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The thin blue line of care

Feature Articles

Cite as: Jan/Feb 2010 84(1/2) LIJ, p.42

The High Court has considered the existence of a duty of care on the part of police officers to prevent a member of the public from committing suicide. By Roslyn Kaye

By Roslyn Kaye

Since the High Court’s decisions in Perre v Apand,1 Crimmins v Stevedoring Industry Finance Committee2 (Crimmins) and subsequent cases,3 the question of whether a duty of care exists in a particular situation has been resolved by the identification and assessment of a number of “salient features”. Those features include control, knowledge, vulnerability, autonomy, determinacy of class and general coherence of the law.

In the High Court case of Stuart v Kirkland-Veenstra,4 Gummow, Hayne and Heydon JJ, in particular, considered and applied the “salient features” test, in the context of police exercising statutory powers. The case, therefore, provides an interesting example of the Court’s approach to the interplay between the existence of a common law duty of care and powers invested in public officers under statute.

Factual background

At 5.40am on 22 August 1999, two police officers came across Mr Veenstra sitting in his parked car in a public car park on the Mornington Peninsula. The officers noticed that the car had a tube running from its exhaust to the rear window. They approached the car and found that the driver’s side window was open. The officers spoke to Mr Veenstra, who told them that although he had been contemplating doing “something stupid”, he had changed his mind, and was going home to talk about matters with his wife. The officers’ subsequent investigations at the scene found that the bonnet and radiator of the car were both cold. After further discussions with Mr Veenstra, including offering to take him to a doctor, the officers allowed him to leave the car park.

Mr Veenstra then went home. At 2.30 that afternoon, he committed suicide by asphyxiation, by securing a hose from the exhaust of his car into the car and starting the engine.

Commencement of proceedings

In 2003, Mr Veenstra’s widow, Mrs Kirkland-Veenstra, sued the police officers and the State of Victoria, alleging that the officers had breached their duty of care towards both her husband and herself by failing to apprehend Mr Veenstra when they came across him on the morning of 22 August 1999. Mrs Kirkland-Veenstra also pleaded a breach of statutory duty (breach of s10 of the Mental Health Act 1986 (Vic)), but that cause of action was not pressed at trial.

Basis for the duty of care claimed

On behalf of Mrs Kirkland-Veenstra, it was alleged that the police officers’ power to apprehend, and therefore their common law duty to apprehend, arose under s10 of the Mental Health Act. Section 10 empowers members of the police force to apprehend “a person who appears mentally ill” if the member of the police force has reasonable grounds for believing that the person has recently attempted to commit suicide or to cause serious bodily harm to himself, or is likely to so act.

Mrs Kirkland-Veenstra argued that the officers owed a duty of care to her husband to take reasonable care to protect his health and safety. She also claimed that the officers owed her a duty to prevent foreseeable psychiatric injuries (including nervous shock) which resulted from her coming across her dead husband and learning of his suicide.

County Court trial

In 2006, the matter was tried in the County Court in front of a judge and a six member jury. After the close of evidence, the trial judge withdrew the case from the jury, on the basis that the officers did not owe a duty of care to Mr Veenstra or to Mrs Kirkland-Veenstra.

Court of Appeal decision

Mrs Kirkland-Veenstra appealed the trial judge’s decision to the Court of Appeal of Victoria. The Court of Appeal allowed the appeal. In separate judgments, Warren CJ and Maxwell P held that the officers did owe a common law duty of care to both Mr Veenstra and Mrs Kirkland-Veenstra. Chernov J dissented.

Warren CJ relied on cases involving duties owed by statutory authorities, in particular the High Court decision in Pyrenees Shire Council v Day5 (Pyrenees). In Pyrenees, a local council inspected a defective chimney, which subsequently caused a fire. The High Court held that the council owed a duty of care to the owners of the adjacent premises, arising out of the council’s power to control fire risk, the fact that it had “entered the field” by inspecting the premises, and its knowledge of the danger. Her Honour held that Mrs Kirkland-Veenstra’s case was very similar to Pyrenees, as both involved situations where authorities had power to take steps to prevent harm.

