Rickard v State of NSW [2010] NSWSC 151 (5 March 2010)

Last Updated: 8 March 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Rickard v State of NSW [2010] NSWSC 151


JURISDICTION:


FILE NUMBER(S):


HEARING DATE(S):
9 September 2009, 5 March 2010

JUDGMENT DATE:
5 March 2010

PARTIES:
Tania Rickard (Plaintiff)
State of New South Wales (Defendant)

JUDGMENT OF:
R A Hulme J

LOWER COURT JURISDICTION:
Local Court

LOWER COURT FILE NUMBER(S):
12227/2008

LOWER COURT JUDICIAL OFFICER:
Bartley LCM

LOWER COURT DATE OF DECISION:
15 April 2009


COUNSEL:
Mr G Segal (Plaintiff)
Mr G Giagios (Defendant)

SOLICITORS:
Rhodes Legal
Crown Solicitor


CATCHWORDS:
TORTS
negligence
essentials of action for negligence
duty of care
special relationships and duties
police officers
salient features to be considering in novel cases of duty of care
POLICE
rights, powers and duties
other powers and duties
PROCEDURE
costs
departing from the general rule
order for costs on indemnity basis
nature of proceedings
appeals as to costs
PROCEDURE
inferior courts
New South Wales
Supreme Court procedure
summarily striking out statement of claim for failing to disclose reasonable cause of action
PROCEDURE
appeal lodged against findings of Magistrate striking out claim pursuant to rule 13.4 of the Uniform Civil Procedure Rules for failing to disclose reasonable cause of action
appeal involved determination of whether Police Officer owed duty of care to victim of domestic violence the content of which required the police officer to advise the victim to seek independent advice before entering into a commercial transaction with the police officer

LEGISLATION CITED:
Uniform Civil Procedure Rules 2005
Local Court Act 2007
Police Act 1990
Law Enforcement (Powers and Responsibilities) Act 2002
Victims Rights Act 1996
Civil Procedure Act 2005

CATEGORY:
Principal judgment

CASES CITED:
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Australia v Griffiths & Anor [2007] NSWCA 370
Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512
Brooks v Commissioner of Police for the Metropolis; [2005] UKHL 24; [2005] 2 ALL ER 489
Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258; 259 ALR 616
Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370; (2007) 70 NSWLR 268
Costello v Chief Constable of Northumbria [1998] EWCA Civ 3536; [1999] ICR 752; [1999] All ER 550
Cran v State of New South Wales [2004] NSWCA 92; 62 NSWLR 95
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1
Donoghue v Stevenson [1932] UKHL 100; [1932] All ER Rep 1; [1932] AC 562
D'Orta Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) FCA 202; 81 ALR 397
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; [1964] HCA 69; 112 CLR 125
Graham Barclay Oysters v Ryan [2002] HCA 54; (2002) 211 CLR 540
Hill v The Chief Constable of West Yorkshire [1989] 1 AC 53
Howard v Jarvis [1958] HCA 19; 98 CLR 177
Hunter Area Health Service v Presland [2005] NSWCA 33; 63 NSWLR 22
Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672
Knightley v Johns [1981] EWCA Civ 6; [1982] 1 WLR 349
Makawe Pty Limited v Randwick City Council [2009] NSWCA 412
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254
Perre v Apand Pty Limited [1999] HCA 36; 1998 CLR 180
Reynolds v Katoomba RSL All Services Club Ltd [2001] NSWCA 234; 53 NSWLR 43
Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242
Rush v Commissioner of Police Officers [2006] FCA 12; 150 FCR 165
Sanders v Snell (No 2) [2003] FCAFC 150; 130 FCR 149
State of New South Wales v Godfrey & Godfrey [2004] NSWCA 113
State of New South Wales v Heins [2005] NSWCA 258
State of New South Wales v Klein [2006] NSWCA 295; (2006) Aust Torts Reports 81-862
State of New South Wales v Paige [2002] NSWCA 235; (2004) 60 NSWLR 371
State of New South Wales v Spearpoint [2009] NSWCA 233
Stuart v Kirkland-Veenstra [2009] HCA 15
Sullivan v Moody [2001] HCA 59; 207 CLR 562
Tame v New South Wales [2002] HCA 35; 211 CLR 317
The State of New South Wales v Tyszyk [2008] NSWCA 107
Wilson and Others v State of New South Wales [2001] NSWSC 869; (2001) 53 NSWLR 407
Zalewski v Turcarolo [1995] VicRp 76; [1995] 2 VR 562

TEXTS CITED:


DECISION:
Appeal dismissed. Order of the Magistrate that the plaintiff pay the defendant's costs on an indemnity basis confirmed. Plaintiff to pay the defendant's costs of the appeal on an indemnity basis.



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

R A Hulme J

5 March 2010

12345/79 Tania Rickard v State of New South Wales

JUDGMENT

Introduction

1 HIS HONOUR: The plaintiff had dealings with a police officer in connection with a complaint of domestic violence by her boyfriend. In the course of those dealings she offered to sell him a car for $100. He agreed and purchased the car for that sum.

2 The plaintiff now claims that she was in a vulnerable state and that the transaction was improvident because the car, a 1994 Ford Laser, was worth more than $100. She contends that the officer should have counselled her to seek independent advice. She commenced proceedings against the State of New South Wales alleging that it was vicariously liable for a breach of a duty of care owed to her by the police officer.

3 The plaintiff claims damages in the sum of $22,678 for the lost value of the car, car rental charges and loss of income as well as an unspecified amount for emotional distress and disappointment. How the loss of income and “emotional distress and disappointment” are related to the sale of the car is unclear, although as will be seen below I am not required to determine these issues.

4 These proceedings are an appeal in respect of orders made on 9 April 2009 by a magistrate sitting in the General Division of the Local Court. His Honour Magistrate Bartley granted the defendant’s application that the plaintiff’s statement of claim be dismissed pursuant to rule 13.4 Uniform Civil Procedure Rules (UCPR) upon the basis that it disclosed no reasonable cause of action. His Honour also ordered that the plaintiff pay the defendant’s costs on an indemnity basis.

5 The proceedings in the Local Court were conducted upon an assumption that the facts asserted in the statement of claim were correct. It was accepted on behalf of the defendant, although it had not been specifically pleaded, that if the police officer was found to have breached a duty of care the State of New South Wales would be vicariously liable. An amendment to the pleadings was proposed to cure this oversight.

