Torts - Negligence - Essentials of action for negligence - Duty of care - Special relationships and duties - Police officers - Complainant reporting threat of murder and suicide - Whether duty to prevent her murder by obtaining and executing arrest warrant - Whether duty to prevent suicide of murderer by obtaining and executing arrest warrant before murder.

Hill v Chief Constable of West Yorkshire [1989] AC 53, distinguished.

Zalewski v Turcarolo [1995] VicRp 76; [1995] 2 VR 562, followed.

Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1, referred to.

Applicant/Defendant: Director of Public Prosecutions

Judgment Number: [2005] TASSC 11

as administrators of the estate of DARREN WILLIAM BATCHELOR

deceased, WARREN BATCHELOR by his litigation guardian

1 This is an application by the defendant for an order pursuant to the Supreme Court Rules 2000, r259, that the statement of claim be struck out, the action dismissed, and judgment entered for the defendant. The defendant contends that, as a matter of law, each of the plaintiffs' claims is hopeless and cannot possibly succeed.

2 The plaintiffs' contentions, as pleaded in an amended statement of claim, can be summarised as follows. Each of the claims in this action is made by, or for the benefit of, a boy named Warren Batchelor ("Warren"). His parents were Sonya Mercer ("the mother") and Darren William Batchelor ("the father"). On 7 April 2001, the father shot the mother dead, and then shot himself dead. The mother was assaulted by the father the previous night. On the day of her death, she went to Launceston Police Headquarters and sought the assistance of the police. She told the police that the father intended to shoot her and himself; that he had left a note to that effect; that she had been seriously assaulted by him on 6 April 2001; that he owned firearms; that she had been living with him and their son Warren at a property at Longford; and that she required the protection of a restraint order. While she was still at Launceston Police Headquarters, the father arrived. Police officers told him that they and the mother were going to the Longford property to seize his firearms and to get some personal belongings for the mother. They went to the Longford property with the mother. They noticed that one of the father's firearms was missing. After that, they were outside the residence while the mother was inside. The father approached the residence from the outside, shot the mother through the kitchen window, and then shot himself.

3 It is common ground that, on the day in question, the police took steps to have the mother obtain a restraint order against the father under the Justices Act 1959.

4 It is contended that the deaths of both the mother and the father were the result of negligence on the part of police officers in (a) failing to arrest the father in order to facilitate the making of a restraint order in accordance with a pro-charge pro-arrest police policy then in force; (b) telling the father of their plans to take the mother to Longford to collect her belongings, and to seize his firearms, as a result of which he was able to do what he had apparently threatened; and (c) failing to evacuate the Longford property after discovering that one of the father's guns was missing.

5 Three causes of action are pleaded in the statement of claim: (i) a claim by Warren pursuant to the Fatal Accidents Act 1934, s8, for damages in respect of the death of his mother; (ii) a claim by the father's parents as the administrators of his estate pursuant to the Fatal Accidents Act, s5, for damages for the benefit of Warren in respect of the death of his father; and (iii) a claim by Warren in respect of psychological harm said to have been suffered by him as a result of being advised of the deaths of his parents. The third claim does not involve any allegation of negligence in the manner in which Warren was told of his parents' deaths, but is based on his reaction to the information he received. As I have said, the defendant contends that none of the three claims can possibly succeed.

6 The principles to be exercised by a court dealing with an application of this kind are as set out in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 in the following passage in the judgment of Barwick CJ at 128 - 130:

"... the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'.

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or 'so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument'; 'so to speak apparent at a glance'.

As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J (as he then was) sums up a number of authorities in Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 where he says (1949) 78 CLR, at p 91 : 'A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.' Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (1949) 78 CLR, at p 84, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."

7 The plaintiffs contend that the Crown is liable for damages by virtue of the Police Regulation Act 1898, s52, which at the material time provided as follows:

"52 - (1) A police officer shall not incur any civil liability for an act or omission done or made in good faith in the exercise or discharge, or purported exercise or discharge, of any powers, functions, duties, or responsibilities conferred or imposed upon him by any provision of this or any other Act (whenever enacted) or by law.

