Smith v State of Victoria [2018] VSC 475

The Plaintiffs in this application are a mother and three children. They were the victims of multiple acts of family violence by the children's father over the course of a decade.¹ The Plaintiffs allege that Victoria Police officers owed the family a duty of care and that the police subsequently breached that duty, causing the Plaintiffs psychological harm.² The Plaintiffs also allege that Victoria Police acted contrary to its obligations as a public authority and in doing so, breached the family's human rights.³

The Plaintiffs' case argued that a duty of care is owed to a person by a police officer in the particular circumstances.

The Defendant sought summary dismissal (strike out) of the proceedings brought against it in the Supreme Court of Victoria. The Defendant alleged that the Plaintiffs' claim had no prospect of success⁴ or in the alternative, sought a partial strike out of the pleadings, claiming no cause of action had been disclosed in those parts.⁵ The Defendant opposed the Plaintiffs' arguments regarding the existence of the alleged duties of care and claimed those duties cannot arise at law. The Plaintiffs contended that the current law in Australia was not settled, but that it did not deny the existence of a duty of care and thus, it would be open to a Court to find such duties at the conclusion of a trial.⁶

The Defendant's application was dismissed by Dixon J. His Honour noted that summary judgment pursuant to ss62 and 63 of the Civil Procedure Act 2010 is an 'extreme measure' ⁷ and found that the Plaintiffs' claims regarding the duty of care may be arguable once the facts have been established on close analysis at trial.⁸ In dismissing the Defendant's application, His Honour referred to the UK case Hill v Chief Constable of West Yorkshire⁹ ('Hill'), which created the police "doctrine of immunity", being that police did not owe a duty to members of the public generally to protect against harm caused by criminal conduct.

His Honour also provided that in Victoria, a duty of care to investigate criminal conduct will not arise other than in exceptional circumstances, and police may be found to owe a duty of care where the salient features test is satisfied.¹⁰

Duty of care

Dixon J referred to salient features and reasonable foreseeability in respect to the relationship between the Plaintiffs and the Defendant, as outlined in Kuhl v Zurich Finance Services Australia Ltd.¹¹

The Plaintiffs relied on the relationship of proximity that existed between the police officers and the Plaintiffs in pleading that police had a duty to prevent breaches of several Intervention Orders (IVOs) by the father.

Several other salient features were pleaded by the Plaintiffs in reference to the duty of care owed by the officers, including:¹²

1. The officers' control over compliance with the IVOs;
2. The reasonable foreseeability of harm to the Plaintiffs if the IVOs were breached;
3. Victorian Family Violence policies stipulating that Victoria Police would protect people affected by family violence, enforce compliance of IVOs and comply with the policies, such as the Family Violence Code of Practice, the Victoria Police Manual and Family Violence Procedures and Guidelines;
4. No countervailing policy reasons that negate the imposition of a duty of care on police to prevent breaches of IVOs; and
5. Police officers' knowledge of the repeated acts of violence and breaches of IVOs.

The Defendant argued that some of the pleadings were too broad, and referred to procedural steps, contending that those steps can 'hardly be sufficient or apt to prevent breach'.¹³ The Defendant's argument in support of this referred to the Plaintiffs' submissions that 'every' police officer owed a duty to 'every' affected family member named in 'every' extant Intervention Order. The Plaintiffs retorted that the duty was owed by police officers based at stations local to the Plaintiffs' homes, by reason of their status as family violence victims, or alternatively as victims of offenders known to police.¹⁴ They argued that on these specific facts, a special relationship existed in which the alleged duties arose. Dixon J dismissed the Defendant's arguments in this regard.

The Plaintiffs strongly contended that the law in Australia regarding police officers' duty of care is in a state of development.

Special Relationship

The Defendant argued that the principles from Hill applied, and this was not an exceptional case in which an officer owed a duty to members of the public in protecting them against harm caused by criminal conduct. The Defendant relied on extensive case law upholding this principle. The Defendant also contended that Australian courts have limited the imposition of such a duty on police officers to when the harm is caused to a third person by an officer's conduct, or towards a person in police custody.

Salient Features

Dixon J noted that as the existence of a novel duty of care is alleged the court must apply the salient features approach, per Crimmins v Stevedoring Industry Finance Committee.¹⁵ His Honour said that this involves –

A close analysis of the facts bearing on the relationship between the Plaintiff and the putative tortfeasor… affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.¹⁶

The Plaintiffs refuted the Defendant's reliance on Hill, arguing that the salient features of proximity, knowledge and control present in Smith were absent in Hill. One example provided in the Plaintiffs' submissions was that the proposed duty argued in Hill applied to the public at large, and not only to the Plaintiff. Dixon J accepted that even if Hill was good law in Australia,¹⁷ Smith is distinguished from Hill.

The Plaintiffs emphasised the dissenting judgment in Michael v Chief Constable of New South Wales Police,¹⁸ which held that proximity was a determinative factor. The Plaintiffs' submissions also relied on Allsop ACJ's judgment in State of New South Wales v Spearpoint,¹⁹ in which His Honour outlined pertinent salient features, such as foreseeability, degree of harm, vulnerability, reliance, assumption of responsibility and policy. The Plaintiffs argued that based on the authority provided by Spearpoint, Smith cannot be summarily dismissed.

Dixon J accepted that control was a salient feature in this case. His Honour stated that the relevant focus of the control factor concerned control of the risk, rather than the offender. Dixon J also stated that control is a fact-sensitive feature to be determined on the evidence.²⁰ The Plaintiffs argued that the officers dropping the father within the prohibited zone identified in one of the IVOs was a clear example of the officers' control. The Plaintiffs' vulnerability was to be substantiated by legislation and policies recognising the vulnerability of those affected by family violence.²¹

Other Considerations

The Plaintiffs referred to a Canadian Supreme Court decision that rejected the inconsistent duties contention relied on by the Defendant,²² and Dixon J provided that –

Australian courts are familiar with both consideration of policy issues and the Crimmins mandate that consideration of supervening policy reasons occur after the application of the standard salient features.²³

The Plaintiffs submitted that the Defendant was relying on the potential of conflicting police duties, as raised in Hill, without identifying what the inconsistent duties actually are.²⁴ The Plaintiffs argued the duties in Smith were in line with the priorities in the relevant legislation and policy, such as the applicable legislation governing family violence which aims to maximise the safety of those affected by family violence. The Plaintiffs submitted that there were no duties that conflicted or were inconsistent with police's other obligations to the public, particularly in light of the new package of policy and legislation regarding family violence.

The Plaintiffs referred to the observations of Redlich J in State v Richards.²⁵ His Honour noted such duties should only be denied where the imposition of the duty of care created inconsistent obligations in a real sense. The Plaintiffs further argued that the pleadings did no more than allege duties of which are already required under existing policies protecting victims of family violence. In addition to the legislation governing family violence in Victoria, the Plaintiffs relied on Family Violence Codes of Practice, the Victoria Police Manual and Family Violence Procedures and Guidelines in their pleadings.

Dixon J dismissed this application, stating that the Defendant's contention that the Plaintiffs' proposed duties of care have no real prospect of being successful was not made out.

This article was written by Rachael McKendrick, Lawyer.