Teresa Klein v The State of New South Wales

[2005] NSWSC 1341

CITATION:	Teresa KLEIN & Ors v The State of New South Wales [2005] NSWSC 1341
HEARING DATE(S):	7 April 2005
JUDGMENT DATE :	23 December 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Hidden J at 1
DECISION:	Appeal dismissed. Leave to plaintiffs to file amended statement of claim.

CATCHWORDS:	Appeal from decision of Associate Justice - action for damages arising from police shooting - application to strike out statement of claim, summary dismissal - whether police owed duty of care - public policy considerations
LEGISLATION CITED:	Crown Proceedings Act 1988 Compensation to Relatives Act 1897 Supreme Court Rules
CASES CITED:	Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 Sullivan v Moody (2001) 207 CLR 562 Tame v New South Wales (2002) 211 CLR 317 Cran v State of New South Wales [2004] NSWCA 92 Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 Zalewski & Anor v Turcarolo [1995] 2 VR 562 Thompson v Vincent [2005] NSWCA 219 Air Services Australia v Zarb (Court of Appeal, unrep, 26 August 1998) Wickstead v Browne (1992) 30 NSWLR 1
PARTIES:	Teresa Klein (first plaintiff) Karl Erwin Klein (second plaintiff) Jacqueline Anne Soltys (third plaintiff) David Antony Klein (fourth plaintiff) Adrian Joseph Klein (fifth plaintiff) Heather Klein (sixth plaintiff) Christian Damian Klein (seventh plaintiff) The State of New South Wales (defendant)
FILE NUMBER(S):	SC 20544/2001
COUNSEL:	A Scotting (plaintiffs) J E Marshall SC (defendant)
SOLICITORS:	Hansons Lawyers (plaintiffs) I V Knight - Crown Solicitor

LOWER COURT JURISDICTION:	Supreme Court (Master)
LOWER COURT FILE NUMBER(S):	20544/2001
LOWER COURT JUDICIAL OFFICER :	Master Harrison

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Friday 23 December 2005

20544/2001 Teresa KLEIN & Ors v The State of New South Wales

JUDGMENT

1 HIS HONOUR: These proceedings arise out of a tragic incident in which a man was shot dead by police. The plaintiffs are the parents, the siblings and the sister-in-law of the deceased. The proceedings, seeking damages for negligence, are brought against the State of New South Wales, pursuant to s5 of the Crown Proceedings Act 1988. All the plaintiffs allege that they suffered psychological injury as a result of the incident. In addition, the father of the deceased seeks damages under the Compensation to Relatives Act 1897 for his own benefit and that of his wife.

2 The defendant sought an order, pursuant to Pt15 r26 of the Supreme Court Rules, that the statement of claim be struck out, or that it be stayed or dismissed. On 10 September 2004 Harrison AsJ (then Master Harrison) refused to make any of those orders and allowed the plaintiffs an opportunity to file an amended statement of claim: Klein & Ors v State of NSW [2004] NSWSC 837. The defendant has appealed against that decision and it is that appeal which is before me. The plaintiffs’ amended statement of claim was filed on 12 October 2004, and it was to that document that argument on the appeal was directed. Should the appeal succeed, the defendant asks that the statement of claim be struck out (Pt15 r26) and that the proceedings be dismissed (Pt13 r5). An alternative order is sought, to which I shall refer later.

The facts alleged

3 The statement of claim alleges that Paul Klein was shot dead by two police officers outside his grandmother’s home at Berkeley, on the south coast of New South Wales, on the night of 26 May 1998. It was known to police officers in the area that he had previously exhibited mental illness. At his grandmother’s home on the night in question he was in a disturbed state of mind. He had a number of knives on the floor next to him, became increasingly agitated, and behaved aggressively towards his mother, who was also at the house.

4 His mother contacted the police, asking them to attend the house to assist her son because of his disturbed behaviour. She told police that he was armed with a knife, was under the influence of drugs and was acting irrationally. Police officers arrived a little after 9pm, but Paul Klein’s behaviour continued to be disturbed. He refused to comply with directions given by the police officers, and set a fire in the house. He was in possession of two knives and was inflicting injury to himself.

5 Although it is not pleaded in the statement of claim, it is not in dispute that the fire brigade arrived at the premises but, because Paul Klein remained in and about the house with the knives, the firemen could not gain access to the premises to extinguish the fire. Whether this was the reason for the police officers shooting Mr Klein is not clear. The statement of claim alleges that he was shot a little before 11pm, but does not specify the circumstances in which that occurred.

