Case: Brooks v Commissioner of Police for the Metropolis [2005] UKHL 24 ; [2005] 1 WLR 1495
Outcome: considered
Before I express my own views on this, I should emphasise the following. Bearing in mind that this is an application for preliminary discovery where information about the possible commission of a tort is being sought, exceptional caution must be exercised before reaching a conclusion that, whatever the information that might be disclosed as a result of an order for information discovery, that information could make no difference for the reason that the duty contended for could not even arguably be imposed on AFP members when conducting the drug trafficking investigation in question: cf the observations of Lord Bingham in Brooks v Commissioner of Police for the Metropolis [2005] UKHL 24 ; [2005] 1 WLR 1495 at [4] . 90 As noted earlier, there are conflicting versions as to the substance of the conversations between Robert Myers (on behalf of Lee Rush) and Mr Patching of the AFP. The alleged duty of care is premised upon acceptance of Myers' version of what transpired. For present purposes, and dealing with the matter on the basis most favourable to the applicants, I am prepared to assume the correctness of that version for the purposes of this application. Nonetheless, I am satisfied from what is already known about the circumstances surrounding Myers' communications with Patching, that the negligence claim as it has been framed would in any event be unarguable irrespective of any further information relevant to it that might conceivably be forthcoming if an order for information discovery were to be made. Accordingly, I am satisfied for the purposes of O 15A r 3 that no such proceeding for negligence could properly be brought in this Court and, for the purposes of O 15A r 6, there is no reasonable cause to believe that Scott Rush may have a right to obtain relief on the basis proposed. 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. 101 It is, in my view, unnecessary in this matter to express a concluded view on whether, as in England, a special though not unqualified, immunity rule applies to police activities "in the investigation and suppression of crime": Costello's case at 563; or whether the duty of care question is to be answered by applying to police those principles now generally applied to public authorities in the discharge of their statutory and, if relevant, common law functions: see Graham Barclay Oysters Pty Ltd v Ryan . I am of this view because both binding and persuasive authority lead inevitably to the conclusion that this application must fail. However, I would respectfully suggest that more recent English authority demonstrating "reluctance to endorse the full breadth of what Hill v Chief Constable of West Yorkshire ... has been thought to lay down" on the immunity of police: cf Brooks v Commissioner of Police , at [3], [6] and [28]; and the difficulty in providing criteria to mark out exceptions to that immunity: see e.g. Costello ; Cowan v The Chief Constable for Avon &amp; Somerset Constabulary [2001] EWCA Civ 1699 ; tell in favour of avoiding any special rule applicable to police, while still acknowledging that the police function can have distinctive characteristics and purposes which in many settings may exclude the concurrent operation of a duty of care at common law: cf Doe , 72 DLR 4 th at 584-586.