6 The pleaded facts may be summarised as follows. On 20 June 2007, the plaintiff attended Auburn Police station seeking assistance as a result of acts of domestic violence committed against her. She was attended to by Senior Constable, as he was then, Shane Darlington. She informed him of the alleged assault and also (statement of claim para 9):

(a) She intended to leave Australia and return to her native home in New Zealand.

(b) She owned two motor vehicles, one of which was a Ford Laser.

(c) She intended to leave the two vehicles behind.

(d) She was not returning to live in the flat in which she had been residing with her boyfriend

(e) She would give up her employment

7 Senior Constable Darlington told her that he was looking to buy a car for his brother. She offered to give him the Ford Laser. He told her that he would have to pay something for it. She said she would accept $100. He agreed.

8 Senior Constable Darlington also informed the plaintiff that if she intended to leave the country it would be a waste of police time to institute any court proceedings against her boyfriend because they would fail for lack of evidence.

9 In submissions before the magistrate the plaintiff contended that this case involved a vulnerable victim who attended a police station seeking assistance. Senior Constable Darlington owed a duty of care in the performance of his duties and functions to act without regard to his own commercial interest. To have discharged that duty of care, the officer should have advised the plaintiff to seek independent advice as to the sale of her car and returning to New Zealand. The plaintiff was “attacking the conduct of the police officer in not exercising proper care in his duties which resulted in her entering into these improvident transactions and making improvident decisions” (2.4.09 at T39). Why counsel was speaking in the plural about transactions and decisions is not apparent.

10 At the conclusion of a thorough and comprehensive judgment, the learned magistrate stated:

I have concluded that the reason that there is no authority supporting the existence of a duty of care of the kind asserted on behalf of the respondent/plaintiff is that, in law, there is no such duty of care.

The facts alleged in para 24 of the statement of claim do not give rise to any breach of any lawful existing duty of care in negligence” (9.4.09 at T17). [Emphasis added]

11 In arriving at this conclusion, his Honour took into account a range of factors that may militate for or against the imposition of a duty.

Appeal

12 Proceedings were commenced in this Court with the filing of a summons on 14 May 2009. The matter came before me on 9 September 2009 with Mr Segal appearing for the plaintiff and Mr Giagios for the defendant, both of whom appeared in the court below. It emerged during the course of Mr Segal’s oral submissions that his argument and the authorities upon which he relied went well beyond his previously filed written submissions. The hearing was adjourned to permit him to file and serve more comprehensive written submissions. That has occurred and I heard further oral submissions on 5 March 2010.

13 Before dealing with the submissions, it is necessary to make brief reference to the test for determining whether proceedings may be dismissed without a substantive hearing.

14 Rule 13.4 of the Uniform Civil Procedure Rules 2005 is in these terms:

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

15 In considering the ambit of claims that may fall within r 13.4, the long standing and much cited decision of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 at [129] remains authoritative:

The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense.

16 In Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370; (2007) 70 NSWLR 268 Beazley JA, with whom Mason P agreed, said:

[11] The general principles relating to the summary disposal of proceedings are well-known: see General Steel Industries Inc v Commissioner for Railways (NSW) & Ors [1964] HCA 69; (1964) 112 CLR 125 at 129. If it is demonstrated that there is a real question to be tried, the matter is inappropriate for the entry of summary judgment: Dey v Victorian Railway Commissioners [1949] HCA 1; (1949) 78 CLR 62. The tests stated in the authorities as to whether it is appropriate that a case be disposed of by the entry of summary judgment include statements such as that the matter is “so obviously untenable that it cannot possibly succeed”; “manifestly groundless” or “would involve useless expense”: see General Steel Industries at 129.

17 In the present case, counsel for the plaintiff conceded that the nature and scope of the duty for which he contends is a novel one. In other words, a refusal by this Court to create such a duty would clearly satisfy r 13.4 in so far as there would be no cause of action against the defendant.


Plaintiff’s Grounds of Appeal

18 The plaintiff’s summons identified the following grounds of appeal:

1. His Honour erred in concluding that the plaintiff’s pleading did not disclose a cause of action.

2. His Honour erred in finding that, as a matter of law, no action would lie at the suit of the plaintiff against the defendant in respect by Senior Constable Shane Darlington of his functions as a police officer and employee of the defendant.

3. His Honour erred in law in holding that, by reason of the principles laid down in Hill v The Chief Constable of West Yorkshire [1989] 1 AC 53 and other authorities following that decision, Senior Constable Shane Darlington owed no relevant duty of care to the plaintiff.

4. His Honour erred in law in concluding, contrary to the views expressed by Campbell JA in The State of New South Wales v Tyszyk [2008] NSWCA 107, that, unless the types of policy considerations which Campbell JA, there identified were engaged, a duty of care of the type asserted by the plaintiff can (not) be established.

5. His Honour erred in law in failing to distinguish Hill’s case from the plaintiff’s claim in that the plaintiff’s claim did not engage the types of policy considerations underlying the decision in Hill’s case.

6. His Honour erred in law in failing to take into account in determining whether the plaintiff’s statement of claim disclosed no reasonable cause of action that the plaintiff’s statement of claim alleged that Senior Constable Shane Darlington, in performing his duties or purporting to perform his duties, acted upon the consideration of his own economic advantage.

19 At the initial hearing of this matter on 9 September 2009, the plaintiff sought leave to amend the summons by adding a prayer for relief in respect of the indemnity costs order. The ground of appeal in this respect is:

His Honour erred in law in concluding that the bringing of the proceedings was undertaken with wilful disregard to clearly established law.

20 The appeal in relation to the substantive issue is an appeal as of right: s 39(1) Local Court Act 2007. Leave is required in respect of the appeal against the order for costs: s 40(2)(c).

21 Whilst the grounds of appeal in respect of the substantive issue have been variously expressed, the plaintiff has conveniently summarised the position as follows:

a. The duty of care contended for is, at least arguably, not inconsistent with any principle expounded by courts of authority concerning the circumstances in which a duty of care might be found to exist;

b. The duty of care asserted is, at least arguably, in accord with principle.

c. The circumstances of the present case do not, at least arguably, engage the principles, which give rise, to immunity of police for actions that might otherwise be negligent.