(2) A liability that would, but for subsection (1), lie against a police officer shall lie against the Crown."

8 But for that section, there may have been no arguable basis for liability on the part of the Crown since a police officer is an independent peace officer for whose torts the Crown is not ordinarily liable: Enever v R [1906] HCA 3; (1906) 3 CLR 969. There is no suggestion in this case that any police officer acted, or made any omission, otherwise than in good faith in any respect.

9 The defendant contends that, for the purpose of the law of torts, the Crown and the police did not at any time owe anyone a relevant duty of care. That is to say, it is contended that there was no duty to take care to prevent the father from killing the mother, and no duty to take care to prevent the father from killing himself, that could give rise to a cause of action in tort.

The claim in respect of the death of the mother

10 This claim is based on the Fatal Accidents Act, ss4, 5 and 8(1), which provide as follows:

"4 - Whenever the death of a person is caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a crime.

5 - Every such action shall be for the benefit of the members of the family of the persons whose death shall have been so caused, and, subject to this Act, shall be brought by and in the name of the executor or administrator of the person deceased; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the parties aforesaid in such shares as the jury by their verdicts shall find and direct.

8 - (1) If in any case there is no executor or administrator of the person deceased ... such action may be brought by and in the name or names of all or any of the persons, if more than one, for whose benefit such action would have been if it had been brought by and in the name of such executor or administrator."

11 Because of the wording of s4, the claim in respect of the death of the mother can succeed only if her death was the result of a breach of a duty of care owed to her by one or more police officers, requiring them to take reasonable care to protect her from the father.

12 As a general rule, the law does not impose on a person a duty to control another person's actions in order to prevent harm to third persons. Thus, in Smith v Leurs [1945] HCA 27; (1945) 70 CLR 256 at 262, Dixon J said the following:

"It is, however, exceptional to find in the law a duty to control another's actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third. There are, however, special relations which are the source of a duty of this nature. It appears now to be recognized that it is incumbent upon a parent who maintains control over a young child to take reasonable care so to exercise that control as to avoid conduct on his part exposing the person or property of others to unreasonable danger."

13 A recent example of a situation in which the general rule was held to apply is to be found in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254. In that case the High Court held that the owner of a suburban shopping centre did not have a duty to take reasonable care to prevent physical injury to the employee of a tenant resulting from the criminal behaviour of third parties in the shopping centre car park. However the existence of exceptions to the general rule was acknowledged in every judgment in that case. Gleeson CJ said the following at 267:

"The unpredictability of criminal behaviour is one of the reasons why, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable.

There may be circumstances in which, not only is there a foreseeable risk of harm from criminal conduct by a third party, but, in addition, the criminal conduct is attended by such a high degree of foreseeability, and predictability, that it is possible to argue that the case would be taken out of the operation of the general principle and the law may impose a duty to take reasonable steps to prevent it. The possibility that knowledge of previous, preventable, criminal conduct, or of threats of such conduct, could arguably give rise to an exceptional duty, appears to have been suggested in Smith v Littlewoods Organisation Ltd [1987] UKHL 3; [1987] AC 241 at 261 per Lord Mackay of Clashfern."

14 In a short judgment at 270, Gaudron J agreed with the reasons of Gleeson CJ and the remarks of Hayne J, and added the following:

"There are situations in which there is a duty of care to warn or take other positive steps to protect another against harm from third parties. Usually, a duty of care of that kind arises because of special vulnerability, on the one hand, and on the other, special knowledge, the assumption of a responsibility or a combination of both. Those situations aside, however, the law is, and in my view should be, slow to impose a duty of care on a person with respect to the actions of third parties over whom he or she has no control."

