Re appeal on Kirkland: yes, it was heard by the High Court of Australia in

December (transcript available on austlii).

Hanna

On 1/24/09 12:01 AM, "Bill Madden" <bill_madden@optusnet.com.au> wrote:

> 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 Œsomething

> stupid¹ when asked about the tubing into the vehicle. He did not use the

> word Œsuicide¹, but it was apparent to the officers that suicide was the

> Œstupid¹ thing to which he was referring. The husband said further that

> he was in a Œloveless¹ 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

> husband¹s 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 Œsalient features¹ 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 Œgrave harm¹. 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 ³Things as

>> Things and Things as Wealth² (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

>>

>>

>>

>>  

>

**********

Hanna Wilberg LLB(Hons) BA (Otago) BCL MPhil (Oxford)

Lecturer, Faculty of Law

University of Auckland

Private Bag 92019, Auckland Mail Centre

Auckland 1142

Aotearoa New Zealand

Tel: +64 9 373 7599 ext 84232

Email: h.wilberg@auckland.ac.nz

Web: http://www.law.auckland.ac.nz/uoa/law/about/staff/hanna_wilberg.cfm