Opening the door on police’s duty of care
This article, ‘Opening the door on police’s duty of care’, first appeared in Precedent, the journal of the Australian Lawyers Alliance (ALA), issue 153, July/August 2019, pp22-6. It has been reproduced with the kind permission of both the author and the ALA.
‘The general law of tort applies as much to the police as to anyone else.’ 1
The common law is unclear as to when the police owe a duty of care to protect the public from harm or injury. However, there has also never been an express denial that the police may owe a duty of care. The recent cases of Smith v State of Victoria (Smith)2 and Fuller-Wilson v State of New South Wales (Fuller-Wilson)3 are a step towards clarifying the state of law in this area.
Since the UK's Hill v Chief Constable of West Yorkshire (Hill), 4 cases alleging that police owe the public a duty of care have often not survived an application for summary dismissal (strike out). Hill created the police ‘doctrine of immunity’, being that police do not owe a duty to members of the public generally to protect against harm caused by criminal conduct.5
Both Smith and Fuller-Wilson are judgments on summary dismissal applications. As such, neither has gone so far as to establish a novel duty of care owed by police. Yet both judgments diverged from the trend of authority before them in finding that it was open to the plaintiffs to argue that police owed a duty of care in both sets of circumstances.
SMITH v STATE OF VICTORIA  VSC 475
The plaintiffs in this application were a mother and three children. They were the victims of multiple acts of family violence by the children’s father over the course of a decade.6 The plaintiffs allege that Victoria Police officers owed the family a duty of care and that police subsequently breached that duty, causing the plaintiffs psychological harm.7 The plaintiffs also allege that Victoria Police acted contrary to its obligations as a public authority under the Victorian Charter of Human Rights and Responsibilities Act 2006 ('the Charter') and in doing so breached the family’s human rights as protected by the Charter.8
The plaintiffs’ case argued that a duty of care is owed to a person by a police officer in the particular circumstances and the current case law does not deny the potential existence of this duty.9. The plaintiffs contended that the law in Australia regarding police officers’ duty of care is in a state of development.
The defendant alleged that the plaintiffs’ claim should be struck out because it had no prospect of success10 or, in the alternative, sought a partial strike out of the pleadings, claiming no cause of action had been disclosed in those parts.11 The defendant opposed the plaintiffs’ arguments regarding the existence of the alleged duties of care and claimed that those duties cannot arise at law.
The defendant’s application was dismissed by Dixon J of the Supreme Court of Victoria. His Honour found that the plaintiffs’ claims regarding the duty of care may be arguable once the facts have been established on close analysis at trial.12 In dismissing the defendant’s application, His Honour referred to Hill’s ‘doctrine of immunity’.
Justice Dixon referred to salient features and reasonable foreseeability in respect to the relationship between the plaintiffs and the defendant, as outlined in Kuhl v Zurich Finance Services Australia Ltd.13
The plaintiffs relied on the relationship of proximity that existed between the police officers and the plaintiffs in pleading that police had a duty to prevent breaches by the children’s father of several Intervention Orders (IVOs).
Several other salient features were pleaded by the plaintiffs in reference to the duty of care owed, including: 14
- The officers’ control over compliance with the IVOs;
- The reasonable foreseeability of harm to the plaintiffs if the IVOs were breached;
- Victorian Family Violence policies stipulating that Victoria Police would protect people affected by family violence, enforce compliance of IVOs and comply with the policies, such as the Family Violence Code of Practice, the Victoria Police Manual and Family Violence Procedures and Guidelines;
- No countervailing policy reasons that negate the imposition of a duty of care on police to prevent breaches of IVOs; and
- Police officers’ knowledge of the repeated acts of violence and breaches of IVOs.
The defendant argued that the plaintiffs’ pleadings were too broad, and referred to the plaintiffs’ submissions that ‘every’ police officer owed a duty to ‘every’ affected family member named in ‘every’ extant IVO.
The plaintiffs retorted that the duty was owed by police officers based at stations local to the plaintiffs’ homes, by reason of their status as family violence victims, or alternatively as victims of offenders known to police.15 The plaintiffs argued that on these specific facts, a special relationship existed in which the alleged duties arose. Justice Dixon dismissed the defendant’s arguments in this regard.
The defendant argued that the principles from Hill applied, and this was not an exceptional case in which a duty could be found. The defendant relied on extensive case law upholding this principle.
The defendant also contended that Australian courts have limited the imposition of such a duty on police officers to when the harm is caused to a third person by an officer’s conduct, or towards a person in police custody.