"This Court has not previously considered the specific question of whether, at common law, a duty of care may be established and extend, in its scope, to the avoidance of foreseeable risks of injury arising out of the criminal acts of a third party. However, in terms of legal principle, I can see no reason why, depending on the circumstances, such a duty could not arise. A conclusion that it may do so is reinforced by addressing the usual considerations when faced with an attempt to apply established legal principles to a novel fact situation. A court asked to do so: 1. will consider the principles themselves as laid down in existing legal authority; 2. where there is no binding legal authority, will have regard to analogous developments of legal principle, including cases decided in the courts of other common law countries; and 3. in reaching its conclusion, will take into account any relevant considerations of legal principle and policy. In the present context this will be done by responding to the question whether it is 'fair, just and reasonable that the law should impose a duty of a given scope upon the alleged wrongdoer for the benefit' Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 at 275 [259]; cf Caparo Industries Plc v Dickman [1990] UKHL 2; [1990] 2 AC 605 at 617-618 of the person making the claim. It will not be done by asking whether the case, or the relationship between the parties, is somehow 'special' (whatever that word may mean)."

16 At 280 - 281, after referring to some cases concerning employers' failures to protect employees from the criminal acts of third parties, Kirby J said the following:

"... employer and employee decisions may be distinguishable from the present case. However, they do serve to rebut any universal principle that, in Australian law, parties sued in negligence can escape liability simply because the damage complained of was caused by the deliberate criminal act of a third party. No principle of public policy, no general doctrine of denying relief eg on the basis of the maxim ex turpi causa non oritur actio (an action arises not from a bad cause): Smith v Jenkins [1970] HCA 2; (1970) 119 CLR 397 at 409-414; Jackson v Harrison [1978] HCA 17; (1978) 138 CLR 438; Gala v Preston [1991] HCA 18; (1991) 172 CLR 243 and no concept of causal interruption eg the exception of novus actus interveniens (new intervening act): Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 has so far succeeded in forbidding recovery in such cases where the general principles of negligence law would otherwise uphold recovery."

"In those cases where a duty to control the conduct of a third party has been held to exist, the party who owed the duty has had power to assert control over that third party. A gaoler may owe a prisoner a duty to take reasonable care to prevent assault by fellow prisoners. If that is so, it is because the gaoler can assert authority over those other prisoners cf Howard v Jarvis [1958] HCA 19; (1958) 98 CLR 177; Hall v Whatmore [1961] VicRp 35; [1961] VR 225. Similarly, a parent may be liable to another for the misconduct of a child because the parent is expected to be able to control the child Smith v Leurs [1945] HCA 27; (1945) 70 CLR 256 at 262 per Dixon J.

18 At 300 Callinan J referred very briefly, with apparent approval, to the views expressed by Dixon J in Smith v Leurs (supra).

19 Consistently with the comments I have quoted, there are some reported cases in which it has been held to be at least arguable that police officers and public authorities owe a duty of care requiring the provision of protection in particular circumstances. In Doe v Metropolitan Toronto Commissioners of Police (1990) 72 DLR (4th) 580, the plaintiff had been assaulted in her apartment by a serial rapist who had assaulted other women in apartments in the vicinity. She alleged that the police had deliberately not issued warnings to likely victims, including herself. The defendants moved to strike out her statement of claim. At first instance, their motion was dismissed. On appeal, the Ontario Divisional Court held unanimously that the facts pleaded raised triable issues of negligence in relation to breaches of a duty to warn and a duty to protect. In Swan v South Australia [1994] SASC 5079; (1994) 62 SASR 532, an infant plaintiff alleged that he had suffered injuries as the result of numerous sexual assaults by a parolee, alleged that a parole board was negligent in failing to supervise the parolee both as to his parole conditions and his compliance with them, and alleged that parole officers were negligent in failing to supervise the parolee and to investigate properly allegations as to his breaches of parole conditions. At first instance, his action was dismissed on the ground that the statement of claim disclosed no cause of action. On appeal, Mohr, Bollen and Duggan JJ held that a duty of care arose on the facts as pleaded, and that the action should not have been dismissed.

