Dear Colleagues;
The High Court of Australia has, not unexpectedly, in today's decision in Stuart v Kirkland-Veenstra [2009] HCA 15 (22 April 2009) http://www.austlii.edu.au/au/cases/cth/HCA/2009/15.html over-turned a previous decision of the Victorian Court of Appeal, and ruled that police officers did not owe a duty of care to take into custody a man who later committed suicide. In essence the decision turned on the fact that the statutory provision empowering the police to take action required them to be of the opinion that he was mentally ill or about to commit suicide (the court emphasises that these are not the same question) but the officers concerned had not come to either view.
There is a single judgement by French CJ, one joint judgment from Gummow, Hayne & Heydon JJ which stresses the need to respect "personal autonomy" (cf [88]), and a joint judgement from Crennan & Kiefel JJ. As well as the duty of care issues (and interestingly the court did not, as some of us thought they might, address the general "police immunity" cases), there is a fascinating set of comments on the possibility of a breach of statutory duty action. Crennan & Kiefel JJ in particular seem to suggest that, if the statutory preconditions had been satisfied, they might have been prepared to see this as a possible BSD action, despite the provision being expressed as a "power" not a "duty". More on this, perhaps, when I've had a chance to read it in more detail.
Regards
Neil Foster
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
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