Stuart v Kirkland-Veenstra (2009 ) 237 CLR 215 PDF

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237 CLR 215]

STUART V KIRKLAND-VEENSTRA

STUART AND ANOTHER.. ............................... DEFENDANTS,

215

APPELLANTS;

AND

KIRKLAND-VEENSTRA AND ANOTHER...... PLAINTIFF AND DEFENDANT,

RESPONDENTS.

[2009] HCA 15 ON APPEAL FROM THE SUPREME COURT OF VICTORIA

Negligence — Duty of care — Police — Statutory power to apprehend person who appeared to be mentally ill and police offıcer had reasonable grounds to believe likely to commit suicide — Offıcers did not exercise power — Whether a person who attempts suicide mentally ill — Whether duty of care to prevent suicide — Public duty — Mental Health Act 1986 (Vic), ss 8(1A) “mental illness”, 10(1), (1A). In the early morning two police officers observed a man sitting alone in a car in a secluded parking area. A hose ran from the exhaust pipe to the interior. The engine was not running. The officers questioned the man for about fifteen minutes. He told them that he had thought about doing something stupid but had changed his mind. He said he wished to return home to talk to his wife. He rejected offers to contact his wife or a doctor. He was otherwise co-operative and appeared to the officers to be rational. He removed the hose and was allowed to leave. A patrol duty sheet signed by the officers noted that the man had been contemplating suicide and referred to him as “depressed”. Later that day the man committed suicide at his home by sitting in his car with a hose from the exhaust and the engine running. Section 10(1) of the Mental Health Act 1986 (Vic) empowered a member of the police force to apprehend a person who appeared to be mentally ill if the member had reasonable grounds for believing that the person was, amongst other things, likely to attempt suicide. Section 10(1A) stated that, for the purposes of s 10(1), a member of the police force was not required to exercise any clinical judgment as to whether a person was mentally ill but might exercise the powers conferred by the section if, having regard to the person’s behaviour and appearance, the person appeared to the member to be mentally ill. Section 8(1A) defined “mental illness” as a medical condition characterised by a significant disturbance of thought, mood, perception or memory. The man’s wife sued the police officers and the State of Victoria for breach of a duty to take reasonable care to protect his and her health and safety by failing to exercise the power to apprehend her husband and to arrange for him to be examined under s 10. Held, (1) that the police officers owed no duty of care as alleged.

HC of A 2008-2009 MELBOURNE Dec 3, 4 2008 CANBERRA April 22 2009 French CJ, Gummow, Hayne, Heydon, Crennan and Kiefel JJ

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Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, applied. Pyrenees Shire Council v Day (1998) 192 CLR 330, distinguished. (2) That neither s 10 of the Act nor the common law equated an attempt to commit suicide with being mentally ill. Per French CJ. The relevant power of apprehension conferred by s 10 is subject to two conditions. The first requires a person to appear to a police officer to be mentally ill. The second requires the officer to form a belief, based on reasonable grounds, that the person is likely, by act or neglect, to attempt suicide. Neither condition was satisfied by the facts and no duty of care in the exercise of that power could arise. Per Gummow, Hayne and Heydon JJ. The duty alleged to be owed by the police officers to the man was a duty to prevent him from harming himself, not a duty to prevent harm to a third party. The duty would exist regardless of whether the person threatening self-harm was in fact mentally ill. The common law of Australia does not recognise such a general duty of care. Per Crennan and Kiefel JJ. The power of apprehension in s 10(1) requires a police officer to hold an opinion that a person is mentally ill within the meaning of s 8. Neither officer held that opinion. Hence the power to apprehend was not available and there was no statutory power to which a common law duty could attach. Decision of the Supreme Court of Victoria (Court of Appeal): Kirkland-Veenstra v Stuart [2008] Aust Torts Reports ¶81-936, reversed.