Justice Dixon noted that as the existence of a novel duty of care is alleged the court must apply the salient features approach, per Crimmins v Stevedoring Industry Finance Committee.16 His Honour said that this involves:
'A close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor… affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.'17
The plaintiffs refuted the defendant’s reliance on Hill, arguing that the salient features of proximity, knowledge and control present in Smith were absent in Hill. One example provided in the plaintiffs’ submissions was that the proposed duty argued in Hill applied to the public at large, and not only to the plaintiff. Justice Dixon accepted that even if Hill was good law in Australia,18 Smith is distinguished from Hill.
The plaintiffs relied upon the dissenting judgment in Michael v Chief Constable of New South Wales Police (Michael),19 which held that proximity was a determinative factor. The submissions also relied on Allsop ACJ’s judgment in State of New South Wales v Spearpoint (Spearpoint),20 in which His Honour outlined pertinent salient features, such as foreseeability, degree of harm, vulnerability, reliance, assumption of responsibility and policy. The plaintiffs argued that based on Spearpoint’s authority, Smith cannot be summarily dismissed.
Justice Dixon accepted that control was a salient feature in this case. His Honour stated that the relevant focus of the control factor concerned control of the risk, rather than the offender. Justice Dixon also stated that control is a fact-sensitive feature to be determined on the evidence.21 The plaintiffs pointed to several instances over the years, and a particular one in which police officers drove the father and dropped him off very close to the prohibited zone identified in one of the IVOs. The plaintiffs submitted that this was an unequivocal example of the officers’ control. The plaintiffs’ vulnerability was to be substantiated by legislation and policies recognising the vulnerability of those affected by family violence.22
The plaintiffs submitted that the defendant was relying on the potential of conflicting police duties, as raised in Hill, without identifying what the inconsistent duties actually are.23 The plaintiffs argued the duties in Smith were in line with the priorities in the relevant legislation and policy, such as the applicable legislation governing family violence which aims to maximise the safety of those affected by family violence, and that there was no actual conflict for police in the circumstances.
The plaintiffs referred to the observations of Redlich J in State of Victoria & Ors v Richards.24 His Honour noted that such duties should be denied only where the imposition of the duty of care created inconsistent obligations in a real sense. In addition to the legislation governing family violence in Victoria, the plaintiffs relied in their pleadings on Family Violence Codes of Practice, the Victoria Police Manual and Family Violence Procedures and Guidelines.
FULLER-WILSON v STATE OF NEW SOUTH WALES  NSWCA 218
The plaintiffs in this matter were the widow and two daughters of deceased man, Keith Wilson. Mr Wilson was killed in a truck collision on 18 June 2013. In February 2014, the plaintiffs attended the scene of the accident. They discovered parts of Mr Wilson’s body at the site, including parts of his foot and ankle, and clothing containing Mr Wilson’s melted remains.25
The plaintiffs subsequently brought proceedings against the State of New South Wales, alleging that they suffered psychological injuries as a result of the police’s negligence in failing to remove all remains and personal effects of the deceased from the accident site, and failing to warn the family that there might be remains on site. 26
The plaintiffs argued that the State was liable for a tort committed by a police officer pursuant to s9 of the Law Reform (Vicarious Liability) Act 1983 (NSW).27
The defendant in its application for summary dismissal contended that the plaintiffs’ case did not disclose an arguable cause of action. The primary judge, Hatzistergos DCJ, agreed that the police did not owe the duty of care pleaded to the plaintiffs in the circumstances and dismissed the proceedings.28
The plaintiffs appealed, with the issue being whether the pleadings failed to disclose a reasonable cause of action such that a summary dismissal was warranted.
The Court found that if a party applies to dismiss a claim summarily on the basis that the purported duty of care gives rise to conflicting obligations, the party must show that:
- the particular statutory regime has been properly identified; and
- an affirmative finding of conflicting claims of obligations has been made on the facts pleaded.
Duty of care
The Court first assessed whether the primary judge had correctly applied the principles in considering the nature of the duty of care. In doing so, it grappled with the following principles:
- police functions;
- assumption of responsibility;
- liability for conduct of third parties; and
- the current state of Australian authorities.
The starting point for the Court was whether the police, in cleaning up the accident site and removing Mr Wilson’s body, were exercising a statutory power. 31
The Court carefully considered the actions being undertaken by the police in removing the body vis-à-vis several pieces of legislation that conferred functions and powers on New South Wales police.32 The Court considered what powers and obligations arose for police under each of those laws and were relevant to the police’s conduct here in question.
Notably, in the course of assessing the legislation, Basten JA commented on s14 of the Police Act 1990 (NSW), which reads:
‘[i]n addition to any other functions, a police officer has the functions conferred or imposed on a constable by or under any law (including the common law) of the State’.
