(xxii) Forbidding the plaintiff from making relevant enquiry of members of the Helensburgh Public School community in relation to criminal charges, the departmental enquiry the and departmental charges."
18 Thus these particulars of negligence focus upon the procedure adopted for the investigation of allegations made against the plaintiff and the disciplinary procedures which took place.
19 The defendants seek to have the proceedings dismissed or the amended statement of claim struck out on the basis that there is no cause of action in negligence available in respect of these investigations because there is no duty of care owed to the plaintiff by the defendant. The plaintiff construed his case somewhat differently by stressing that the first defendant was not a third party but is in an employee/employer relationship with the third defendant. The third defendant as an employer owed the duty of care to take reasonable steps to prevent psychological harm to him. The plaintiff submitted that an employer has a further obligation not to subject the employee to an unnecessary risk of injury of either a physical or psychological nature during any investigations or disciplinary process. The plaintiff's counsel added that the employer's duty extends to ensuring that it provide a safe system of work.
20 The parties referred to the decisions of Sullivan v Moody (2001) 183 ALR 404' (2001) 75 ALJR 1570; Wilson v State of New South Wales (2001) 53 NSWLR and The State of New South Wales v Paige [2002] NSWCA 235. There is a line of authority that establishes that there is no general duty of care owed by police officer to third parties when they are conducting investigations.
21 The starting point, I think is Hill v Chief Constable of West Yorkshire [1989] AC 53; [1988] 2 All ER 238 where it was held that there was no general duty of care owed by the police to individual members of the public to identify and apprehend a criminal. The House of Lords also held that as a matter of public policy the police were immune from actions of negligence in respect of their activities in the investigation and suppression of crime. Lord Keith of Kinkel observed, at 63:
"Potential existence of such liability may in many instances be in the general public interest, as tending towards the observance of a higher standard of care in the carrying on of various different types of activity. I do not, however, consider that this can be said of police activities. 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."
22 His Lordship continued:
"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 into question, yet elaborate investigation of the facts might be necessary to ascertain whether 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 re-traversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted."
23 In Elguzouli-Daf v Commissioner of Police of the Metropolis; McBrearty v Ministry of Defence [1995] QB 335; [1995] 1 All ER 833, the English Court of Appeal applied the reasoning articulated in Hill and decided by way of analogy that the Crown Prosecution Service did not owe a general duty of care in the conduct of its prosecution of a defendant. In any event, the Crown Prosecution Service was also immune from actions in negligence by reason of public policy. In both Hill and Elguzouli-Daf the proceedings were summarily dismissed.
24 Wilson involved a striking out application on a claim of negligence against the police. After consideration of the English authorities and their subsequent treatment in Australian courts, O'Keefe J concluded, at 422, that:
"an action for negligence under the common law does not lie in respect of the exercise by police of their investigative functions on the basis that the investigations conducted were inadequate and that no action for negligence under the common law lies in respect of the performance of police prosecutorial functions, whether in the initiation of the prosecution, in its conduct or in respect of its continuance to the time of decision by a curial body."
25 The same view was held by Levine J in Quintano & Ors v The State of New South Wales [2002] NSWSC 766.
26 The decisions referred to so far are confined to the investigators being either Police or the Crown Prosecution Service. The High Court in Sullivan expanded the category of those which fell into the role of investigators when it held that a duty of care was not owed to an alleged perpetrator of sexual assaults by doctors and social workers who were engaged to investigate whether children had been the victims of such sexual assaults. Their Honours commented, at para 53, that there were cases, such as the one before them, in which:
"to find a duty of care would so cut across other legal principles as to impair their proper application and thus lead to the conclusion that there is no duty of care of the kind asserted."
27 The High Court considered Hill, in which it was noted that the conduct of a police investigation involves a variety of decisions on matters of policy and discretion, including decisions as to priorities in the allocation of resources. The High Court commented at, para 57, that
"to subject those decisions to a common law duty of care, and to the kind of judicial scrutiny involved in an action of tort, was inappropriate."
28 The court also stated, at para 60, that:
"The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which the powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations."