APPEAL from the Supreme Court of Victoria. At about 5.40 am on 22 August 1999 two Victorian police officers, Acting Senior Sergeant Stuart and Detective Senior Constable Woolcock, observed Ronald Hendrik Veenstra sitting alone in a car at the Sunnyside Beach public car park on the Mornington Peninsula. A corrugated tube was taped to the exhaust pipe and extended into the left side of the vehicle. A driver’s side window was fully open. The engine was not running and the bonnet and radiator of the car were cold. The officers told Veenstra to get out of the vehicle. They observed him calmly put a writing pad into a brief case on the front seat before stepping out of the vehicle. Veenstra gave the officers his name and address. He told them that he had thought about doing something stupid but had changed his mind before they had arrived. He said he wished to return home to talk to his wife. They offered to call his wife or family; to contact a doctor or a CAT team; or to drive him home. He rejected those offers and said he would speak to his own doctor. The police conducted a search of the car. When asked about the writing pad Veenstra said that he was recording his private thoughts for his mother and refused to show the officers the pad. Stuart made inquiries over the police radio. They revealed that, other than a conviction for a summary offence in 1993, Veenstra did not have a criminal history and was not a missing person. Veenstra removed the hose. After about fifteen minutes spent with the officers he was permitted to leave. On a patrol duty sheet signed by both of them, the officers noted that Veenstra had been

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writing a letter and contemplating suicide. The duty sheet recorded that the man had no psychiatric history but also contained the word “depressed” without elaboration. Veenstra returned home. He declined to attend a dog show with his wife, pleading illness. At some time between mid-morning and 2.30 pm he committed suicide at his home by sitting in his car with a hose from the exhaust and the engine running. He left a suicide note addressed to his mother. It stated that two well-meaning police officers had thwarted his original attempt at suicide earlier that day. Section 10(1) of the Mental Health Act 1986 (Vic) empowered a member of the police force to apprehend a person who appeared to be mentally ill if the member had reasonable ground for believing that the person was likely to attempt suicide. Section 10(1A) stated that for the purposes of s 10(1), a member of the police force was not required to exercise any clinical judgment as to whether a person was mentally ill but might exercise the powers if, having regard to the behaviour and appearance of the person, the person appears to the member of the force to be mentally ill. Section 8(1A) stated that, subject to s 8(2), a person was mentally ill if he or she had a mental illness, being a medical condition that was characterised by a significant disturbance of thought, mood, perception or memory. The wife sued the police officers and the State of Victoria in the County Court for negligence. She claimed damages for nervous shock and post-traumatic stress disorder caused as a result of her husband’s death. The officers denied the claim and, alternatively, relied on s 123 of the Police Regulation Act 1958 (Vic) to transfer liability to the State for acts necessarily or reasonably done or omitted to be done in good faith by them in the course of their duty. Judge Wood dismissed the claim on the ground that the police officers owed no duty of care to exercise the s 10 power of apprehension to prevent Veenstra’s suicide. The plaintiff appealed to the Court of Appeal of the Supreme Court (Warren CJ, Maxwell P, Chernov JA dissenting) which allowed the appeal (1). Heydon and Kiefel JJ granted the officers special leave to appeal to the High Court from the judgment of the Court of Appeal. J Ruskin QC (with him R J Orr), for the appellants. The first respondent’s claim is novel. No other court has imposed a duty of care on a police officer in circumstances resembling the present. Cases where a duty has been imposed have largely been confined to custodial situations and others described as exceptional, in which the officer acted in such an extraordinary manner that his actions have created the situation of risk (2). The appellants did not assume any responsibility (1) (2)

Kirkland-Veenstra v Stuart [2008] Aust Torts Reports ¶81-936. Knightley v Johns [1982] 1 WLR 349; [1982] 1 All ER 851; Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242; [1985] 2 All ER 985; and Jane Doe v Metropolitan Toronto Commissioners of Police (1998) 160 DLR (4th) 697.

