Stuart v. Kirkland-Veenstra

237 CLR 215; 83 ALJR 623; 254 ALR 432; [2009] HCA 15
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In this matter two police officers and the State of Victoria were being sued by Tania Kirkland-Veenstra, the spouse of a man who committed suicide. The claim was a breach of their statutory duty of care to both herself and the deceased.

The two police officers found Mr. Veenstra in a park, where he was making preparations for a suicide attempt. However, after discussion with Mr. Veenstra, both were under the impression that he was not suffering a mental illness, and that he would not commit suicide. Later that morning Mr. Veenstra committed suicide at home.

The Victorian Mental Health Act 1986 (the Act) s 10 authorised police to apprehend any person and arrange an examination by a registered medical practitioner, on a reasonable belief that the person was mentally ill and had attempted or was likely to attempt suicide, harm themselves or harm another person.

The district court initially held that no statutory duty existed. Upon appeal the matter was remitted to the County Court for retrial. This case was an appeal to the High Court from the Court of Appeal of the Supreme Court of Victoria

The High Court noted that police had the authority to apprehend people who they expected to commit suicide, provided the person seemed to be suffering a mental illness. It pointed out, however, that there is no per se criminal responsibility for suicide and further that there is no necessary link between suicide and mental illness. It considered, rather, that state “intervention to prevent suicide may now be seen, at least in part, as the exercise of the parens patriae role and the interest of the State in protecting the life of its own citizens” (para. 45).

The Court also considered that the police were capable of determining whether a person was suffering from a mental illness. The Act required “subjective belief,” not “clinical judgment,” on the part of the police officer. In the opinion of the Court, the “power is not enlivened by objective circumstances but by the opinion of the officer” (para. 55).

However, there was no statutory duty of care on the part of the police to prevent self-harm. The Court noted that in considering the existence of such a duty, it needed to consider “distinctions between decisions taken at policy level and decisions of an operational character, between misfeasance and non-feasance and between statutory powers and statutory duties” (para. 52).

A statutory duty could be derived based on the nature, scope and terms of the statute such that it facilitated a relationship between the authority and a class of persons which gives rise to tort liability. However, as the statutory power was based on the principle of “least restrictive alternative,” and the police had no control over the actions of Mr. Veenstra might take towards suicide, the Act did not establish a relationship sufficient to give rise to a duty of care.

Furthermore, there was no duty to exercise the power granted by the statute. The Court held that the term “may” in the statute’s phrasing of the power gave rise to a discretion to exercise the power. A decision to not exercise the discretion was not a breach of duty of care held by policemen because it was an omission by the policemen to not act. The common law only required reasonable care when a positive action was taken under a statutory power.

“The judgments of both the Chief Justice and the President turned upon the availability to the officers of the power to apprehend persons under s 10.  On the unchallenged fact as found by the trial judge, that they believed that Mr. Veenstra was not mentally ill, the power to apprehend him was never enlivened.  And on the facts they did not believe, when they decided to let him drive home, that he would be likely, shortly afterwards, to attempt to take his own life.  Absent that belief, the power could not be enlivened.” Para 62.

“Personal autonomy is a value that informs much of the common law.  It is a value that is reflected in the law of negligence.  The co‑existence of a knowledge of a risk of harm and power to avert or minimise that harm does not, without more, give rise to a duty of care at common law.  As Dixon J said in Smith v. Leurs, ‘[t]he general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third’.  It is, therefore, ‘exceptional to find in the law a duty to control another's actions to prevent harm to strangers’.  And there is no general duty to rescue.  In this respect, the common law differs sharply from civil law.  The common law has been described as ‘individualistic’, the civil law as ‘more socially impregnated’.” Para 88.

“When a duty to control the actions of another is found it will usually be because the person to be controlled is not autonomous.  Thus, the duty of care which a gaoler owes a prisoner is owed because the prisoner is deprived of personal liberty and the gaoler has assumed control of the prisoner’s person.  The prisoner does not have autonomy.” Para. 90.

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