20 However there is English authority to the effect that, even when the prerequisites for the imposition of a duty of care requiring one person to protect a second person from the criminal activities of a third person are satisfied, police officers are immune from any such duty for public policy reasons. The leading case in relation to the existence of such an immunity is Hill v Chief Constable of West Yorkshire [1989] AC 53, a decision of the House of Lords relating to the "Yorkshire Ripper". That case concerned an action brought by a plaintiff whose 20 year old daughter was the last of 13 women murdered by that man. The plaintiff contended that the police had negligently investigated his crimes, failed to apprehend him, and thus failed to prevent the murder of her daughter. Her statement of claim was struck out on the basis that it disclosed no cause of action. She appealed unsuccessfully to the Court of Appeal and to the House of Lords. It was held that the circumstances of the case were not capable of establishing a duty of care that was owed to the deceased. Lord Keith of Kinkel, with whose opinion three of the Lords agreed, went on to say the following, at 63:

"The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further it would be reasonable to expect that if potential liability were to be imposed it would not be uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes. While some such actions might involve allegations of a simple and straightforward type of failure - for example that a police officer negligently tripped and fell while pursuing a burglar - others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do. The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and retraversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted."

21 That case was followed by the English Court of Appeal in Osman v Ferguson [1992] EWCA Civ 8; [1993] 4 All ER 344. That case concerned a schoolteacher with an unhealthy attachment to a schoolboy. He had repeatedly harassed the boy and his family, had been dismissed from his employment, had told a police officer that there was a danger that he would do something criminally insane, and had subsequently rammed a vehicle in which the boy was a passenger. He was charged with an offence in relation to that act, but the information was not served. He followed the boy and his family to their flat, shot and injured the boy, and shot his father dead. The mother and the boy sued the Commissioner of Police for negligence. The Commissioner applied to strike out the statement of claim as disclosing no reasonable cause of action, failed in that application, appealed to the Court of Appeal, and succeeded there. McCowan LJ, with whom Bedlam and Simon Brown LJJ agreed, concluded that the plaintiffs had an arguable case that there existed between the family and the investigating officers a very close degree of proximity amounting to a special relationship. However the appeal succeeded on the basis that the case fell within the scope of the public policy immunity described in Hill v Chief Constable of West Yorkshire. The English Court of Appeal reached a similar conclusion in Alexandrou v Oxford [1993] 4 All ER 328 which concerned the failure of police officers to respond promptly to a burglar alarm, and a claim in respect of losses that allegedly would not have been incurred if they had promptly responded.

22 It remains to be seen whether Australian appellate courts will follow this line of authority. The relevant cases were referred to but distinguished in Swan v State of South Australia (supra), which of course concerned a parole board and parole officers, rather than police officers. They were again referred to and distinguished in Zalewski v Turcarolo [1995] VicRp 76; [1995] 2 VR 562, a decision in the Appeal Division of the Supreme Court of Victoria. That case was concerned not with the investigation of crime, but with a confrontation by police officers with a man with a history of psychiatric illness and violent behaviour who was holding a loaded shotgun.

23 The doctrine of police immunity has not been adopted in Canada. Hill v Chief Constable of West Yorkshire was referred to in Doe v Metropolitan Toronto Commissioners of Police (supra) at 585, but only as authority for the proposition that the foreseeability of risk is not alone sufficient for a private law duty of care to arise. Hill has also been considered in some New Zealand decisions. In Garrett v Attorney-General [1993] 3 NZLR 600, Anderson J distinguished Hill, holding that the police were not immune from a claim for misfeasance in public office. In Whithair v Attorney-General [1996] 2 NZLR 45 at 52, Eichelbaum CJ said that he was unable to agree that the courts should adopt the course followed in Hill and rule out a remedy on policy grounds if a person alleging that he had wrongly not been considered for police bail was able to bring his case within recognised parameters of a legal cause of action. In Zalewski v Turcarolo (supra) at 565, Brooking J referred to the decision of the New York Court of Appeals in Riss v City of New York 22 NY 2d 579 (1968), in which it was held that no cause of action was available to a woman who had repeatedly sought police protection from a man who made repreated threats, and who was blinded by a thug hired by him. That conclusion was not reached on the basis of the considerations discussed by Lord Keith in Hill, but on the basis that the provision of a government service to protect the public from external hazards and to control the activities of criminal wrongdoers was more appropriate for a considered legislative - executive decision, taking into account the limited resources of the community.