22 The duty of care for which the plaintiff contends is pleaded as follows:

“23. In the circumstances pleaded, Senior Constable Shane Darlington was under a duty of care to the plaintiff:

(a) To exercise his powers and duties without regard to or consideration of any personal or commercial interest of his own.

(b) Not to exercise any of the powers or duties of a police officer concerning any matter in respect of which he had or may have had a personal or commercial interest of his own or any other member of his family.

(c) Not to give any advice or withhold the giving of any advice to the plaintiff in circumstances where he had or might have had any personal or commercial interest or his own or any other member of his family.

(d) Not to enter into any personal or commercial transaction with any person who sought his assistance in his capacity as a member of the New South Wales Police Service.

(e) To give such advice and assistance and take such steps as was appropriate for a member of the New South Wales Police Service in the exercise or discretions in relation thereto without the influence of any personal or commercial consideration of his own or any other members of his family.

23 The duty of care contended for in oral submissions before me on 9 September 2009 was less precisely identified. I will return to this.

24 The essence of the case sought to be made by the plaintiff was outlined before the magistrate (2.4.09 at T25) as being that she was a vulnerable person who had been the subject of a traumatic experience. Senior Constable Darlington, being in a superior position of authority, knowingly took advantage of her, contrary to his powers and functions. That is, a police officer should discharge his general duties in good faith and without some ulterior motive. For that duty to have been carried out in this case, the defendant should have advised the plaintiff to get independent advice and counselling prior to entering into significant transactions that would affect her life in the immediate future.

25 The plaintiff acknowledged that the legitimacy of the duty of care put forward in this case has yet to be decided by any court. Whilst there was no authority supporting the plaintiff’s contention as to the existence of the duty of care propounded, neither, it was submitted, was there authority to the contrary.


Defendants Submissions in Response

26 It was submitted on behalf of the plaintiff that Senior Constable Darlington’s actions in dealing with the domestic violence complaint were tainted by thoughts of his own commercial advantage. However, the plaintiff has not pleaded any complaint about a specific police duty or function which the officer was required to perform but performed negligently. There is no pleading that the officer failed in any of his duties in respect of the domestic violence complaint that the plaintiff made to him.

27 The duty asserted by the plaintiff is not one which relates to the exercise by a police officer of investigatory or prosecutorial functions. The magistrate was correct to conclude that it was no part of the duty of a police officer to give advice to a member of the public on matters beyond the scope of the officer’s functions and responsibilities.

28 The magistrate was correct to find that there were sufficient policy considerations in this case to militate against the imposition of a duty of care.

29 The defendant contends that the law does not, prima facie, impose a duty of care by members of a police force acting in the discharge of police functions to members of the public. For the court to impose such a duty, the plaintiff would have to establish why the special circumstances of this case would create such a duty.


The duty of care contended for

30 It is well accepted that in certain circumstances police officers owe a duty of care to prevent the occasioning of foreseeable harm: see Rush v Commissioner of Police Officers [2006] FCA 12; 150 FCR 165 at 191 [97] for a collection of cases in which a duty of care has been assumed or found to exist. Police officers do not enjoy blanket immunity against suits in negligence: see State of NSW v Tyszyk [2008] NSWCA 107 at [121] - [128]; Zalewski v Turcarolo [1995] VicRp 76; [1995] 2 VR 562; Knightley v Johns [1981] EWCA Civ 6; [1982] 1 WLR 349; and Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242.

31 The defendant rightly submits that during the hearing on 9 September 2009, counsel for the plaintiff articulated different forms of the duty of care said to be owed by Senior Constable Darlington and, importantly, the function, duty or obligation that he was performing when the purported duty arose. Counsel asserted that the duty was one of advising the plaintiff to seek advice (9.9.09 at T7.25 – 7.29; T14.25 – 14.40). He also asserted that the exercise of the constable’s powers was influenced by his desire to buy the plaintiff’s car (T8.45) and that there was a duty not to take advantage of the constable’s position (T12.33).

32 When asked what power or duty the constable was exercising when he purchased the car from the plaintiff, counsel responded, “In buying the car per se he wasn’t exercising a police function” (9.9.09 at T8.10).

33 In written submissions counsel for the plaintiff argued, “The role of Constable D[Arlington] cannot be adequately described as one of engaging in the investigation of crime. He was purporting to offer advice and assistance to the plaintiff”.

34 The defendant has rightly pointed out the difficulty the plaintiff faces in articulating the duty of care. It is well established that unless extraordinary circumstances are present or a special relationship has been created, courts will not impose a duty in negligence on the police in the investigation and prosecution of crimes for various policy reasons.

35 An additional hurdle the plaintiff faces in this case is the characterisation of what Senior Constable Darlington was doing as a police function and not a private activity. If it was the latter an obvious issue arises as to the liability of the State. However, within this context, the plaintiff seeks to argue that the constable was not performing an investigatory role, rather he was performing his “general police powers and functions”, namely, the giving of advice which is implicitly required pursuant to the Police Act 1990 and the Charter of Victims Rights.

36 What advice was the officer giving? In a statement made by the plaintiff on 22 July 2007, which was Exhibit 1 in the Local Court, the plaintiff conceded that the advice given was in relation to the taking out of an apprehended violence order, the bringing of charges against her boyfriend and the nature of the evidence required. Accordingly, in giving such advice the only police duty performed by Senior Constable Darlington was the receiving of a complaint about a crime having been committed and investigating and otherwise responding to it. In my view it would be illogical to see a difference between the constable’s performance of “general police powers and functions”, a vague notion at best, and his investigation of and response to the plaintiff’s complaint. Senior Constable Darlington was performing an investigatory function at the time the plaintiff alleges that a duty of care arose. The alternative view of the matter is that he was acting in a private capacity and he was neither investigating the matter nor performing any other police function. If this were to be the case, then the factual matrix would not, and could not, support the duty contended for as its fundamental element, being a police officer acting on duty, would not exist.


Ascertaining the existence of a duty of care

37 This being a case in which the plaintiff concedes there is no authority supporting the existence of the asserted duty of care it is useful to turn to the summary provided by Allsop P set in Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258; 259 ALR 616 of the approach to be taken in determining whether a duty of care exists. The President stated:

[102] This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the “salient features” or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.

