More recently in Australia there was a decision of the Victorian Court

of Appeal, which may be of interest. I seem to recall it is to go on

appeal to the High Court of Australia.

/Kirkland-Veenstra v Stuart/ [2008] VSCA 32

The claim was brought by the widow of a man who committed suicide

against two police officers and the State of Victoria alleging failure

to exercise their power under the Mental Health Act 1986 (Vic) s 10 to

detain the husband, thereby protecting him from reasonably foreseeable

injury, this being his suicide.

The husband knew that he was about to be served with criminal charges in

relation to alleged fraudulent business transactions. At about 5.40 am

on the day he was to be served, the police officers were undertaking a

routine patrol when they observed a car parked at a beachside public

carpark. The car had a tube running from the exhaust of the car through

to the rear window. The officers approached the vehicle and spoke to the

husband. He had been sitting in the carpark for two hours before the

police arrived and confirmed that he had contemplated doing ‘something

stupid’ when asked about the tubing into the vehicle. He did not use the

word ‘suicide’, but it was apparent to the officers that suicide was the

‘stupid’ thing to which he was referring. The husband said further that

he was in a ‘loveless’ marriage and was writing these thoughts to his

mother before the police officers had arrived. He volunteered that he

was going to return home and discuss matters with his wife. The husband

described himself as an intelligent person and said that there were

other options open to him other than that which he had been contemplating.

He showed no signs of mental illness, being rational and cooperative. He

had removed the hose from the exhaust and placed it in the vehicle,

apparently of his own accord. However, he would not allow the police

officers to look at what he had written and the officers did not

consider that they had sufficient power to seize the notes.

After checking the vehicle and the details supplied by the husband, the

police officers offered to arrange medical support or contact the

husband’s family. However, he declined that offer and the police

officers allowed him to drive away. The husband returned home where he

spoke with his wife later that morning. She went out, leaving him alone,

and in her absence he committed suicide by asphyxiation within the

grounds of his home, achieved by securing a hose from the exhaust of his

vehicle and starting the engine.

Warren CJ concluded (at [56]) that while the approach to determining

whether a duty of care exists in a novel case has been expressed in a

variety of ways, the dominant, overarching approach is that of the

multi-factorial or ‘salient features’ approach. Adopting that approach,

she held that the police officers owed the husband a common law duty of

care that arises independently of statute. Thus, the duty arose upon the

realisation that the husband was contemplating suicide and was at risk

of ‘grave harm’. The class of persons to whom the duty was owed was that

in clear and obvious contemplation of suicide, and the scope of the duty

extended to the assessment of the situation and possibly the provision

of assistance,as provided for in the Mental Health Act 1986 (Vic): see [76].

Maxwell P emphasised the special nature of the function conferred on the

police officers, which was not a policing function but rather a power to

assist in the protection of mentally ill people. He emphasised the

absence, in the circumstances, of a conflict on the facts between the

existence of a duty and the proper performance of statutory functions.

Note however that the decision concerned only duty, not breach, which

remained for consideration later.

Regards

Bill Madden

Robert Stevens wrote:

> Hanna wrote:

>

>  

>> There is a case a little bit like Robert's hypothetical facts in

>> Australia,

>> but it was decided on the basis of the defensive practice policy concern

>> (from Hill v Chief Constable of West Yorkshire) rather than the conflict

>> concern in D (but I think the two concerns are related): in NSW v Klein

>> 2006

>> NSWCA 295, if I'm not mistaken the court held that police owed no duty of

>> care when attending an armed offenders call-out where a mentally disturbed

>> person was threatening himself and his family and was eventually shot by

>> police.

>>    

>

> Thanks to Hanna for this case (which is here

> http://www.austlii.edu.au/au/cases/nsw/NSWCA/2006/295.html ).

>

> It is questionably reasoned (the court not seeing any differnce between

> the police failing to protect a member of the public from harm (eg Hill)

> and their negligently inflicting injury upon someone), but it

> (fortunately!) doesn't stand for the proposition that the police in

> carrying out their public duties owe no duty to the victim not to

> carelessly shoot him in the head. The claim was brought by relatives of

> the deceased for psychiatric injury suffered as a result of the death, and

> the conclusion was that they are owed no duty of care with respect to

> their psychiatric injury.

>

> Geoff asked:

>

> "Does it really make sense to keep a separate notion of what can be done

> under the common law and the HRA?"

>

> Absolutely it does. The HRA is about the rights we have against the State

> that it secures certain goods for its citizens (eg education). Fortunately

> my next door neighbour has no equivalent right against me at common law

> that I teach him about promissory estoppel.

>

>

> Geoff also asked:

>

>

> "Their Lordships seem very quick to accept that the licence was a

> property interest under the ECHR, why then is it not a property interest

> for the purposes of the common law?"

>

> Because we use "property" in different senses (see eg B Rudden “Things as

> Things and Things as Wealth” (1994) 14 OJLS 81).

>

> A commercial lawyer, which is what I purport to be, commonly uses

> 'property' to mean items of wealth. So all of a company's shares and its

> receivables are 'property' in this sense.

>

> However, when we speak of property in the sense of 'rights in rem' what we

> mean are rights to things exigible against all others. My right to be paid

> my salary at the end of the month is an item of wealth, but that right is

> not exigible against you. In Trent, there was obviously no violation of a

> property right to a thing exigible against all others, so no such tort.

>

> Under the ECHR, "property" is, wholly unsurprisingly, given a wider

> meaning than "rights in things". This is one example of the importance of

> " a separate notion of what can be done under the common law and the HRA."

>

> [What I, and many others, mean by "pure economic loss" is loss which is

> not consequent upon the violation of a right. So, if you defame me by

> calling me a paedophile so that I lose my job, I can claim for my loss

> consequent upon the infringement of my right not to be defamed. Where my

> loss is not so consequent, where it is 'pure', it is irrecoverable. I know

> that some others define 'pure economic loss' in a different way, but I do

> not myself consider such other usages to be satisfactory.]

>

> Rob

>

>

>

>