His Honour noted the above provision ‘may provide a reasonable argument that all police functions have a statutory basis’.33 He also went on to comment that it is ‘not possible to identify with precision the scope of duties of a constable under the general law, as adopted by s14 of the Police Act’.34
Assumption of responsibility
The voluntary assumption of responsibility is a ‘recognised exception’ to the common law doctrine that there is no duty to protect persons against harm caused by a third party.35
The plaintiffs in Smith argued before Dixon J that the police had assumed responsibility for the plaintiff and her children, and that the plaintiffs had relied on that assumption.
Smith drew on the case of Spearpoint, as too did the primary and appellate judges in Fuller-Wilson. The Court of Appeal in Fuller-Wilson ultimately found that there was ‘no suggestion of representation or reliance’ and as such, ‘no basis to impute a duty of care owed to specific individuals based on an assumption of responsibility’.36
Liability for third party conduct
The appellants also relied on the exception of ‘control’ to the general principle of third party tortious liability.
The appellants alleged that after the accident occurred, the police took control of the situation and subsequently while in control of that situation were careless in their conduct regarding the collection of Mr Wilson’s remains. The appellants alleged that their psychological injuries flowed from this.
The Court considered the case of Dorset Yacht Co Ltd v Home Office (Dorset)37 with respect to the control exception.38 The facts of Dorset differed significantly, and the Court ultimately found that the appellants’ submissions as to the control exception were arguable, though not decisive.39
The Court also acknowledged that the question of duty of care had not before been considered in an Australian case with facts analogous to those before it here. 40
Current case law
The Court considered the case’s relevant statutory framework to be an interplay of sections of three pieces of legislation: s213 of the Police Act, the Law Reform (Vicarious Liability) Act and ss30 and 43A (among others) of the Civil Liability Act 2002 (NSW).
Consideration must be given to individual officers’ immunity pursuant to the Police Act, and the liability accepted by the State regardless of that immunity, pursuant to the Law Reform (Vicarious Liability) Act and the Civil Liability Act.
The Court noted that there was a distinct lack of analogous case law in Australia, then turned to assess the international jurisprudence. The Court considered the cases of Scarpari v Milwaukee County,41 Mason v Westside Cemeteries Ltd42 and In Re Organ Retention Group Litigation,43 as well as considering the development of the Hill doctrine throughout English case law. 44
Interestingly, the Court of Appeal found that the primary judge’s dismissal of the proceedings was in accordance with current authority. The Court also found, however, that it was open to the appellants to argue that the common law in Australia should recognise a wider scope of liability.45 It therefore flowed that the Court found there was ‘no doubt’ that the appellants had an arguable case that the duty pleaded here has no actual inconsistency with police’s exercise of a public function or power.46
The Court commented that there is a gap within High Court authority on this point of duty and that, as such, summary dismissal was not warranted, despite the majority of authority at the intermediate court level weighing in favour of the respondent.47
IMPACT OF THE CASES
The judicial assessment in both cases reinforces that the law is not settled, but that there is no denial that duty of care could be owed by police to the public in certain circumstances.
Not only have these cases opened the door to a potentially novel duty of care owed by police being established, but they have indicated useful parameters as to what such a duty may look like.
Given that the cases were decided independently of one another, the judgments are strikingly consistent. While the significance of this should not be overstated, it is nevertheless a noteworthy indication that perhaps the judiciary, in Victoria and New South Wales at least, is eager for clarity on this area of law.
The judges in both cases were firmly of the view that the duty will not arise other than in exceptional circumstances. Both were also unwavering on the point that if a party seeks to rely on the ‘conflicting duties’ argument, these conflicts must be established as actually existing. Fuller-Wilson went a step further than Smith in laying out the two-tiered test required to make out conflict.
Justice Dixon in particular gives proper consideration to current family violence policies and legislation, and assesses these laws and policies as consistent with police’s other duties. Fuller-Wilson unknowingly echoed the same points, and it can thus be sensibly extrapolated that these cases have raised the threshold for defendants seeking to establish the ‘conflicting duties’ defence per the Hill doctrine.
Fuller-Wilson reiterated that Hill’s doctrine of immunity only applied in a limited sense and indeed was only intended to apply in a limited sense. This clarity is helpful for plaintiffs seeking to establish a novel duty of care against police.48 That Hill has limited application was expressly laid out by Lord Reed in Robinson v Chief Constable of West Yorkshire Police (Robinson).49 However, Fuller-Wilson acknowledges that Robinson would not necessarily apply to the Australian approach which, as per Graham Barclay Oysters, requires careful consideration of the statutory regime.50 Robinson should be accepted in Australia on a narrower basis and as such should be applied carefully by plaintiffs.
The Court’s finding in Fuller-Wilson particularly – that the trial judge had made a decision in accordance with the current common law, but that it should nevertheless be overturned – is good insight into the mindset of the judiciary. The overarching tone of both judgments is that the law is ripe for change.
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