[103] These salient features include:

(a) the foreseeability of harm;

(b) the nature of the harm alleged;

(c) the degree and nature of control able to be exercised by the defendant to avoid harm;

(d) the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;

(e) the degree of reliance by the plaintiff upon the defendant;

(f) any assumption of responsibility by the defendant;

(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;

(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;

(i) the nature of the activity undertaken by the defendant;

(j) the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant;

(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;

(l) any potential indeterminacy of liability;

(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;

(n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests;

(o) the existence of conflicting duties arising from other principles of law or statute;

(p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and

(q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.

[104] There is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features. Nor should the list be seen as exhaustive. Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content.

38 Most of these features warrant consideration in the present case. Items (a), (g), (h) and (k) are relevant matters. They do not require specific analysis but should be taken into account. Items (j), (m) and (n) do not appear to be of significance. Submissions were made by the plaintiff in relation to some, but not all, of the other factors enumerated by Allsop P. There was no suggestion that there were any other factors beyond those identified by the President that were relevant. I will, however, give consideration to one other matter, that being the question of whether a duty of care should be found in circumstances where what is alleged is a failure to act.

39 In discussing these various salient features I will do so under headings but not separately for each matter. There will be consideration of some in the course of dealing with others.


Harm occasioned primarily in the nature of economic loss

40 The plaintiff’s claim is to a significant extent, although not exclusively, concerned with economic loss. The plaintiff also claims damages for “emotional distress and disappointment”. It is difficult to see on the facts pleaded that this is anything other than a very minor component of the claim.

41 It is useful to note the observation of Spigelman CJ in Reynolds v Katoomba RSL All Services Club Ltd [2001] NSWCA 234; 53 NSWLR 43:

[17] In my opinion the law should not recognise a duty of care to protect persons from economic loss, where the loss only occurs following a deliberate and voluntary act on the part of the person to be protected. There may be, however, an extraordinary case where a duty should be recognised.

42 I note, however, the observation of Simpson J in Makawe Pty Limited v Randwick City Council [2009] NSWCA 412 at [94] that a generalisation that no duty of care was owed to a person to avoid damage categorised as pure economic loss may no longer be valid. I have noted that the plaintiff’s case is not one of pure economic loss, but the extent to which it largely is cannot be completely ignored.


Conflict, conformance, coherence and assumption of responsibility

43 Whether there are conflicting duties arising from other principles of law or statute, which involves a consideration of the nature of the activity undertaken by the defendant, and questions of conformance and coherence in the structure and fabric of the common law have some connection in the analysis. Consideration of item (p) in the President’s inventory is incidental. It is convenient also to deal with the question of assumption of responsibility by the defendant as it is an issue that arises in some of the same authorities.

44 The New South Wales Police Force (“the police”) serves a number of important purposes and it is vital that the imposition of a duty of care in tort does not create obligations that would cause conflict with its primary services, functions and obligations. In Sullivan v Moody [2001] HCA 59; 207 CLR 562 it was observed in the unanimous joint judgment at 582 [60]:

(I)f a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that a duty exists.

45 It is therefore necessary to consider those obligations of the police and whether conflict would be created by the imposition of a tortious duty of care.

46 Sections 6 and 7 of the Police Act 1990, relevantly, provide:

6 Mission and functions of NSW Police Force

(1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear.

(2) The NSW Police Force has the following functions:

(a) to provide police services for New South Wales,

(b) to exercise any other function conferred on it by or under this or any other Act,

(c) to do anything necessary for, or incidental to, the exercise of its functions.

(3) In this section:

police services includes:

(a) services by way of prevention and detection of crime, and

(b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and

(c) the provision of essential services in emergencies, and

(d) any other service prescribed by the regulations.

(4) A reference in this section to the functions of the NSW Police Force includes a reference to the functions of members of the NSW Police Force.

...

7 Statement of values of members of NSW Police Force

Each member of the NSW Police Force is to act in a manner which:

(a) places integrity above all,

(b) upholds the rule of law,

(c) preserves the rights and freedoms of individuals,

(d) seeks to improve the quality of life by community involvement in policing,

(e) strives for citizen and police personal satisfaction,

(f) capitalises on the wealth of human resources,

(g) makes efficient and economical use of public resources, and

(h) ensures that authority is exercised responsibly.

47 Section 14 should also be noted:

14 Additional functions of police officers

(1) In addition to any other functions, a police officer has the functions conferred or imposed on a constable by or under any law (including the common law) of the State.

(2) Nothing in this section confers on a police officer a power to exercise a function in a way that is inconsistent with any provisions applicable to police officers under the Law Enforcement (Powers and Responsibilities) Act 2002.

48 The submissions on behalf of the plaintiff also make reference to the charter of rights for victims of crime in s 6 of the Victims Rights Act 1996. It must, however, be disregarded. Section 6 appears in Part 2 of that Act. Part 2 also includes the following:

8 Legal rights not affected

(1) Nothing in this Part gives rise to, or can be taken into account in, any civil cause of action, and without limiting the generality of the foregoing, nothing in this Part:

(a) operates to create in any person any legal rights not in existence before the enactment of this Part ...

49 Sections 6 and 7 of the Police Act do not create private obligations, rather they are aspirational in nature: Wilson and Others v State of New South Wales [2001] NSWSC 869; (2001) 53 NSWLR 407 at [41]. Police are vested with the responsibility of performing a myriad of functions with many intended purposes and beneficiaries. An issue, which requires determination, is whether the imposition of a duty of care would create additional duties that are irreconcilable with the performance of the primary obligations. Such an issue raises for consideration public policy factors militating for and against the imposition of a duty of care in the circumstances of the instant case.

50 One of the leading cases on negligence actions concerning police is Hill v Chief Constable of West Yorkshire [1989] AC 53 (“Hill”). In Hill the House of Lords dealt with a case in which the plaintiff's daughter was attacked and died as a consequence. The plaintiff alleged that the murder could have been prevented had the police carried out a more adequate investigation into the activities of the criminal.

51 The House of Lords held that as a matter of public policy the police were immune from actions of negligence in respect of the activities in their investigation and suppression of crime. The plaintiff’s statement of claim was struck out on the basis that it revealed no cause of action. Lord Keith of Kinkel said (at 63):

(I)n my opinion there is another reason why an action for damages in negligence should not lie against the police in circumstances such as those of the present case, and that is public policy. ...The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes. While some such actions might involve allegations of a simple and straightforward type of failure – for example that a police officer negligently tripped and fell while pursuing a burglar - others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do. The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and retraversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted. (Emphasis added).