24 There are authorities which suggest that, if there is an immunity for police officers as held in Hill v Chief Constable of West Yorkshire, that immunity is not available to a police officer who has acted otherwise than in accordance with his or her training and instructions. In Hill, at 59, Lord Keith referred with approval to Knightley v Johns [1981] EWCA Civ 6; [1982] 1 WLR 349 and Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242. Knightley concerned a claim against a police inspector for damages for negligence. He had attended the scene of an accident in a road tunnel. Contrary to a standing order, he had failed immediately to close the tunnel to traffic. He sent two constables on motorcycles to close it. They rode against the flow of traffic. One of them was injured, and sued for damages. The Court of Appeal held that the inspector was liable. In Rigby, police officers fired a canister of CS gas into the plaintiff's shop in order to end a siege by a dangerous intruder. They had initially arranged for fire-fighting equipment to be present, but it had been needed elsewhere, and had been taken away before the canister was fired. No alternative arrangements were made to guard against the risk of fire. The canister set the shop ablaze. Taylor J held that the Chief Constable was liable for damages for negligence.

25 Both Knightley and Rigby were referred to by Hansen J, with whom Brooking and J D Phillips JJ agreed, in Zalewski v Turcarolo (supra). They took the view that, if police officers are sometimes entitled to an immunity in accordance with Hill, the fact that those two cases were cited with approval in the House of Lords in that case indicated that a police officer is not entitled to such an immunity if he or she acts otherwise than in accordance with his or her training and instructions.

26 There is no evidence before me as to the truth or otherwise of the allegations pleaded by the plaintiffs. I must determine this application on the basis that they may be able to prove all that they allege. At the relevant time, the Justices Act, s106C(1), empowered a justice of the peace to issue a warrant for the apprehension of a person against whom a restraint order was sought, subject to certain procedural requirements. It has been pleaded that the police had a "pro-charge pro-arrest" policy at the relevant time. It follows that the plaintiffs may be able to prove that the alleged policy was then in force; that the application of that policy would have required a police officer to seek a warrant for the apprehension of the father; that a justice would have issued such a warrant; that the police would have been able to arrest the father; that the killing of the mother would thereby have been prevented; and that this chain of events did not occur because one or more police officers omitted to act in accordance with his, her or their training and/or instructions. In the light of Zalewski v Turcarolo (supra), it is at least arguable that, if such findings of fact were made, there would be no basis for the application of the doctrine of immunity discussed in Hill v Chief Constable of West Yorkshire, even if that doctrine forms part of the common law of Tasmania; and that the defendant would be held liable for damages for negligence. It follows that, in relation to the claim in respect of the death of the mother, the defendant's interlocutory application must fail.

The claim in respect of the death of the father

27 This claim is based on the Fatal Accidents Act, ss4 and 5, which I have set out in full above. Because of the wording of s4, a claim in respect of the death of the father cannot succeed unless the father's death was caused by negligence which, if he had not died, would have entitled him to maintain an action and recover damages in respect of a self-inflicted gunshot injury. That would have been the case only if one or more police officers owed him a duty of care to prevent him harming himself, and only if that duty of care were breached by (a) not arresting him and/or (b) telling him of the plan to take the mother to Longford to collect her belongings and to seize his firearms, and/or (c) failing to evacuate the Longford property after discovering that one of his guns was missing.