Warren CJ’s conclusion that the officers did owe Mr Veenstra and Mrs Kirkland-Veenstra a duty of care was also based on her Honour’s examination of the “six relevant questions” (also known as the “salient features”) identified by the High Court in Crimmins:

  • it was reasonably foreseeable that a failure to apprehend Mr Veenstra would result in him committing suicide;
  • the police officers had the power or control to prevent the risk of self-harm (pursuant to their powers under s10 of the Mental Health Act);
  • Mr Veenstra was vulnerable as he was not in a position to safeguard himself adequately from the risk of self-harm;
  • the officers knew of the risk of harm, as they were aware of Mr Veenstra’s state of mind when they spoke to him early on 22 August 1999 in the car park;
  • the imposition of a duty of care in this case would not impose liability with respect to a “core policy making” or “quasi legislative” function of the officers, as their powers under s10 of the Mental Health Act were operational in nature; and
  • her Honour was aware of no other supervening policy reasons to deny the existence of a duty of care.

Maxwell P agreed with the reasons and conclusion of Warren CJ. His Honour added that the elements of “control” and “knowledge” on the part of the police officers were significant factors as to the existence of a duty of care in this case.

Chernov J, who dissented, held that the officers did not owe Mr Veenstra or Mrs Kirkland-Veenstra a duty of care because imposition of such a duty would be incompatible with the statutory framework of the Mental Health Act. His Honour held that a conclusion that a duty of care did exist would be a “distorting influence” on the discretionary nature of the police officers’ powers under that Act. His Honour also briefly examined the factors of “control” and “vulnerability”, which formed part of the basis for the majority’s decision. He held that the officers’ ability to “control” Mr Veenstra was, in the circumstances, limited and therefore an examination of these factors provided no basis for the imposition of a duty of care.

High Court appeal

The High Court of Australia, in a unanimous decision (although in three separate judgments), reversed the decision of the Victorian Court of Appeal and held that the officers did not owe a duty of care to Mr Veenstra or to Mrs Kirkland-Veenstra. The judgments of the High Court expounded on the reasoning of Chernov J, the dissenting judge in the Court of Appeal.

The High Court “plurality” judgment

The “plurality” judgment of the High Court was delivered by Gummow, Hayne and Heydon JJ.

Their Honours rejected the argument that the case was analogous to Pyrenees, as Pyrenees involved a complaint about the manner in which a statutory authority exercised its powers, while this case concerned a complaint about the non-exercise of a power by a statutory authority. Their Honours held that if a duty of care were to be imposed in this case, it would be one particular example of a more general duty to exercise statutory powers to protect people from physical harm. It would not be a specific duty confined to self-harm cases in which officers’ powers under mental health legislation may be exercised.

In examining whether that more general duty should be imposed, the plurality emphasised the importance of the principle of personal autonomy. The duty alleged by Mrs Kirkland-Veenstra would have required the officers to take control of Mr Veenstra’s actions by taking steps to prevent him from harming himself. According to the plurality, this would “mark a significant departure from an underlying value of the common law which gives primacy to personal autonomy”.6 In particular, the plurality emphasised the fact that at common law there is no duty imposed on strangers to rescue others.

Gummow, Hayne and Heydon JJ also examined some of the “salient features” which Warren CJ used as a basis for finding a duty of care. In particular, their Honours held that the feature of control was of critical significance in determining whether a duty was owed in this case, given that control is also linked to the consideration of personal autonomy. Their Honours took a different view of control to that of Warren CJ. They considered that Mr Veenstra alone was the source of the risk to himself, and he alone controlled the risk which he posed to himself, not the police officers. That approach is in contrast with Warren CJ’s view that the officers had the power over Mr Veenstra to control the risk of his self-harm.

French CJ

French CJ pointed out that this was not a case about “moral or ethical obligations” on the part of the police officers to prevent Mr Veenstra’s actions. Rather, it was about “limited and conditional” powers of the police officers to apprehend him.

