Stuart v Kirkland-Veenstra

Citation: (2009) 237 CLR 215


Appeal against decision of Supreme Court of Victoria Court of Appeal (VSCA).

Appellant police officers saw motor vehicle parked with tube leading from exhaust to rear window of car.

Officers believed occupant of vehicle contemplating suicide and spoke to occupant.

Occupant advised officers had contemplated doing 'something stupid' but declined offers of officers to contact doctor, family or psychiatric services.

Officers concluded occupant showed no signs of mental illness, was rational, responsible and co-operative and permitted occupant to leave.

Occupant took own life by securing hose from exhaust of own car and starting engine later on same day.

Respondent widow brought proceedings against appellants and State of Victoria claiming damages under (VIC) Wrongs Act 1958 Pt III for wrongful death of husband, and damages for personal injuries in form of nervous shock and post-traumatic stress disorder alleged to have been sustained by reason of alleged negligence of appellants.

Claimed appellants owed husband duty to take reasonable care to protect his and her health and safety by reason of common law, Victoria Police Manual and (VIC) Mental Health Act 1986 (MHA) s 10.

Alleged appellants breached duty of care by failing to apprehend husband and arrange for examination by medical practitioner under MHA s 10 and by failing to contact nearest CAT service and stay with husband until he had been assessed by service.

Victorian County Court (VCC) found appellants did not owe respondent or husband duty of care and entered judgment for appellants.

VSCA found to be inferred from MHA s 10 it was legislative view that to attempt suicide was to be mentally ill therefore duty of care existed.

VSCA set aside VCC decision and remitted proceeding for retrial.

HCA Judgement

Held, allowing the appeal (6:0):

Per Gummow, Hayne and Heydon JJ: The MHA s 10 did not found the respondent's action because although s 10 conferred a power, it did not impose a duty to exercise the power. Statutory power to act in a particular way, coupled with the fact that, if action was not taken, it was reasonably foreseeable that harm would ensue, was not sufficient to establish a duty of care to take that action. In the present case, it was the factor of control that was of critical significance. It was not the appellants who controlled the source of the risk of harm to the respondent's husband, it was the respondent's husband alone who was the source of that risk. Given the value of personal autonomy to the common law, and the reinforcement of this value by the MHA, this factor was of predominant importance. Accordingly, the characteristics of the relationship between the appellants (as holders of the power given by the MHA s 10) and the respondent's husband (as the person against whom the power would be exercised) did not answer the criteria for intervention by the tort of negligence.

Per Crennan and Kiefel JJ: The question of whether there was a duty at common law in this case required, as a minimum, a power given by statute. This was because it was the existence of a power, to avert the risk of harm, which would set the appellants apart from persons generally and the common law rule that no action was required to protect others. In the present case, it was the MHA that was the sole source of the power. Absent the holding of an opinion that the respondent's husband was mentally ill, the appellants did not have the power to apprehend in s 10 available to them. A condition necessary to the power did not exist in law. It followed that, in the circumstances of this case, the statutory provisions supplied no relevant statutory power to which a common law duty could attach.

Per French CJ: The duty of care which the majority in the VSCA found to exist could not have existed because the critical statutory power conferred by s 10, which was in the end the foundation of the duty of care in the circumstances of the case, did not exist absent the appellants' belief that the respondent's husband was mentally ill.

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