28 If the police offers had arrested the father, I think it is at least arguable that they would then have owed him a duty to take reasonable care to prevent him from harming himself. See Kirkham v Chief Constable of the Greater Manchester Police [1989] EWCA Civ 3; [1990] 2 WLR 987. However, this was not a case where any police officer had assumed any responsibility for the father by taking him into custody. At least as a general rule, a police officer owes no duty of care to a person whose conduct is being investigated: Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317.

29 The provisions in the Justices Act concerning restraint orders exist for the purpose of protecting those who are at risk of violence being inflicted upon them by others. The power to issue an arrest warrant conferred by s106C(1) exists both for that purpose and for the purpose of ensuring the attendance before magistrates of persons against whom restraint orders are sought.

30 In Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1 at 39, McHugh J listed six questions that a court needs to consider when it is alleged in a novel case that a statutory authority owed a common law duty of care and breached it by failing to exercise a statutory power. Although this case concerns police officers, rather than a statutory authority, and although the power to issue an arrest warrant lay with a justice of the peace, whereas the police officers had powers only to apply for and execute such warrants, there is no logical reason for those points of distinction to make his Honour's comments inapplicable to the instant case. The second of his Honour's six questions was:

"2 By reason of the defendant's statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no, then there is no duty."

31 I think it is at least arguable that, by reason of police officers' statutory or assumed obligations in relation to restraint orders, they have the power to protect those alleged to be at risk of domestic violence from a risk of harm. However, I do not think it is even arguable that some sort of power to protect from self-harm persons thought to pose a risk to others can flow from the existence or assumption of obligations owed by police officers to persons apparently at risk from harm by others. It follows that the second question posed by McHugh J must be answered in the negative, and that no duty to the father existed.

32 There are no doubt occasions when police officers prevent troubled individuals from committing suicide. It may well be seen as part of the role of a constable to dissuade individuals from suicide or self-harm in appropriate cases. It certainly does not follow that, for the purpose of the law of torts, police officers have a duty of care requiring them to prevent suicides or self-inflicted harm, with the result that they can be sued for damages if they fail to take reasonable steps to prevent such outcomes. I see no reason why the power to seek and execute a s106C(1) arrest warrant in respect of a person known to be threatening suicide can result in the existence of a duty of care that would not otherwise exist.

33 The police officers in question cannot have owed the father a common law duty of care that was breached by them neither seeking nor executing a s106C(1) arrest warrant, or breached in one of the other respects as pleaded. It follows that the claim in respect of the death of the father must fail, and that the defendant's interlocutory application must succeed in relation to that claim.

34 Having regard to Warren's age, and the relationship of mother and son, I think it is at least arguable that it was reasonably foreseeable on the part of the police officers that he might suffer psychological harm as the result of the mother being killed and him being told of her death. As I have held that it is arguable that the police officers owed the mother a duty of care, requiring them to protect her from the father, I think it must follow that it is arguable that they owed Warren a duty of care, requiring them to protect him from the risk of consequent psychological injury. Ever since Tame v New South Wales (supra), it has been clear that, when such a duty exists, a plaintiff can recover damages for the consequences of receiving news of the death of a relative, without having seen the killing or its aftermath.

35 However, as I have held that the police officers had no duty of care requiring them to protect the father from himself, I think it must follow that they did not owe Warren a duty to take reasonable care to prevent him from suffering psychological harm as a result of the father killing himself.

36 I think it would be impractical to order the striking out of parts of the amended statement of claim. I think the preferable course is to strike out the whole document, and to allow Warren to re-plead his claims relating to the death of his mother. I therefore order that the amended statement of claim dated 30 September 2004 be struck out, that judgment be entered for the defendant against the first and second plaintiffs, and that the third plaintiff have leave to file and serve within 28 days an amended statement of claim confined to his claims relating to the death of his mother.