In Stuart v Kirkland-Veenstra (2009) 254 ALR 432, the High Court found that a power to act conferred on a statutory authority does not necessarily give rise to a duty of care.
Deacons represented the State of Victoria (the State) (who was a respondent to the appeal for model litigant purposes) in the High Court proceedings. The State’s submissions in support of the officers’ appeal were accepted by all six sitting judges of the High Court.
On 22 August 1999, two police officers patrolling a local car park found Mr Veenstra sitting inside his car with a hose leading from the exhaust pipe to the car interior. The engine was cold. Mr Veenstra told the officers that he had been in the car park for two hours and had contemplated “doing something stupid” but had changed his mind. Mr Veenstra told the officers that he had decided to go home to talk to his wife.
According to the officers, he sounded rational and was responsive to their questions. He declined their offers of assistance or medical attention and, without prompting, he removed the hose from the exhaust.
Under the Mental Health Act 1986 (Vic) (the Act), police officers in Victoria have the power to apprehend a person who appears to be mentally ill and to have attempted, or to be likely to attempt, suicide. Similar powers exist in other State and Territory Acts. In this case, having formed the view that Mr Veenstra did not appear mentally ill, the officers allowed him to leave the car park. Unfortunately, Mr Veenstra later committed suicide by carbon monoxide poisoning.
Mr Veenstra’s widow, Mrs Kirkland- Veenstra, instituted proceedings against the two police officers and their employer, the State of Victoria. She alleged that the officers owed her and her husband a duty of care and had breached it by failing to apprehend Mr Veenstra pursuant to the Act. The trial judge ruled that there was no duty of care and gave judgment for the defendants. Mrs Kirkland-Veenstra appealed to the Victorian Court of Appeal which, by majority, allowed the appeal. The majority found that the officers had entered upon the exercise of their statutory powers and that they had a duty of care at common law, which arose independently of the Act, to exercise their statutory powers reasonably to protect those at risk.
High Court’s Judgment
The High Court rejected the majority’s finding that attempting suicide or suicide itself must give rise to a legal presumption or appearance of mental illness. The High Court noted that the police officers’ determination that Mr Veenstra did not appear mentally ill was uncontested. Accordingly, French CJ, Crennan and Kiefel JJ considered that:
- as the precondition for the exercise of the power to apprehend Mr Veenstra under the Act was not met
- the statutory power was not triggered nor exercised, and
- there was no basis for the creation of a duty of care founded under the Act.
The decision of Gummow, Heydon and Hayne JJ is of particular relevance to statutory authorities. Their Honours found that, in deciding whether a duty arises for the holder of statutory power, it is necessary to examine if the statutory regime creates a relationship between the power holder and a class of persons which displays characteristics that would require the intervention of the tort of negligence. Characteristics to be examined include the:
- degree and nature of control exercised over the risk of harm that has eventuated
- vulnerability of those who depend on the proper exercise of the statutory power, and
- consistency of the asserted duty of care with the purpose of the relevant statute.
Based on the facts of this case, the High Court found that it was not the officers who controlled the source of the risk of harm to Mr Veenstra; it was Mr Veenstra alone who was the source of that risk. The Court gave primacy to the common law’s emphasis on personal autonomy and held that the relationship between the police officers (as holders of statutory power) and Mr Veenstra (as the person against whom power would be exercised) was not one in which a duty of care arose.
Significantly, this decision represents a step back by the High Court from previous liability findings in terms of the existence of a duty owed by State agencies. There is a new recognition of personal autonomy and the consequences of such personal decisions in the law of torts.