131 Turning to other factors relied on in Hill , investigation of whether the constables acted appropriately in deciding to give their attention to the fallen tree involves no real question of policy decisions about resource allocation. It raises questions of no greater complexity than many another negligence action, such as deciding whether a police officer drove negligently. There is no topic involved into which it is inappropriate for courts to intrude.
58 Campbell JA considered whether there was a duty of care owed to Mr Tyszyk considering various factors namely the class to whom the police owed public duty, that the police did not engage in any positive act in a negligent fashion and control and vulnerability. His Honour considered that Mr Tyszyk was not vulnerable because all he had to do was look up to become aware of the potential danger and that there was nothing in the relationship that the police had to Mr Tyszyk to put them into a different situation so far as owing a duty of care was concerned, to that of any other member of the public who was on the scene. His Honour concluded that the constable did not owe a duty of care to Mr Tyszyk.
59 Kirkland-Veenstra was an appeal from the County Court in relation to a claim for damages in negligence relating to a statutory power arising under section 10 of the Mental Health Act (Vic) 1986. The trial judge had dismissed the matter after eight days on the ground that it was 'impermissible' to translate a statutory power into a common law duty and therefore the duty of care alleged by the appellant did not exist in law. The appellant was Tania Kirkland-Veenstra, the first and second respondents were two police officers and the third respondent was the State of Victoria argued to be vicariously liable.
60 Mrs Kirkland-Veenstra claimed that the two police officers owed her husband, Mr Veenstra, a duty of care to take reasonable steps to protect him from foreseeable injury, being suicide, and that they also owed Mrs Kirkland-Veenstra a duty to take reasonable steps to protect her from foreseeable injury, being psychiatric injury resulting from her husband's suicide.
61 The events that gave rise to these proceedings revolve around the suicide of Mr Veenstra, the appellant's husband, in August 1999. Mr Veenstra, a certified practising accountant, had been forced to resign his job following police investigation of fraudulent business transactions. Mr Veenstra was interviewed by police on three occasions and was to be served with a hand-up brief containing criminal charges of this nature on the afternoon he was found dead. At around 5.40 am on the day Mr Veenstra died, the police officers were undertaking a routine patrol when they observed a single car parked in a remote public car park. The officers noted that the car had a tube running from the exhaust of the car through to the rear window however on approaching the car they saw that the driver's side window of the car was open, the engine was not running and the bonnet and radiator were cold. The officers introduced themselves to the driver in the car, Mr Veenstra, and after talking with him for some time, checking the vehicle and running both a licence check and personal history check, the police officers assessed that the individual showed no signs of mental illness, and was rational, co-operative and responsible and as such was not a current risk of self-harm. The officers offered to make contact with a doctor, Mr Veenstra's family or the Crisis Assessment Team. Mr Veenstra refused these offers and stated that he would see his own doctor later on.
62 The officers were both experienced and familiar with their powers under s 10 of the Mental Health Act (Vic) to apprehend a person who appeared to have a mental illness and to have attempted, or to be likely to attempt, suicide. This power was not exercised by the officers who allowed Mr Veenstra to leave the carpark, although the officers noted in the patrol log at the end of the shift, that Mr Veenstra was depressed and made reference to suicide.
63 After the incident with the officers Mr Veenstra returned home and had a brief converstaion with his wife before she left to attend a dog show. Between this time and when his body was discovered at 2.30 pm that day, Mr Kirkland-Veenstra committed suicide by asphyxiation within the grounds of his home, by securing a hose from the exhaust of his vehicle and starting the engine.
64 The Victorian Supreme Court granted an appeal from the County Court decision by a two to one majority. Warren CJ and Maxwell P clearly distinguished the matter before them from 'police cases' such as Hill, Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495 and Tame v NSW (2002) 211 CLR 317 which are 'concerned with police activities in the investigation of crime, the recording of information in the course of that investigation and the administration of the criminal justice system' (at par [29]) and confined themselves to cases where a duty arises out of failure to exercise a statutory power.
65 Warren CJ at [29] stated "the present is not a case about law enforcement. It concerns a specific power vested in a special category of persons to prevent self-harm of the gravest kind. Further, it concerns a category of persons with authority and capacity to intervene". After a review of the cases involving statutory powers Warren CJ held that a duty existed, to both the applicant and Mr Veenstra, to exercise power under s 10 of the Mental Health Act (Vic) but did not determine whether such a duty was breached. Maxwell P agreed that the case was not concerned with the officer's duty of criminal investigation ([107] and[112]) and differed only slightly in his reasoning in finding a common law duty did arise in these circumstances. Chernov JA's reading of s 10 saw the discretion to exercise the power in the context of the duty to maintain public order, a duty that is owed to the public generally and not to any individual member of it and, as such, the imposition of a common law duty on such a police officer would be contrary to the framework of the Mental Health Act (Vic). On this reasoning his Honour found no common law duty arose to either Mr Veenstra or the appellant.
66 Returning to these current proceedings, strictly speaking Kirkland-Veenstra involves the failure of the police to exercise a statutory power, which is not the case here. In these current proceedings the investigation was in relation to the report of a missing person. When the body was found, the police would have had to decide whether, in the circumstances, a criminal investigation was warranted or not. While it may be arguable that the proceedings do not involve a criminal investigation, they certainly involve a police investigation of some kind. There are four main considerations that have led the courts deciding that there is no duty of care arising in respect of a police investigation. They are firstly, that it would impose a duty to an indeterminate class of people; secondly; it would inhibit the fearless investigation of criminal activity; thirdly, there may be a conflict of duties; and finally it would involve the court intruding on matters of police policy and discretion including decisions made as to priorities in the deployment of resources.
67 The police were involved in an investigation. If a duty of care was owed, it would be owed to the missing persons and the families of those missing persons. Hence, it is arguable that the indeterminate class consideration does not apply to the circumstances of this case. It is possible that investigations conducted by the missing persons unit sometimes involve investigations of foul play and at different stages of a missing persons investigation, criminal activity may be suspected. As to a conflict of duties, sometimes the interest of the missing person may be the same as those of their families. Other times they may not. Finally, the officer-in-charge of the missing persons unit conducting investigations must make decisions involving a variety of 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. The nature, extent and time of the investigation will be conditioned by a number of factors.
68 As previously stated, this is not a case where it is pleaded that the police assumed a responsibility. Nor is it a case that falls within the exceptions referred to in Hill. Tsyzyk does not assist as the investigation in the current case was not over when the negligence occurred. I have examined the cases in the light most favourable to the plaintiffs but regrettably I have reached the conclusion that the argument, that the police owe the Cumming family a duty of care as pleaded in the statement of claim, is hopeless. The plaintiffs' amended statement of claim is dismissed as against the first defendant.
69 Costs are discretionary. Costs normally follow the event. The plaintiffs are to pay the first defendant's costs of the motion and of the proceedings as agreed or assessed.