Case: Zalewski v Turcarolo [1995] 2 VR 562
Outcome: cited
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. 97 By way of illustration I would note that a duty of care has been assumed, or found to exist: (i) in the conduct of a high speed police motor vehicle pursuit of a suspected criminal ( Schilling v Lenton (1988) 47 SASR 88; see also Marshall v Osmond [1983] 1 QB 1034; 57 Am Jur 2d, above SS439); (ii) where a superior officer failed to go to the assistance of another officer whom he knew was being attacked close by and for whom he had a responsibility ( Costello v Chief Constable of the Northumbria Police , above; Mullaney v Chief Constable of West Midlands Police [2001] EWCA Civ 700) ; (iii) in positively provoking or acting in disregard of a real and substantial risk of harm to a person ( Zalewski v Turcarolo , above) or property ( Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242); (iv) in providing for the safety and well-being of persons in police custody ( Hall v Whatmore [1961] VR 225; Howard v Jarvis [1958] HCA 19 ; (1958) 98 CLR 177; Reeves v Commissioner of Police of the Metropolis [1999] UKHL 35 ; [2000] 1 AC 360); (v) in relation to preserving the confidentiality of information provided by an informant identifying a criminal suspect, the disclosure of which was likely to expose the informant and her husband to a greater risk of harm at the hands of the suspect than the ordinary risk to the general public ( Swinney v Chief Constable of the Northumbria Police ); (vi) in Canada, to protect a woman who was unaware she was knowingly being used by police as "bait" to catch a serial rapist in circumstances in which the police deliberately failed to warn of the risk she faced for fear of compromising their investigation though knowing that the rapist would attack again and cause irreparable harm to his victim ( Doe v Metropolitan Toronto (Municipality) Commissioners of Police (1998) 160 DLR 4 th 697); and (vii) in a United States jurisdiction, in delaying in responding to calls made by assault victims, the assurance that help was on its way having been given to them ( Chambers-Castanes v King County 669 P2d 451 (1983); and see Zitter, "Liability for Failure of Police Response to Emergency Call" , 39 ALR 4 th 691).