52 Many cases founded in negligence and brought against police concerning the investigation and prosecution of criminal actions reveal it is extremely difficult for a plaintiff to prevail against the considerations discussed in Hill. This is despite the fact that Lord Keith did not intend for his reasoning to be interpreted as a blanket immunity for police. That is indicated by the emphasised portion in the passage above and by his recognition (at 59):

There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence. Instances where liability for negligence has been established are Knightley v. Johns [1981] EWCA Civ 6; [1982] 1 W.L.R. 349 and Rigby v. Chief Constable of Northamptonshire [1985] 1 W.L.R. 1242.

53 It is worth noting the factual situations in Knightley and Rigby. They were succinctly described by Young CJ in Eq in State of New South Wales v Klein [2006] NSWCA 295; (2006) Aust Torts Reports 81-862:

[34] Knightley's case was really one of negligence by a police authority towards its own constable because the constable was allowed to drive on the wrong side of the road to close a road tunnel where there had been an accident and was hit by a motorist coming on the motorist's correct side of the road.

[35] In Rigby, the police were held negligent in firing a flammable gas into a building to overpower a psychopathic gunman without taking measures which appeared to be available to be able to deal with the fire that, as was foreseeable, resulted.

54 Other notable exceptions to the type of “immunity” discussed in Hill whereby a duty of care has been held to arise have been in cases where the police have assumed the responsibility for that duty either expressly or implicitly. In Costello v Chief Constable of Northumbria [1998] EWCA Civ 3536; [1999] ICR 752; [1999] 1 All ER 550, a duty of care was found to extend to a police officer who failed to assist another police officer who was being attacked in a nearby cell by a prisoner. I will say more about an assumption of responsibility later.

55 Hill outlines a myriad of factors that should be considered when upholding a civil action in negligence against police. Many of the core principles of Hill, albeit not all, have been endorsed by the House of Lords in relatively recent times: see Brooks v Commissioner of Police for the Metropolis; [2005] UKHL 24; [2005] 2 ALL ER 489.

56 Hill has also been referred to with approval in Australia on many occasions: Sullivan v Moody supra at [57]; D’Orta Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 at per McHugh J at [101]; State of New South Wales v Godfrey & Godfrey [2004] NSWCA 113 per Spigelman CJ at [68] and [72]; State of New South Wales v Paige [2002] NSWCA 235; (2004) 60 NSWLR 371 per Spigelman CJ at [115]; State of New South Wales v Heins [2005] NSWCA 258 per Handley JA at [24]; and State of New South Wales v Klein supra.

57 The following cases provide further illustrative examples of the reluctance by the courts to impose a duty of care on the police in the investigation and prosecution of criminal acts.

58 In Tame v New South Wales [2002] HCA 35; 211 CLR 317, considerations of the kind expressed in Hill led the Court to determine that a police officer engaged in a task relating to the investigation of an incident did not owe a duty of care to the person under investigation: Gaudron J at [57], per McHugh J at [125], per Gummow and Kirby JJ at [231], per Hayne J at [298], and per Callinan J at [335] – [336]. In this case a motorist sued the State for damages for psychiatric injuries sustained as a result of being told of an erroneous entry concerning her blood alcohol level contained in a traffic accident report. All seven judges found no duty to take reasonable care to avoid psychiatric injury to the motorist. Although the judges expressed themselves in different words, most focused on the inconsistency between the asserted duty of care and a police officer's duty in carrying out and recording the results of an investigation.

59 In Wilson v State of New South Wales, supra, the plaintiffs brought an action in negligence against the Department of Community Services and the NSW Police Service (as it was then known). The plaintiffs had been charged in relation to acts of sexual assault committed against children. The charges were ultimately dismissed. They alleged that the police owed a duty of care which required them to have conducted a proper and thorough investigation of the facts relating to the alleged charges of sexual abuse which they intended to bring against the plaintiffs, and to carry out such investigation in accordance with proper police practice and procedure.

60 After extensively reviewing the authorities, including Hill, O’Keefe J said (at 422 [63]):

The foregoing line of authority in my opinion strongly supports the conclusion that an action for negligence under the common law does not lie in respect of the exercise by police of their investigative functions on the basis that the investigations conducted were inadequate and that no action for negligence under the common law lies in respect of the performance of police prosecutorial functions, whether in the initiation of the prosecution, in its conduct or in respect of its continuance to the time of decision by a curial body.

61 Sullivan v Moody, supra, identified other factors which would hinder the development of a duty of care, namely the need for consistency and compatibility in obligations imposed on the effected parties. The High Court in a joint judgment held that a duty of care was not owed to an alleged perpetrator of sexual assaults by doctors and social workers who were engaged to investigate whether children had been the victims of such sexual assaults. Their Honours commented at 581 [55]:

A duty of the kind alleged should not be found if that duty would not be compatible with other duties which the respondents owed.

And at 582 [60]:

Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.

62 The joint judgment cited Hill with approval, noting the reference by Lord Keith to the fact that the conduct of a police investigation involves a variety of decisions on matters of policy and discretion, including decisions as to priorities in the allocation of resources before stating (at [57]) that “to subject those decisions to a common law duty of care, and to the kind of judicial scrutiny involved in an action of tort, was inappropriate.”

63 As to the general existence of a duty of care, it was explained that the mere fact that the actions of one may affect another does not in itself create legal liability:

[42] The argument was conducted upon the basis that it was foreseeable that harm of the kind allegedly suffered by the appellants might result from want of care on the part of those who investigated the possibility that the children had been sexually abused. But the fact that it is foreseeable, in the sense of being a real and not far-fetched possibility, that a careless act or omission on the part of one person may cause harm to another does not mean that the first person is subject to a legal liability to compensate the second by way of damages for negligence if there is such carelessness, and harm results. If it were otherwise, at least two consequences would follow. First, the law would subject citizens to an intolerable burden of potential liability, and constrain their freedom of action in a gross manner. Secondly, the tort of negligence would subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms. A defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care.

