees Shire Council v Day (1998) 192 CLR 330 at 350 [40] per Toohey J.
The existence of a power coupled with a discretion may not suffice for an action for breach of statutory duty. The statute must oblige the exercise of those powers in the circumstances which prevail. In Sutherland Shire Council v Heyman[177] Gibbs CJ observed that the relevant statutory provisions conferred powers on the Council but did not place it under a statutory duty which was required to be performed. The power given by s 10(1) of the Act is not expressed to oblige a police officer to apprehend a person who fulfils the description there provided – a mentally ill person who has recently attempted to suicide or to harm themselves or some other person or is likely to do so. There may be circumstances where those indicia are present but an officer is nevertheless justified in not apprehending a person[178]. This may account for the choice implied by the word "may" in the sub‑section. The common law may not interfere with the exercise of a discretion[179]. No factors relevant to the exercise of such a discretion were said to be present in this case, if the power was enlivened.
[177](1985) 157 CLR 424 at 447.
[178]As the reasons of Gummow, Hayne and Heydon JJ observe at [82].
[179]See Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 575 [80] per McHugh J.
In Pyrenees Shire Council v Day[180] Brennan CJ said that the existence of a discretion to exercise a power is not necessarily inconsistent with a duty to exercise it[181]. The case to which his Honour referred, Julius v Lord Bishop of Oxford[182], whilst concerned with a matter of public law, the issue of a writ of mandamus, also involved the construction of a statutory provision which included the words "it shall be lawful" in connection with the exercise of power. The nature and object of a power, and the persons for whose benefit it is intended to be exercised, were matters which Earl Cairns LC considered might "couple the power with a duty" so as to oblige its exercise[183].
[180](1998) 192 CLR 330.
[181]Pyrenees Shire Council v Day (1998) 192 CLR 330 at 346 [23].
[182](1880) 5 App Cas 214.
[183]Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222‑223 and see also at 225 and 227, 229‑230 per Lord Penzance and 235 per Lord Selborne.
The discussion to this point may not suggest as inappropriate the cause of action for breach of statutory duty where a statute contains special measures directed towards a class of persons, where its evident purpose is their protection and when it may be inferred that the legislature expects that the powers will be used in particular circumstances, although exercise of a discretion may impact upon the lastmentioned feature. The reasoning of the majority in the Court of Appeal may be seen as directed to the majority of these considerations. It is not necessary to determine whether all such features were present in this case, but not for the reason that the plaintiff eschewed reliance upon such an action. Regardless of which cause of action was appropriate to this case both required the power in s 10(1) to have been available for the police officers' use. A consideration of that sub‑section, which was not undertaken by the majority, reveals that the power of apprehension was not enlivened.
The power of apprehension in s 10(1) required, critically, that there be an opinion, held by a police officer, that the plaintiff's husband was mentally ill when he was observed. Depending on the circumstances, a person who has attempted, or is likely to attempt, suicide may or may not satisfy the criteria of mental illness in s 8. The majority were not correct to hold that s 10 is to be read as equating a person who has attempted or may attempt suicide with a person who is mentally ill[184]. The terms of s 10 and the definition of mental illness suggest to the contrary. It is not a sufficient condition that an officer be aware that the plaintiff's husband had recently contemplated suicide. The purpose of s 10(1) is to allow officers lawfully to apprehend a person who appears to be mentally ill and is also at risk of harm. Its purpose is not to prevent suicide. In this regard the Act does not deviate from the common law view of autonomy.
[184]Kirkland‑Veenstra v Stuart (2008) Aust Torts Reports ¶81‑936 at 61,308 [64] per Warren CJ, Maxwell P agreeing.
The plaintiff's case was that the police officers should have formed the view that her husband was mentally ill, because it was apparent to them that he had taken steps towards suicide. An inquiry as to what the officers should have done may be relevant to whether there was a breach of a common law duty of care which has been found to exist. We are concerned with the anterior inquiry, whether a duty arose. From that point consideration may be given as to its content and to its breach. The latter issue, logically, does not answer those before it.
The question of whether there was a duty at common law in this case requires, as a minimum, a power given by the statute. This is because it is the existence of a power, to avert the risk of harm, which would set the police officers apart from persons generally and the common law rule that no action is required to protect others. It is the availability of such a power which may inform considerations as to the existence of a relationship and the ability to control the risk of harm which may be relevant to the existence of a duty. However, it is not the common law which determines whether the power is enlivened. It is the Mental Health Act which is the sole source of the power. That Act, by s 10, requires that a police officer hold an opinion that a person is mentally ill before the power of apprehension is available to the officer. In the present case neither officer held such an opinion. There was no issue raised as to the fact that such opinions were held[185]. It is difficult to see what such an issue might be, on the facts of this case. The opinions held by the police officers were considered and reasoned. The statute requires no more.
[185]As French CJ observes at [5].
Absent the holding of an opinion that the plaintiff's husband was mentally ill, the power to apprehend was not available. A condition necessary to the power did not exist in law[186]. It follows that, in the circumstances of this case, the statutory provisions supplied no relevant statutory power to which a common law duty could attach[187].
[186]Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at 1179 [73] per McHugh and Gummow JJ; 198 ALR 59 at 76; [2003] HCA 30.
[187]Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 609 [183] per Gummow and Hayne JJ.
We agree with the orders proposed in the reasons of Gummow, Hayne and Heydon JJ.