6 These events were filmed and photographed by representatives of the media. Police in attendance did not prevent them from doing so.

Statement of claim

7 As I have said, the parents of the deceased seek damages under the Compensation to Relatives Act and all the plaintiffs seek damages for psychological injury. That psychological injury is said to have arisen from their being informed of the shooting and, as to most of them, from their seeing the body of the deceased at Wollongong Hospital. It is also said that all of them saw “graphic images” of the events leading up to the shooting on television and in the print media.

8 The claim for psychological injury is founded upon the assertion (in par 24 of the statement of claim) that “the police owed a duty of care to the plaintiffs to avoid negligently inflicting psychiatric harm on the plaintiffs by reason of the manner in which Paul Klein met with his death”. The particulars of negligence (par 26) are lengthy, and I shall not set them out. Counsel for the defendant helpfully placed them into four categories, as follows:

(1) “Structural negligence”, being allegations concerning the procedures and operations of the Police Service. For example, it is said that there was a failure properly to train and equip the officers who attended the scene to deal with mentally ill persons, and to “ensure proper and effective callout and deployment procedures” for the units best equipped to deal with such an emergency, such as the SPG, SPSU and police negotiators.
(2) “Localised negligence”, referring to acts or omissions of the police officers at the scene. For example, it is said that they failed to use fire hoses available at the scene to subdue the deceased, and that they inhibited communication with the deceased by shouting at him, illuminating the yard with floodlights and pointing their guns at him.
(3) “A hybrid of structural and localised negligence”, for example, the allegation of a “failure to make available or use alternative means of restraining Paul Klein in circumstances where the standard operating procedures provided that if shots were to be fired the police must shoot for the central body mass of the target.”
(4) “Media negligence”, described as a species of localised negligence. This relates to the allegation that the police failed to restrict access to the scene and the area immediately around it, thereby allowing representatives of the media to film and photograph the events.

9 In the course of argument, it was acknowledged by counsel for the plaintiffs that the Compensation to Relatives claim was deficient because no duty to the deceased himself was alleged. Counsel sought leave, if the statement of claim were to survive, to amend it accordingly. Whether that leave should be granted depends on the outcome of the principal argument of counsel for the defendant, to which I shall now turn.

The appeal

10 Counsel for the defendant submitted that, as a matter of public policy, no duty of care was owed to the plaintiffs or the deceased by any relevant member of the Police Service. He relied on a line of authority, commencing in England with Hill v Chief Constable of West Yorkshire [1989] 1 AC 53, and culminating in this country with the decisions of the High Court in Sullivan v Moody (2001) 207 CLR 562 and Tame v New South Wales (2002) 211 CLR 317, and of the Court of Appeal in Cran v State of New South Wales [2004] NSWCA 92. Counsel provided a helpful summary of these cases, citing relevant passages from the judgments, in written submissions. A sufficient encapsulation of the relevant principles is to be found in Cran.

11 The plaintiff in that case had been arrested for possession of a prohibited drug and was in custody. Subsequent analysis of the substance in his possession established that it did not contain the prohibited drug, and he was released. However, the analysis was delayed because the police and the office of the Director of Public Prosecutions failed to take steps which might have expedited it. The plaintiff sought damages for psychological injury arising from his being held in custody for longer than he need have been.

12 The Court of Appeal held that neither the police nor the Director of Public Prosecutions owed the plaintiff any relevant duty. In relation to the police, Ipp JA said at [71]:

…the recognition of a duty of care of the kind contended for by the appellant would tend to have an inhibiting effect on the discharge by the police of their central functions of investigating and preventing crime and apprehending offenders. It would in some cases lead to a defensive approach by police to their multifarious duties. It would introduce a risk that police would act so as to protect themselves from claims of negligence. The police would have to spend valuable time and use scare resources in order to prevent law suits in negligence against them. It would generate a great deal of paper to guard against the risks of law suits. The time and energy of the police would be diverted from concentrating on their prime functions. That would be likely to happen not only during the investigative and preventative processes, and the administrative tasks ancillary thereto, but also when the police are sued in negligence by aggrieved defendants. The police would be constantly enmeshed in an avalanche of civil proceedings and civil trials. That is a spectre that would bode ill for the efficiency of the police and the quality of the services they provide.

