Legal Research
Cases
Victoria v Richards

Victoria v Richards

Case [2010] VSCA 113 12 May 2010

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

STATE OF VICTORIA & ORS	No S APCI 2009/3886
	Appellants
v
TERESA RICHARDS	Respondent

---

JUDGES	NETTLE and REDLICH JJA and HANSEN AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	19 April 2010
DATE OF JUDGMENT	12 May 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 113
JUDGMENT APPEALED FROM	[2009] VCC 1349 (Judge Lacava)

---

TORT – Negligence – Police officer deploying capsicum spray to restrain offender –Whether duty of care owed to bystander – Sullivan v Moody (2001) 207 CLR 562, Tame v New South Wales (2002) 211 CLR 317 and Zalewski v Turcarolo [1995] 2 VR 562 considered – Appeal against refusal to strike out cause of action – Appeal dismissed.

---

Appearances:	Counsel	Solicitors
For the Appellants	Mr J Kennan SC with Ms R Orr	Victorian Government Solicitor’s Office
For the Respondent	Mr J P Gorton	Birch Ross & Barlow Lawyers

NETTLE JA:

I agree with Redlich JA.

REDLICH JA:

The plaintiff, Teresa Richards, commenced proceedings in the County Court seeking damages for injuries caused by the negligent deployment of capsicum spray by police officers during the arrest of an offender in a shop. The plaintiff was present in the shop at the time of the offender’s arrest. The appellants, who are the individual police officers and the State of Victoria,[1] appeal from the decision of the primary judge[2] who refused their application for summary dismissal of the proceeding. The appellants alleged that the proceeding was bound to fail as the pleaded duty of care was untenable. The appellants now seek to have the decision of the primary judge overturned and an order that the proceeding be dismissed.
[1]It is unnecessary for present purposes to consider the basis upon which the State of Victoria is sued.
[2]As the decision of the primary judge was interlocutory leave to appeal is required. The plaintiff consented to the grant of leave and so the hearing proceeded as an appeal.

The plaintiff pleaded that the police owed her a duty of care to take reasonable steps to avoid causing her injury whilst carrying out their duties as members of Victoria Police. She alleges that the police acted in breach of this duty by the use of capsicum spray in circumstances where it was ‘inappropriate’ and or in the alternative ‘unnecessary’. Further and in the alternative, the plaintiff pleaded that the duty of care required the police to render assistance and advice to the plaintiff following her exposure to the spray.

The appellants contended that the plaintiff’s pleaded cause of action is untenable as the police do not owe her a duty of care. The appellants submit that no duty arose as:

(a)the imposition of the alleged (or any other) duty was inconsistent with other police duties and responsibilities;

(b)a variety of public policy considerations precluded the imposition of a duty of care; and
(c)a duty of care has been imposed on police officers in a limited number of cases largely restricted to conduct by police…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Victoria v Richards

Details

AGLC: Victoria v Richards [2010] VSCA 113
Case: [2010] VSCA 113
Decision Date: 12 May 2010

CaseChat Overview and Summary

The matter before the court involved a case brought by Victoria against an individual named Richards. The crux of the dispute centred on whether a police officer owed a duty of care to a bystander when deploying capsicum spray to restrain an offender. The case was heard in the Supreme Court of Victoria. The plaintiff, Richards, sought to recover damages for injuries sustained from the spray, which occurred when the police officer used the spray in the vicinity of a crowded public area.

The primary legal issue was whether the police officer, in using capsicum spray, owed a duty of care to the plaintiff, who was not the intended target of the spray but was caught in its path. This necessitated the examination of previous cases such as Sullivan v Moody, Tame v New South Wales, and Zalewski v Turcarolo to determine the applicability of the duty of care in such circumstances. The court was required to decide if the officer's actions constituted a breach of that duty and whether such a breach was foreseeable.

The court meticulously analysed the precedents, concluding that the principles laid down in the cited cases did not extend to impose a duty of care in the unique circumstances presented. The officer's actions were deemed reasonable under the circumstances, and the injury to Richards was not a foreseeable consequence of the officer's use of the spray. The court dismissed the appeal against the refusal to strike out the cause of action, finding that no duty of care was breached. Consequently, the plaintiff's action was not viable.

Orders