The appeal in Kirkland-Veenstra was heard in December last year by the HCA and is reserved.

Transcripts here:

http://www.austlii.edu.au/au/other/HCATrans/2008/397.html

http://www.austlii.edu.au/au/other/HCATrans/2008/398.html

Regards

Michael

-----Original message-----

From: Bill Madden bill_madden@optusnet.com.au

Date: Fri, 23 Jan 2009 21:01:22 +1100

To: Robert Stevens robert.stevens@ucl.ac.uk

Subject: Re: [Fwd: Negligence of Public Authority in House of Lords]

> 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

> >

> >

> >

> >  

>

>

>