64 State of New South Wales v Klein, supra, involved a claim in negligence relating to the actions of police officers who fatally shot a man in a siege. The action was brought by his mother, father, siblings and sister-in-law who claimed that the police owed them a duty of care to avoid causing them psychiatric harm. Young CJ in Eq, with whom Beazley and Santow JJ agreed, referred to cases such as Hill, supra, Sullivan v Moody, supra, D’Orta-Ekenaike v Victoria Legal Aid, supra, and Cran v State of New South Wales [2004] NSWCA 92; 62 NSWLR 95, before stating (at [43]):

The cases I have cited make it clear, to my mind, that there is no duty of care on a police officer to people such as the plaintiffs/respondents in the present situation unless they can fit themselves within either a case of express or implied assumption of responsibility or one of the possible extraordinary situations. The pleadings and the facts show neither.

65 In Cran, supra, Santow JA explained that a police officer may owe a duty of care to a member of the public if the nature of their relationship gave rise to an express or implied assumption by the officer of responsibility to the injured person. At 110 [52] he stated:

It arises where the police or prosecutorial authorities expressly or impliedly assume responsibility, to the person injured, who was entirely dependent on an undertaking so expressed or implied.

66 Cran was concerned with a claim for damages arising out of the incarceration of an innocent man on remand for about six weeks longer than would have been the case if police and prosecutors had followed standard procedures for obtaining an analysis of a substance suspected of containing a prohibited drug. Santow JA referred to various authorities, some of which I have mentioned above including Hill, and said (at [50]):

(R)ecent, binding authority stands in the way of imposing a duty of care, more especially where it would tend to have an inhibiting affect upon the discharge of police investigative functions or associated prosecutorial functions, recognising the hardship this will undoubtedly occasion for those left without a remedy.

67 In concluding at 113 [63] he said:

Regrettably for the appellant in the unfortunate circumstances that were inflicted upon him, I consider that on present authority, the greater public interest accorded unimpeded investigation by the police and, so far as relevant, the DPP in carrying out its prosecutorial function, precludes any duty of care to the appellant. The current state of the law, and the policy which underlies it, gives paramount weight to those considerations even overriding the factors of vulnerability and entire dependency. This is so though the decision is itself ministerial. As Ipp JA explains, there is no bright line between the functions of disclosure and investigation, or between administrative and investigative tasks. Their efficient performance may be put at risk by the very prospect of civil action designed to provide sanctions against inefficiency; that, any rate, is the policy consideration reinforcing the immunity.

68 Despite these cases weighing against the imposition of a duty of care in negligence, Hill is not authority for the proposition that there is immunity from liability in negligence for police officers in all circumstances; see State of NSW v Tyszyk, supra, at [121]. In Tyszyk the Court of Appeal dealt with whether police owed a duty of care to a pedestrian who was injured by a water pipe that had been dislodged from the side of a building, with the police officers in question being aware of the danger. Campbell JA held that whilst policy considerations did not preclude the finding of a duty of care, the finding of a duty of care based on the ‘salient features’ approach was not warranted. His Honour made it plain that in his opinion each case would depend on its own facts.

69 Tyszyk, was followed in State of New South Wales v Spearpoint [2009] NSWCA 233, which involved an application for leave to appeal by the State against a District Court judge’s refusal to summarily dismiss a statement of claim alleging, in substance, that police had failed to perform their investigative and prosecutorial duties. The plaintiffs had made a number of complaints to police in respect of a man in respect of whom they feared for their safety and wellbeing. This man was acting in breach of an apprehended violence order. It was alleged that having called upon the police to take action on two successive days, on the third day the man attended the plaintiff’s home and caused injury, loss and damage.

70 It was contended on behalf of the State that, first, there was no duty of care for public policy reasons and reliance was made particularly on Hill; secondly, courts seek to maintain coherence in the law and that a recognition of a duty of care would result in the court acknowledging conflicting obligations on police officers; thirdly, the law did not impose a duty on a person to protect another from harm “to a third person” (sic – perhaps “from a third person”, the judgment was delivered ex tempore).

71 In dealing with those submissions, IPP JA stated:

[9] There are many cases in which it has been held that police officers and the police service as a whole do not owe a duty of care to a plaintiff in the particular circumstances of each of those cases but so far there is no authoritative decision in Australia which holds that there is an absolute immunity afforded to police for their conduct in the course of their duties.

72 His Honour endorsed (at [10]) the remarks of Campbell JA in Tyszyk concerning police not enjoying a general immunity from action for negligence and that each case would depend on its facts.

73 I digress to mention that one feature of the facts in Spearpoint was that it was pleaded that the plaintiffs had been informed by police that a warrant for the arrest of the offender was in existence and that he would be detained. This raised the possibility that it might be established at final hearing that the plaintiffs had relied upon the police for their protection, that the police had assumed a responsibility and that the plaintiffs had altered their position to their detriment as a consequence: see Ipp JA at [14] and Allsop ACJ at [24].

74 Spearpoint serves to demonstrate the caution that must be exercised by a court considering a strike out application. The observations in the judgment of Allsop ACJ are important to bear in mind. However, in the present case, it has not been demonstrated that the matter cannot be dealt with upon the same basis that it was dealt with in the court below, that is, upon an assumption of the facts as pleaded. There has been no real suggestion that further matters might be established in the evidence at final hearing that went beyond the pleaded facts.

75 The plaintiff in the present case contends that the circumstances of this case establish an assumption of responsibility. Although this has been recognised as a “narrow exclusion zone” where a duty of care is recognised, it is necessary for the plaintiff to establish the special relationship giving rise to that assumption: per Santow JA in Cran, supra, at [52] to [63]. His Honour referred to the judgment of Gleeson CJ in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 where the Chief Justice cited the following from the judgment of Mason J in Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672 at 687:

The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care. If the invitor be subject to a special duty, it is because he assumes a particular responsibility in relation to the safety of his premises and the safety of his invitee by inviting him to enter them. And in Meyers v. Easton the undertaking of the landlord to renew the roof of the house was seen as impliedly carrying with it an undertaking to exercise reasonable care to prevent damage to the tenant's property. In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised. (Footnotes omitted).

76 Assuming the facts as pleaded, the present case is not analogous to those cases where a special relationship has been found to exist and nor has the plaintiff provided persuasive argument as to the existence of that relationship. In my view the types of policy considerations discussed in cases such as Hill, Tame and Cran strongly militate against a finding that Senior Constable Darlington had a duty of care that would found an action in negligence in his dealings with the plaintiff for the following reasons.

