Case: Thompson v Vincent [2005] NSWCA 219
Outcome: cited
It equally is well recognised that to impose common law duties of care on police officers to a particular member or members of the public in addition to their duty to the general public can, on occasion, be "inconsistent with the proper and effective discharge of [their public] responsibilities": cf Sullivan v Moody , at [62]; (whether those responsibilities arise under a statute such as the AFP Act or at common law) and to be impermissible for that reason. As the observations of Gummow and Hayne JJ in Tame illustrate, this inconsistency is often revealed where, in a setting in which injury is foreseeable if care is not taken in the conduct of a police investigation, a suspect, a victim, or a third party injured by acts or omissions of the police seeks to raise a claim in negligence against the police: Hill , above; Thompson v Vincent [2005] NSWCA 219 at [152] - [154] ; Batchelor v State of Tasmania [2005] TASSC 11 ; Cran v State of New South Wales [2004] NSWCA 92 ; (2004) 62 NSWLR 95; see also D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 ; (2005) 214 ALR 92 at [101] ; State of New South Wales v Paige [2002] NSWCA 235 ; (2002) 60 NSWLR 371 at [115] - [117] . Save in exceptional circumstances: cf Hill at 62; Batchelor , above; and in North America see e.g. Doe v Board of Commissioners for Municipality of Metropolitan Toronto (1990) 72 DLR 4 th 580 ("Doe"); Eaton, "Liability of Municipality or Other Governmental Unit for Failure to Provide Police Protection from Crime" 90 ALR 5 th 273 at SS4 ; 57 Am Jur 2d, "Municipal, County, School and State Tort Liability", SSSS407-418; such attempts have been unsuccessful. 95 Hill's case, I would note, has been referred to approvingly in some number of High Court judgments: see e.g. Sullivan v Moody at [57]; Tame at [231], [335]; see also Thompson v Vincent at [153]-[154]; Cran v State of New South Wales , at [33] ff; but cf contra Zalewski v Turcarolo [1995] 2 VR 562 a decision which pre-dated Sullivan v Moody . 96 I will return below to whether such an exclusionary principle based on public policy accurately reflects the law in this country; see Thompson v Vincent at [153]-[154]; or whether the "principle" does no more than represent the usual or predictable, but not invariable, consequence of the evaluation of whether the relationship between the police and an individual in a given instance imports a duty of care in the context of a police investigation: cf Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 ; (2002) 211 CLR 540 at [149] . Before so doing, it is important to emphasise that police officers are not as such and in all circumstances immune from the law of negligence for acts or omissions in the course of official duty that occasion foreseeable harm. The contrary is clearly the case, as a large case law in common law jurisdictions, including England, attests: Zalewski v Turcarolo ; Costello v Chief Constable of the Northumbria Police [1999] 1 All ER 550; see also Grubb (ed), The Law of Tort , "The Police" 16.73 ff (2002); Linden, Canadian Tort Law , 286, 625 (7 th ed 2001); Todd (ed), The Law of Torts in New Zealand , 204, 212 ff (3 rd ed, 2001); Eaton, above 90 ALR 5 th 273. 98 What is noticeable in the case law of common law countries illustrated above (including that of England) is that it is accepted both that positive dangerous behaviour by police can still attract a duty of care and that, particularly in cases of omissions to act, the police may nonetheless have, or have assumed such a particular responsibility to take care of a person as to give rise to a "special relationship" with that person which attracts a duty of care to him or her: see e.g. Brooks v Commissioner of Police at [22] and [29]; Costello v Chief Constable of the Northumbria Police esp per May LJ; in US jurisdictions the "special relationship" exception is well recognised in a range of otherwise negligence exempt areas of police activity, see e.g. Eaton, above at SS4 ; see also 57 Am Jur 2d, above, at SS410 ff. What equally is notable is the varying significance given to the particular "operational" context in which the relationship giving rise to a duty of care is said to exist. Hence the ready imposition of a duty of care to persons in police custody: Hall v Whatmore , above; and the corresponding reluctance to impose such a duty in the context of the conduct of a criminal investigation D'Orta Ekenaike v Victoria Legal Aid at [101]-[102]; see also Cran v State of New South Wales , above; or in preventing a breach of the peace: Thompson v Vincent , above. 104 As I earlier noted, the judgment of Gummow and Kirby JJ in Tame relied on Sullivan at [60] above when expressing the view that it was unlikely that an investigating police officer would owe a duty of care to a person whose conduct was under investigation. Sullivan equally was invoked by Hayne J and Callinan J to the same end in Tame . In its apparent endorsement of Hill at [57] in the above quotation, Sullivan along with Hill and D'Orta-Ekenaike v Victoria Legal Aid above, have been treated by the New South Wales Court of Appeal as recognising that there is "an area in which it has been held that the public law duties of police are not consonant with recognition of a private law duty of care in favour of a particular member of the public": Thompson v Vincent at [153]-[154]. Again, as I have already noted, Tame and its debt to Sullivan and Hill were relied upon again by the New South Wales Court of Appeal in Cran v State of New South Wales in privileging the greater public interested accorded unimpeded police investigation over the interest of a person suffering foreseeable harm as a result of an allegedly careless omission in the conduct of an investigation.