Case: Sullivan v Moody [2001] HCA 59 ; (2001) 207 CLR 562
Outcome: applied
I referred above to the absence of reference to the context in which the duty allegedly owed Scott Rush is said to arise for this reason. In Tame v New South Wales [2002] HCA 35 ; (2002) 211 CLR 317 ("Tame") at [231] Gummow and Kirby JJ observed in dicta: "It is unlikely that an investigating police officer owes a duty of care to a person whose conduct is under investigation. Such a duty would appear to be inconsistent with the police officer's duty, ultimately based in the statutory framework and anterior common law by which the relevant police service is established and maintained, fully to investigate the conduct in question." Their Honours cited in support of this view the decisions (inter alia) of Hill v Chief Constable of West Yorkshire Police [1987] UKHL 12 ; [1989] AC 53 ("Hill") at 63-65 and Sullivan v Moody [2001] HCA 59 ; (2001) 207 CLR 562 at [60] . Similar views were expressed in Tame by McHugh J at [125]-[126]; Hayne J at [298] and by Callinan J at [335]-[336]. 92 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 . 102 Sullivan v Moody did not involve an allegation of negligence against police officers. Its concern was with whether medical practitioners and social workers who had examined children for evidence of sexual abuse by their fathers in the setting of a statutory regime containing provisions for the protection of children (including mandatory reporting to a government department of reasonable suspicion of child abuse), owed a duty of care to protect such fathers in the conduct of their examinations, investigations and reporting. It was held unanimously by the High Court that they did not. The plaintiff fathers had alleged that, as a result of negligent examination, diagnosis and reporting, they had suffered shock, distress, psychiatric injury and consequential personal and financial loss. Unsurprisingly, given the opinions expressed by the Court, Sullivan v Moody has been influential in this country in later decisions and judicial commentary on police liability for negligence in the conduct of investigations. 103 In rejecting the duty of care argued for in Sullivan v Moody the Court observed: "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. 56. How may a duty of the kind for which the appellants contend rationally be related to the functions, powers and responsibilities of the various persons and authorities who are alleged to owe that duty? A similar problem has arisen in other cases. The response to the problem in those cases, although not determinative, is instructive. 57. In Hill v Chief Constable of West Yorkshire , the House of Lords held that police officers did not owe a duty to individual members of the public who might suffer injury through their careless failure to apprehend a dangerous criminal. Lord Keith of Kinkel pointed out 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 deployment of resources. To subject those decisions to a common law duty of care, and to the kind of judicial scrutiny involved in an action in tort, was inappropriate. ... 60. The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. 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 statutory scheme that formed the background to the activities of the present respondents was, relevantly, a scheme for the protection of children. It required the respondents to treat the interests of the children as paramount. Their professional or statutory responsibilities involved investigating and reporting upon, allegations that the children had suffered, and were under threat of, serious harm. It would be inconsistent with the proper and effective discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who were suspected of being the sources of that harm. The duty for which the appellants contend cannot be reconciled satisfactorily, either with the nature of the functions being exercised by the respondents, or with their statutory obligation to treat the interests of the children as paramount. As to the former, the functions of examination, and reporting, require, for their effective discharge, an investigation into the facts without apprehension as to possible adverse consequences for people in the position of the appellants or legal liability to such persons. As to the latter, the interests of the children, and those suspected of causing their harm, are diverse, and irreconcilable. That they are irreconcilable is evident when regard is had to the case in which examination of a child alleged to be a victim of abuse does not allow the examiner to form a definite opinion about whether the child has been abused, only a suspicion that it may have happened. The interests of the child, in such a case, would favour reporting that the suspicion of abuse has not been dispelled; the interests of a person suspected of the abuse would be to the opposite effect:" emphasis added. 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. 114 There is a short answer to the alleged duty. Even if it be the case that AFP officers said they would act, or had acted, in a particular way towards Scott Rush at the airport and failed to do so, neither their representations and their failure to act nor the circumstances of the Myer-Patching conversations could give rise to a duty such as is alleged. The proposed duty would be inconsistent with the duty owed by the AFP to the public at large in the conduct of its investigations into the Bali drug trafficking operation: cf Sullivan v Moody at [60]. 115 I have already indicated that the AFP officers concerned did not act in contravention of the AFP Act in deciding to, and in making, the 8 and 12 April 2005 communications to the INP. They were acting in performance of their functions under the AFP Act and consonantly with ministerial directions. The communications made had a proper and rational purpose in the furtherance of that police investigation. The proposed duty would only qualify and impede the conduct of the investigation embarked upon by the AFP. It would elevate the interests of Scott Rush over the public interest that the AFP was serving under its legislation to the extent that the two collided, as it did in the making of the request to the INP. 116 If, as the other applicants seem to suggest albeit faintly, a like duty was owed them its obvious effect would have been to compromise the investigation itself in an important respect. No assistance of the type sought could have been asked of the INP notwithstanding that the investigation involved transnational criminal activity and that the assistance in fact sought, as I have noted, was for a proper purpose in furtherance of the AFP's statutory functions. 117 In the cases of Scott Rush and of the other applicants the duty contended for cannot be reconciled with the nature and purpose of the functions being exercised by the AFP officers concerned, the discretions conferred on them in virtue of the task they were involved in, and the policy directive they were, apparently, implementing: cf Sullivan v Moody at [62]. Accordingly, to adopt Santow JA's observations in Cran v State of New South Wales at [63], the greater public interest accorded unimpeded investigation by the AFP precludes in this case any duty of care owed to Scott Rush or to the other applicants. Such is the current law in this country and the policy informing it, that the interests of the applicants were subordinated to the public interests served by the AFP in their conduct of the investigation in question.