13 Sullivan v Moody (and the appeal which was heard with it, Thompson v Connon) arose from actions by the fathers of children who were suspected of having been sexually abused by them. The question was whether they were owed a duty of care by officers of the relevant government department charged with the responsibility of investigating those allegations. The High Court held that there was not a duty of the kind alleged, as it would not be compatible with the officers’ public responsibilities. After referring to the relevant statutory scheme, which required the officers to treat the interests of children as paramount in investigating and reporting upon allegations of abuse, the Court said at [62]:

It would be inconsistent with the proper and effective discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who were suspected of being the sources of that harm. The duty for which the appellants contend cannot be reconciled satisfactorily, either with the nature of the functions being exercised by the respondents, or with their statutory obligation to treat the interests of the children as paramount. As to the former, the functions of examination, and reporting, require, for their effective discharge, an investigation into the facts without apprehension as to possible adverse consequences for people in the position of the appellants or legal liability to such persons. As to the latter, the interests of the children, and those suspected of causing their harm, are diverse, and irreconcilable.

14 Drawing upon that passage, counsel for the defendant in written submissions sought to dispose of any suggestion of a duty to the plaintiffs (or, indeed, to the deceased himself) in this way:

The interests of the relatives of Paul Klein cannot be reconciled readily with the statutory obligations of the police, which include obligations to establish a safer environment by reducing violence, crime and fear and to protect property from damage. Plainly, using deadly force against Paul Klein was what led to the alleged nervous shock of the plaintiffs, yet Paul Klein had created an environment of violence, crime and fear and, by setting a fire, was in the process of damaging property. By arming himself with two knives, Paul Klein necessarily inhibited fire fighting operations and thus increased the risk of the fire he had started spreading throughout his grandmother’s house and to neighbouring properties.

15 The reasons of public policy for not imposing the duty of care for which the plaintiffs contend upon the police officers dealing with the emergency at Berkeley on the night in question are apparent from the observations of Ipp JA in Cran quoted above. However, those observations are also founded upon the recognition in the authorities that the same public policy considerations bear upon operational and administrative decisions made by senior police officers, including provision for training and the allocation of resources. So much is apparent from Hill (supra), per Lord Keith of Kinkel at 59 and Lord Templeman at 64–65, and from Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335, per Steyn LJ (as he then was) at 349–350. The latter was a case dealing with the activities of the Crown Prosecution Service, but the statements of principle in it are relevant for present purposes and were referred to in Cran. Santow JA also touched on the question in Cran at [48] ff.

16 That being so, counsel for the defendants submitted, the authorities put paid to the claim based upon “structural” negligence as much as that based upon “localised” negligence. It was argued that, there being no relevant duty of care to the plaintiffs or to the deceased, the statement of claim discloses no tenable cause of action.

17 The principles expressed in the cases are couched in broad terms, and would seem to embrace all aspects of the exercise of police duties. The facts giving rise to the cases vary widely. I have already referred to the factual basis of Cran. In Hill the complaint was that police had failed to arrest a serial killer before he had killed the plaintiff’s daughter. In Sullivan v Moody it was the adequacy of the investigation of complaints of sexual abuse of children which was in question. In Tame (supra) the action was founded upon an erroneous entry in a police record that the plaintiff, who had been involved in a traffic accident, had a blood alcohol level over the legal limit. There were a few other cases cited by counsel for the defendant, to which it is not necessary to refer.

18 However, counsel for the plaintiff submitted that the various statements of principle must be understood in the light of the facts of the cases in which they were made, and that not every action of a police officer in the discharge of his or her duty is immune from liability in negligence. He relied, in particular, upon the decision of the appeal division of the Supreme Court of Victoria in Zalewski & Anor v Turcarolo [1995] 2 VR 562.

19 There is some similarity between the facts of that case and the present case. Put shortly, the plaintiff was injured when two police officers shot him. He had a history of psychiatric illness, and on the day in question he had retired to his bedroom in a depressed mood with a shotgun. His father asked him to give up the gun, but he refused and asked his father to leave the room. The father called the police. Two police officers arrived, approached the bedroom and asked the plaintiff to come out. When he refused, the officers entered the bedroom, pointed their guns at the plaintiff and demanded that he drop the shotgun. Believing that the plaintiff was taking aim at one of them with that weapon, the two officers shot him.