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for the risk that Veenstra would commit suicide. A number of factors tend against the imposition of a duty of care. First, the suggested duty is inconsistent with the framework of the Mental Health Act and the other duties and responsibilities of police officers. The imposition of common law duties of care on police officers to particular members of the public, in addition to their duties to the general public, can be inconsistent with the proper and effective discharge of their public responsibilities (3). The imposition of such a duty would be inconsistent with the duty in s 4(2) requiring every power under the Act to be exercised in the least possible intrusive manner and with the minimum interference with liberty and privacy. The duty is inconsistent with the general common law duty imposed on police officers to enforce public order and the criminal law (4). Inconsistency of duties arises because the imposition of a duty owed to one individual would require an officer to devote more time and care on discharging that duty to the disadvantage of his other responsibilities and the interests of others (5). Secondly, in cases where a novel duty of care is asserted, public policy considerations must be paramount. [HAYNE J. Is not your case that even if conditions for the exercise of power under s 10 were met there was no common law duty of care?] It is. [KIEFEL J. This is an area that stands apart from the police cases. You do not urge those sorts of public policy considerations, do you?] We do. In Hill v Chief Constable of West Yorkshire (6), police officers investigating crimes committed by the Yorkshire Ripper were held not to owe a duty to his last victim to investigate the earlier murders properly. The relevant public policy considerations included the general sense of public duty which motivates police forces and which would be harmed by the imposition of such a duty; the detrimentally defensive frame of mind in which police would exercise their functions and the significant diversion of police resources to the defence of civil suits that might ensue. While considering the Hill principle should be reformulated from an immunity from suit to an absence of duty of care (as it is in Australia), Lord Steyn in Brooks v Commissioner of Police of the Metropolis (7) expressly endorsed the core principles in that case. [KIEFEL J. None of the features you would normally associate with policing are here because the officers are exercising a particular role.] The question of detrimentally defensive attitude is present. Other policy considerations arise in suicide cases, including the philosophy of the common law which means that people are entitled to act as they please, even if it will inevitably lead to their death or injury (8). The (3) (4) (5) (6) (7) (8)

Tame v New South Wales (2002) 211 CLR 317 at 335 [26], 418 [298]-[299]; Sullivan v Moody (2001) 207 CLR 562. Halech v South Australia (2006) 93 SASR 427 at 450 [109]. See also Van Colle v Chief Constable of Hertfordshire [2009] AC 225 at 272 [76], 284 [132]. [1989] AC 53. [2005] 1 WLR 1495; [2005] 2 All ER 489. Reeves v Commissioner of Metropolitan Police [2001] 1 AC 360 at 368, 379-380.

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Court of Appeal failed to appreciate the negative policy implications of imposing the asserted duty of care. The majority erroneously equated police officers with statutory authorities in applying Pyrenees Shire Council v Day (9) and wrongly brushed aside as a “distraction” the cases in which public policy considerations concerning police officers were determinative. [CRENNAN J. Having regard to the statutory framework and the definition of “mentally ill”, may it be inferred, as Warren CJ said, from s 10 that Parliament’s view was that to attempt suicide is to be mentally ill?] The majority misconstrued s 10(1) by failing to recognise that the appearance of mental illness to a police officer, and the police officer having reasonable grounds for believing that the same person has attempted or will attempt suicide, are separate conditions to an exercise of the power to apprehend without which no such power exists. Those separate conditions give rise to the opposite inference. The Court reversed the statutory position by concluding that once a person attempts suicide, he is mentally ill and the power in s 10 is engaged. [He also referred to Crimmins v Stevedoring Industry Finance Committee (10); Gifford v Strang Patrick Stevedoring Pty Ltd (11); Cole v South Tweed Heads Rugby League Football Club Ltd (12); Hunter Area Health Service v Presland (13); and Hill v Hamilton-Wentworth Police Services Board (14).] M F Wheelahan SC (with him M D Rush), for the second respondent, the State of Victoria, in support of the appellants. Whether the appellants had any, and if so, what degree of control over the actions of the deceased is of fundamental importance in determining whether a common law duty of care arose. The starting point is the Act, in particular the power conferred by s 10(1). The terms of the Act do not establish a relationship between police officers and members of the public with sufficient characteristics of control answering the criteria for intervention by the tort of negligence (15). The Act establishes a comprehensive scheme concerned with the involuntary admission, detention, treatment and care of mentally ill persons and the administration of mental health services. The power of apprehension under s 10(1) is one potential point of entry. Once engaged, the power provides for the assumption of control for persons who appear mentally ill. Until then, the Act does not vest in police officers any responsibility for the welfare of persons who appear to be mentally ill and are at risk of self-harm or inflicting harm on others. [HEYDON J. If a police officer observed someone in the midst of committing suicide, is there no duty of care?] None; just as no other member of the public

(9) (10) (11) (12) (13) (14) (15)

(1998) 192 CLR 330. (1999) 200 CLR 1. (2003) 214 CLR 269. (2004) 217 CLR 469. (2005) 63 NSWLR 22. [2007] 3 SCR 129. Brodie v Singleton Shire Council (2001) 206 CLR 512.

