Case: Tame v New South Wales [2002] HCA 35 ; (2002) 211 CLR 317
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 . 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.