20 The prudence of the actions of the police officers had been subjected to close scrutiny at the trial. Relevantly for present purposes, the Court upheld the trial judge’s rejection of a defence asserting immunity from liability for negligence on the grounds of public policy because the officers were involved in the investigation of a complaint by the father: see the judgment of Hansen J, with whom Brooking & JD Phillips JJ agreed, at 574 ff. His Honour referred to a passage from the speech of Lord Keith in Hill at 63 which squarely raised the considerations of public policy discussed by Ipp JA in Cran. He went on (at 576–578) to consider several other English cases, some of them before Hill and some after it, in which the issue was raised. It is unnecessary to examine those cases for present purposes.

21 Having done so, his Honour said (at 578):

The English authorities referred to do not doubt that police officers may be liable in negligence for acts or omissions occurring in the course of their duties. As a matter of principle that must be correct… We were informed there is no Australian authority which upholds an immunity, at least at an appellate level, and that a public policy immunity has not been recognised in Canada. That is not to deny, though, that in an appropriate case considerations of a public policy nature may exist which ought to be held to exclude liability. But whether that is so and whether such exclusion will be of a duty of care by reason of the relationship or other factors which may affect the existence of a duty of care, or by reason of a separately identified principle of public policy will have to be considered in an appropriate case. When the matter does require judicial determination, the policy will have to be clearly identified and the limits of the application of any such policy fully considered…

22 His Honour concluded (also at 578) that it was open to the jury at trial to have found that one of the police officers, in particular, had “acted impetuously, without due inquiry and reflection, in disregard of police instructions…”. However, the passage quoted above reminds us that the case was decided before the important Australian decisions upon which counsel for the defendant relied in the present case.

23 That said, after I had reserved judgment in the appeal, the State Crown Solicitor very properly forwarded to me a recent decision of the Court of Appeal in which reference is made to the Victorian case: Thompson v Vincent [2005] NSWCA 219. The facts of that case, and the issues raised by them, are quite different from the present case. However, in the course of dealing with one of the grounds of appeal, Mason P said (at [154]), “This is not to say that police may never act in such a way as to assume a duty of care in a particular task….” In support of that proposition his Honour cited Zalewski v Turcarolo and two of the English cases to which Hansen J had referred. The observations are obiter, and it does not appear that the matter was fully argued. Nevertheless, the correctness of Zalewski was not questioned.

24 This lends some support to the argument of counsel for the plaintiffs that the question whether considerations of public policy militate against a duty of care must be determined in the light of the facts of the individual case. What might set Zalewski and the present case apart from the other authorities is that the police were not engaged in an investigation in the ordinary sense. Rather, their task was to prevent a possible breach of the peace and to restrain a mentally disturbed person from harming himself or others. Whether that is a relevant distinction is not immediately apparent.

25 However that may be, it cannot be said that the proposition for which counsel for the plaintiffs contends is unarguable. The principles governing an application to strike out or dismiss a statement of claim are familiar. They were reviewed by Rolfe AJA in Air Services Australia v Zarb (Court of Appeal, unreported, 26 August 1998). Among the cases to which his Honour there referred was Wickstead v Browne (1992) 30 NSWLR 1, in which Kirby P observed (at 5):

Common experience teaches that it is usually more efficient and just to consider the viability of a cause of action when the facts said to support it are adduced and the suggested action can be judged with a full understanding of all relevant evidence. Testimony gives colour and content to the application and development of legal principle.

26 Those observations are apt in the present case because, as I have said, the precise circumstances in which the deceased was shot are far from clear. It appears to me that the case raises issues of duty of care and of negligence, both “localised” and “structural”, properly to be determined at a trial.

27 In the course of argument, a subsidiary question arose whether the particularised “media” negligence was said to arise from a duty of care separate from that pleaded in par 24 of the statement of claim, referred to above. It became clear that it was not. Counsel for the plaintiffs abandoned one of the particulars of negligence directed to that issue: par 26(p). As I understand it, however, he continues to rely upon the unimpeded presence of the media and the subsequent publicity in relation to the claim for psychological injury. It was this issue which gave rise to the alternative order sought in the notice of appeal, to which I referred earlier. It appears to me that the course of argument rendered such an order superfluous. In any event, insofar as it is based upon the primary argument that no duty of care was owed, I would not make it.

28 The appeal is dismissed. The plaintiffs should have the opportunity to amend the statement of claim to cure the deficiency in the Compensation to Relatives claim to which I have earlier referred. I shall consult the parties about the appropriate order to be made for that purpose and, if necessary, I shall hear argument on costs.

**********