His Honour held that in considering whether the officers owed a common law duty of care, it was essential to have regard to the operation of the relevant statutory scheme, being s10 of the Mental Health Act in this case. His Honour found that the existence of a common law duty of care depended on the availability to the police officers of their powers under s10 of the Mental Health Act. In order to enliven these powers, the officers must have formed the opinion that Mr Veenstra was mentally ill (and according to his Honour, although attempted suicide may indicate mental illness this is not necessarily always the case). Further, the officers must have had reasonable grounds to believe that the person had recently attempted suicide or was likely to do so. In this case, the trial judge made findings of fact that the police officers did not think that Mr Veenstra was mentally ill, nor had they formed the belief that Mr Veenstra was likely to attempt suicide after their conversation with him.

Accordingly, in the particular circumstances of this case, the police officers were not empowered to apprehend Mr Veenstra under s10, so a duty of care based on the statutory power did not exist. It is implicit in his Honour’s reasoning that the question of whether a duty of care would have existed, had the statutory power been enlivened, did not arise in this case.

Crennan and Kiefel JJ

The reasoning by Crennan and Kiefel JJ in their joint judgment was similar to that of French CJ. Their Honours held that the existence of a duty of care depended on a power given by statute. Given that neither officer held the opinion that Mr Veenstra was “mentally ill” (as defined for the purposes of s10 of the Mental Health Act), they had no power under that Act to apprehend him. Therefore, s10 “supplied no relevant statutory power to which a common law duty could attach”.7 The salient feature of control was a feature of the statutory scheme in this case.

Like Gummow, Hayne and Heydon JJ, Crennan and Kiefel JJ distinguished Pyrenees on the basis that in that case the duty of care arose when an authority commenced exercising its powers towards a group of individuals. By contrast, the allegation in this case was that the officers had not used their power at all.

Their Honours briefly considered the concept of vulnerability as a salient feature relevant to determining the existence of a duty of care, but held that vulnerability is “not universally accepted as an analytical tool”.8

The High Court approaches

The approach taken by the plurality seems consistent with previous High Court decisions regarding existence of a duty of care, as Gummow, Hayne and Heydon JJ considered carefully the relevant “salient features” and their application to this set of facts. The approach taken by French CJ and Kiefel and Crennan JJ focused closely on the availability of the statutory power as the basis for finding a duty of care.

Consequently, the judgments of French CJ and Crennan and Kiefel JJ in this case are fairly fact specific, while the judgment of the plurality discusses the broader notion of a general duty to exercise statutory powers to protect people from physical harm.

The decision and reasoning in Stuart v Kirkland-Veenstra is also consonant with the earlier decision of the New South Wales Court of Appeal in Hunter Area Health Service v Presland9 (Presland). In Presland, the Court of Appeal considered whether a psychiatric hospital and/or a psychiatrist had a duty of care to detain a psychiatric patient under statutory powers, in circumstances where the patient later suffered psychiatric harm after killing his brother’s fiancĂ©e. The Court held that no relevant duty existed and, in particular, Santow J held that to impose a common law duty would “distort” the exercise of the discretion under statute.

Considerations for practitioners

Practitioners should bear in mind that the Victorian Health Minister released a Mental Health Consultation Paper in December 2008 and called for public submissions. Although the Minister’s paper does not discuss potential changes to the police powers under s10 of the Mental Health Act, it is possible that some of the responsive submissions did address the power.

In addition, the Victorian Auditor-General is currently conducting a performance audit on the “Capacity of police and emergency services to respond to people with mental health issues”, which may also discuss the current statutory power.

If the government does decide as a consequence of these reviews to alter s10, then this could potentially impact on the approach of courts in the future to issues like those raised in Stuart v Kirkland-Veenstra.

ROSLYN KAYE is a Victorian barrister practising in common law, commercial law and criminal law.

1. (1999) 198 CLR 180.

2. (1999) 200 CLR 1.

3. See, e.g., Sullivan v Moody (2001) 207 CLR 562.

4. (2009) 237 CLR 215.

5. (1998) 192 CLR 330.

6. Note 4 above, [87].

7. Note 4 above, [150].

8. Note 4 above, [133].

9. (2005) 63 NSWLR 22.


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