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would have a duty of care. [HEYDON J. Assuming you are wrong about that, do you see any point of distinction? Warren CJ does not. She says there is a duty of care and there is no point of distinction for less extreme cases. Can you draw any line?] We do not draw any distinction. [HEYDON J. It would not reflect a great deal of credit on the officer concerned, would it?] The officer has a moral duty and a public duty to take action if the officer reasonably believes that action was reasonable or necessary, but that moral duty does not translate into a legal duty. In this case, the appellants did not exercise control over the deceased. Unlike the powers considered in Pyrenees Shire Council v Day (16), the s 10(1) power cannot be engaged until statutory conditions are satisfied. Further, in contrast to Pyrenees, the appellants never embarked on the exercise of their power by taking steps to apprehend Veenstra. The Court of Appeal was wrong to conclude that, because “there was control capable of being exercised” the appellants had control over the situation. That misconceives the nature of, and conditions to, the statutory power to apprehend. The power arises only when a member of the police forms the opinion that, having regard to a person’s behaviour and appearance, that person appears mentally ill, and there are reasonable grounds to believe that that person is likely, among other things, to commit suicide. [HAYNE J. The power would be conditioned by a recent attempt or intended attempt?] Yes. Control only arises when the conditions are met and a police officer exercises the power. Since, by reference to the Act, there was no control, there was no dependence and hence no vulnerability on the part of the deceased. [HAYNE J. The word “control” is often used in this field, but alone it tells you nothing. Control of what?] The risk of harm. [He also referred to Caledonian Collieries Ltd v Speirs (17); Sullivan v Moody (18); and Tame v New South Wales (19).] J H Kennan SC (with him P T Vout and P B Halley), for first respondent. By the Act, Parliament extended the scope of police functions and powers beyond the traditional role of crime detection, investigation and suppression. Section 10 conferred on police officers powers to apprehend members of an identifiable class for their protection and to facilitate assessment by a medical practitioner. Acts or omissions within the ambit of the statutory powers may, consistently with such a scheme and in exceptional or extreme circumstances, give rise to a duty of care. Close attention to the provisions of the Act and careful analysis and consideration of cases, including the “police cases”, should not alter the outcome. The duty of care held to exist by the Court of Appeal is not inconsistent with, and does not “cut across”, the Act or the relevant powers it confers. Sullivan v Moody (20) and (16) (17) (18) (19) (20)

(1998) (1957) (2001) (2002) (2001)

192 CLR 330. 97 CLR 202. 207 CLR 562. 211 CLR 317. 207 CLR 562.

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Tame v New South Wales (21) are distinguishable. Parliament has determined that police resources must be allocated to matters that include the apprehension and protection of those meeting the ss 8 and 10(1) criteria to facilitate assessment by a medical practitioner. The Act, the Second Reading Speech and the Explanatory Memorandum, express Parliament’s view that the police are “usually the first to be summoned … and no one else is better trained or equipped to provide the assistance which may be required to deal with a difficult situation”: Second Reading Speech. Police form a gateway function in so far as they are persons contemplated by Parliament as being the first and best people to interact with and apprehend individuals who appear to be mentally ill and likely to attempt suicide but “who do not or cannot consent” to assessment and, if necessary, care and treatment: s 4(1)(a). Policy considerations, whether expressed in the “police cases” or otherwise, are not a bar to the duty of care. Close attention to the statute and not policy considerations must be paramount. Members of the police can and should conduct themselves in relation to the s 10(1) power in a manner that avoids foreseeable risk of the kind specifically contemplated, self-harm and suicide arising from mental illness, including depression. Their acts and omissions in this role should have regard to the vulnerable state of people with a mental disorder, including depression, in a way which, so far as is reasonably possible, reduces the risk envisaged. [KIEFEL J. Are you assuming that a recent attempted suicide or a likely attempt at suicide by itself informs the requirement of mental illness?] Attempted suicide need not equate with m...