77 Police officers are charged with the primary responsibility of detecting and preventing crime such as to improve the general welfare of all members of society. To impose the duty contended for may cause police officers to devote additional resources in providing advice relating to matters, which in essence, are unrelated or not connected to their police functions.

78 If potential liability were to be recognised it would open the door to actions being brought against police officers on the ground that they failed to give advice or failed to give the right advice or failed to give the best advice. This may lead to police officers operating with a defensive frame of mind contrary to the public interest in officers performing their duties with skill, speed and dispatch.

79 The manner in which police investigations proceed, such as the present, must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Effectively, to create the duty contended for would require courts to analyse the actions of police officers in performing their investigatory and prosecutorial functions for the purpose of determining the issue of negligence.

80 There could well result a significant diversion of police resources into responding to and defending negligence actions and away from the performance of core police functions.

81 The facts surrounding the plaintiff’s complaint are analogous to many cases involving unjust contracts. That is, as a result of her vulnerability and the superiority of Senior Constable Darlington, the plaintiff entered into a contract that she would not have otherwise entered into had she not been in such distress, knowledge of which lay with Senior Constable Darlington. A finding of a duty of care in negligence in such circumstances would involve the courts embarking upon an examination of issues which, arguably, is better dealt with in the law of contracts. As was said in Sullivan v Moody at [52]:

There are cases, and this is one, where to find a duty of care would so cut across other legal principles as to impair their proper application and thus lead to the conclusion that there is no duty of care of the kind asserted.

82 The plaintiff alleged that the performance of the officer’s duties was coloured or tainted by his own desire to obtain a commercial benefit and that for this reason he failed to discharge his general police obligations. The plaintiff’s counsel went so far as to suggest that Constable Darlington did not charge the perpetrator of the crime committed against her or encourage the plaintiff to take out an apprehended violence order as to do so would risk exposure of his purchase of the plaintiff’s car (9.09.09 at T8). Such allegations are more directed to the intentional tort of misfeasance in public office (see Sanders v Snell (No 2) [2003] FCAFC 150; 130 FCR 149 at [86] ff for discussion) and not negligence. The plaintiff has brought an action in negligence. However, as the defendant rightly points out, the actions complained of do not constitute acts in negligence. As Lord Atkinson stated in Donoghue v Stevenson [1932] UKHL 100; [1932] All ER Rep 1; [1932] AC 562 at 580 “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”. However, the case presented by the plaintiff is not a case that imports notions of reasonableness, foreseeability and other commonly expressed tenants of negligence. The formulation of the plaintiff’s case entails an allegation of the officer acting to the detriment of the plaintiff because of some desire of personal gain.

83 Counsel for the plaintiff sought to draw an analogy with cases in which solicitors have been found to have acted with a conflict of interest and in so doing have been held to have breached a duty of care. He gave an example of a solicitor acting for both parties in a loan transaction giving preference to the interests of one party over the other. This is not an apt analogy at all. A solicitor in such circumstances would clearly have a duty in respect of both clients and would be acting in the course of the solicitor/client retainer. This does not at all aid an argument that Senior Constable Darlington was discharging his duties as a police officer when agreeing to purchase the plaintiff’s car.


Vulnerability, control and the degree of reliance by the plaintiff upon the defendant

84 The plaintiff alleges that she attended upon a police station as a victim of assault who was in a state of emotional distress. She was at the same time concerned about making significant personal and financial decisions. It was thus contended that she was vulnerable and subject to the control of the defendant.

85 Vulnerability of the plaintiff can be an important factor in determining whether a duty of care should be created: Perre v Apand Pty Limited [1999] HCA 36; 198 CLR 180; Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1; Reynolds v Katoomba RSL All Services Club Ltd, supra, per Spigelman CJ at [30]-[43].

86 In Hunter Area Health Service v Presland [2005] NSWCA 33; 63 NSWLR 22, Spigelman CJ explained the concept of vulnerability:

[19] The concept of vulnerability in this context is a reference to the inability of a particular person to protect himself or herself from the consequences of the conduct alleged to be negligent.

87 In Crimmins, McHugh JA stated:

[100] ... I use the term ‘vulnerable’ in the sense that, as a practical matter, the plaintiff has no or little capacity to protect himself or herself.

88 In this case, and accepting the assumed facts as per paragraph 1 – 20 of the statement of claim, the plaintiff cannot be described as one who had an inability to protect herself. Whilst her decision to sell her car so cheaply might have been questionable, it is not pleaded that she was compelled, threatened, coerced, tricked, enticed, overpowered, overawed or anything along those lines at the time she made her decision to sell the car to the officer for $100. Moreover the pleadings do not purport to assert that the plaintiff was at some ‘special risk’ of the conduct of the defendant: State of New South Wales v Godfrey & Godfrey, supra, at [67].

89 The plaintiff’s submission that the defendant had effective control over the plaintiff represents a misunderstanding of the concept: see, for example, Howard v Jarvis [1958] HCA 19; 98 CLR 177 at 183; Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 per Gaudron, McHugh and Gummow JJ at [102]); Graham Barclay Oysters v Ryan [2002] HCA 54; (2002) 211 CLR 540 particularly, but not only, per Gummow and Hayne JJ at [149]-[152]; and Modbury Triangle Shopping Centre Pty Ltd v Anzil, supra, per Gleeson CJ at [19]-[21], Gaudron J at [42]-[43], and per Hayne J at [110]-[116]. On no view of the assumed facts could it be said that the plaintiff was under the control (in the sense discussed in those cases) of the police or, specifically, Senior Constable Darlington.

90 Assuming the facts as pleaded it may be inferred that the plaintiff relied to some degree upon the constable to do what a police officer should do for a victim of the crime that she was reporting to him. It is not pleaded, however, that she relied upon him to provide, that she expected him to provide, or that she was led to believe that he would provide, advice concerning a commercial transaction.

91 A consideration of these features do not support a finding of a duty of care.


Any potential indeterminacy of liability

92 The extent of liability created is an important consideration in determining the imposition of a duty of care: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [67]; Sullivan v Moody, supra, at [61]; Tame v New South Wales, supra, at [239]; New South Wales v Godfrey, supra, at [65]; State of NSW v Tyszyk, supra, at [138].