29 Like Hill and Elguzouli-Daf, Wilson and Sullivan the plaintiff's pleading was summarily dismissed.
30 However, the plaintiff submitted that the principles enunciated above do not apply because he was not a third party but an employee. The New South Wales Court of Appeal in Paige took a different approach when it considered whether to impose a duty of care in these circumstances by examining the issues of vulnerability and legal coherence which included vulnerability, consistency and compatibility of the proposed duty of care with a statutory scheme. The plaintiff Mr Paige, was the principal of a Sydney high school from 1992 to 1998. He was an employee of the Department of Education who was sued as the State of New South Wales. In 1992, Mr Paige received complaints from students regarding sexual misconduct of a teacher (Mr N) at the school occurring before his appointment. He notified the New South Wales Department of Education of some complaints, but dealt with the complaints by a direct approach to the teacher and arranged to have him transferred from the school. In 1997, the Director-General of the Department issued a statement requesting a re-notification of sexual misconduct cases that had not been adequately investigated. The respondent re-notified the complaints and notified some other complaints for the first time.
31 Mr Paige's conduct was investigated under Division 6 of Part 4 of the TSA. He was subsequently charged with a breach of his duties for non-compliance with Departmental procedures in the way he had handled the complaints. The charges were determined, pursuant to Clause 15 of the Teaching Services (Education Teaching Service) Regulation 1994, on written submissions only.
32 In October 1997, the respondent submitted, and subsequently withdrew, a notice of retirement. The prescribed officer found him guilty of the charges and the Director-General purported to accept the original notice of retirement. The respondent concluded his service on 2 March 1998. The plaintiff suffered psychiatric harm and lost income. The trial judge held that the Department had breached its duty of care it owed to Mr Paige. His Honour also found that the Department had not effectively terminated the respondent's contract of employment. The trial judge awarded damages in both tort and contract. This decision was reversed on appeal.
33 Paige differs from this case before this court. Both plaintiffs were employed by the defendant. The plaintiff in the case before this Court was the alleged perpetrator of the alleged impropriety in relation to students, whereas in Paige, it was the principal's failure to follow proper procedure in relation to allegations of improper conduct of a teacher, Mr N that were the subject of the departmental charges. Both were the subject of disciplinary procedures and under the same statutory scheme, namely the provision s 83 of the TSA which defines what constitutes a breach of discipline. Section 83(f) refers to disgraceful or improper conduct. The procedure for dealing with breaches of discipline is set out in s 84. In the case before this Court the disciplinary proceedings against the plaintiff were withdrawn, whereas in Paige they were not. However, both Paige and the plaintiff in this case are employees who have pleaded a cause of action against their employer.
34 As I understand it, the plaintiff's counsel referred to a passage at paragraph 78 of the judgment where the Chief Justice stated that the body of case law with respect to a: "safe system of work" had been, so far as he was aware, exclusively concerned with the conduct of tasks for which an employee was engaged and submitted that the plaintiff was performing tasks for which he was engaged.
35 The plaintiff's counsel highlighted paragraphs 91, 99, 101, 102 and 115 of the Chief Justice's judgment in Paige (on the duty of care issue Mason P and Giles JA agreed). These paragraphs state:
"91 The determination of whether a common law duty of care exists with respect to the exercise of statutory powers is not the subject of authoritative guidance from the High Court. A number of different approaches is discernible in recent authority. (See Pyrenees Shire Council v Day (1998) 192 CLR 330; Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Brodie v Singleton Shire Council (2001) 75 ALJR 992.) The joint judgment in Sullivan v Moody does not reconcile the different approaches, save by rejecting the three stage test previously applied by Kirby J...
99 As noted above Sullivan v Moody directs attention to the compatibility of a duty of care with other duties. The particular aspect of the statutory context to which their Honours gave emphasis was the express statutory provision that the interests of a child would be the paramount consideration. In the present proceedings, the Appellant did not draw the Court's attention to any particular statutory provision relating to the provision of education which was similar to that considered in Sullivan v Moody . The submissions in this Court were restricted to the terms of the Teaching Services Act itself...
101 Within the confines of the limited range of statutory provisions upon which the Appellant relied in submissions in this case, the conflict of responsibilities is not as stark as that found in the legislation under consideration in Sullivan v Moody . Nevertheless, there is at least a level of tension, and perhaps of conflict, between the duty imposed upon the Director-General and his or her officers, a duty owed to both the public at large and to the particular school community, to ensure the efficient and effective operation of the State education system, on the one hand, and a duty to provide a "safe" disciplinary process with respect to such matters, on the other hand.
102 Although the Court's attention was not drawn to any specific duty, it can be readily accepted that a duty exists to have proper systems in place for investigating improper handling of allegations of sexual misconduct by teachers. The Director-General's statement of 18 February 1999 commenced with a reference to evidence before the Royal Commission into the NSW Police Service and said:
"Evidence given by teachers and other departmental officers revealed a totally unacceptable response to allegations of professional misconduct and criminal behaviour by several teachers in a number of schools in one of the former DSE regions."