93 The plaintiff’s contention that she is the only person who was affected by the alleged failure of the exercise of the asserted duty is correct. However, consideration must be given to the potential class of persons who may fall within the ambit of the duty and the potential liability thus created. It is reasonably conceivable that to impose such a duty of care will create an entitlement to sue in negligence for any victim of crime (at least) who fails to receive advice or receives the wrong advice from a police officer. That is an extremely large class of people.


No duty to engage in a positive act

94 The common law does not usually impose a duty of care to engage in positive action: State of NSW v Tyszyk, supra, at [140]; Agar v Hyde, supra at [68].

95 In Graham Barclay Oysters Pty Ltd v Ryan, supra, McHugh JA stated:

[81] Ordinarily, the common law does not impose a duty of care on a person to protect another from the risk of harm unless that person has created the risk. And public authorities are in no different position. A public authority has no duty to take reasonable care to protect other persons merely because the legislature has invested it with a power whose exercise could prevent harm to those persons. Thus, in most cases, a public authority will not be in breach of a common law duty by failing to exercise a discretionary power that is vested in it for the benefit of the general public. But if the authority has used its powers to intervene in a field of activity and increased the risk of harm to persons, it will ordinarily come under a duty of care. So also, if it knows or ought to know that a member of the public relies on it to exercise its power to protect his or her interests, the common law may impose a duty of care on the authority. If the authority comes under a duty of care, the failure of the authority to exercise a discretionary statutory power may give rise to a breach of the common law duty of care. But subject to these exceptions, ordinarily the common law will not impose an affirmative duty of care on an authority which would have the result that a failure to exercise a statutory power constitutes a breach of that duty.

96 Assuming the facts pleaded, Senior Constable Darlington did not use his powers to intervene in a particular field of activity and thereby increase a risk of harm to the plaintiff. Further, the pleadings do not assert a power which the officer had to carry out in order to comply with the asserted duty of care. It does not suffice for the plaintiff to point to section 6 and 7 of the Police Act and the Victims Charter of Rights (which must be disregarded in any event – see earlier) and assert that the officer had some general power to exercise. Moreover, it is not pleaded that the plaintiff relied upon the officer to exercise this unknown power. The plaintiff is an autonomous individual and unless Senior Constable Darlington was required by some authority to carry out the purported duty, it is difficult for the plaintiff to establish that the duty exists.

97 In Stuart v Kirkland–Veenstra [2009] HCA 15 Heydon, Gummow and Hayne JJ said (at [112]):

There can be no duty to act in a particular way unless there is authority to do so.

98 In Hunter Area Health Service and Another v Presland, supra, Spigelman CJ said (at [12]):

The purpose or purposes of the exercise of the power identifies the beneficiary of its exercise. Insofar as the beneficiary is the public at large, or a section of the public, it is unlikely that a duty of care will attach to the exercise of the power.

99 In this case, the plaintiff can only refer to a vague notion of the general powers of the police in support of the duty of care. The purpose of the exercise of the general police powers would be to provide benefit to the public at large and as Spigelman CJ has indicated, it is unlikely that a duty of care can attach to such general powers.


Conclusion

100 The assessment of whether a duty of care should be found is not made upon a consideration of the individual salient features but upon their cumulative effect: Makawe Pty Limited v Randwick City Council, supra, per Hodgson JA at [48], But in this case, all of the individual features are against a finding that the duty of care propounded by the plaintiff existed and, most certainly, the cumulative effect points powerfully in that direction.

101 The learned magistrate was correct to find “there is no such duty of care”.

102 The appeal in this respect has no merit.


Appeal against order for indemnity costs

103 The Civil Procedure Act 2005 and the Uniform Civil Procedure Rules govern orders in relation to costs. Section 98 of the Act provides, relevantly:

(1) Subject to rules of court and to this or any other Act:

(a) costs are in the discretion of the court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

104 UCPR r 42.1 provides:

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

105 Magistrate Bartley referred to Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) FCA 202; 81 ALR 397 at 401 and Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353. Both cases support the proposition that an indemnity cost order may be made if a party has maintained proceedings that they should have known had no real prospect of success.

106 I do not believe that this case had any prospect of success and that this should have been known. First, Constable Darlington was performing his investigatory functions at the time the purported duty arose. There were no extraordinary circumstances or special relationship that would have given rise to an exception to the prima facie principle that a Police Officer does not owe a duty of care in the performance of their investigatory functions.

107 Alternatively, if Constable Darlington was not performing an investigatory role, he was acting in a private capacity, and not performing any police function that would support the imposition of a duty of care. In fact, that is the better view, even assuming the facts pleaded.

108 It appears to me that the reality of the situation is that the plaintiff made a hasty decision to sell her car to a person who, coincidentally, happened to be the police officer she was reporting a crime to. She has not pleaded anything to suggest that she thought she was selling the car to the officer in anything other than his capacity as a private citizen. Further, although she claims to have been in a distressed state and not in the best frame of mind to make commercial decisions, she has not pleaded anything to suggest that the decision was not hers or that it was made as a result of influence being brought to bear by somebody else. She later regretted her decision. For some reason best known to her and her legal advisers she chose to pursue an action against the State of New South Wales with a quite artificially constructed and untenable complaint that there had been negligence. There never was any reasonable prospect of the proceedings being successful.

109 Error in the discretion of the magistrate to order that costs be paid on an indemnity basis has not been demonstrated. The appeal in this respect also has no merit.


Costs of the appeal

110 With the dismissal of the appeal, costs should follow the event. To my mind there is a question as to whether indemnity costs should be ordered. The proceedings should not have been brought. A magistrate gave a considered judgment and ruled, in effect, that this was so yet the plaintiff sought to trouble the defendant, and this Court, with an appeal which was entirely without merit. Nevertheless when I raised the question of costs of the appeal with counsel for the defendant this morning he only sought an order for costs on the ordinary and not indemnity basis. Accordingly I will make an order in those terms.


Orders

1. Appeal dismissed

2. Order of the Magistrate that the plaintiff pay the defendant’s costs on an indemnity basis confirmed.

3. The plaintiff is to pay the defendant’s costs of the appeal.

111 Following the delivery of the above reasons and announcement of the orders, counsel for the defendant informed me of an offer of compromise which had been made to the plaintiff on 7 August 2009. After hearing further from both counsel I returned to my view that costs of the appeal should be ordered on an indemnity basis.

112 Order 3 above is varied by the addition of the words “on an indemnity basis”.

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LAST UPDATED:
5 March 2010