Plaintiff v Defendants

1 In this proceeding, Abir Taha, the plaintiff, claims various relief from five defendants in relation to the partial demolition of a house owned by her at 34 Kitchener Street, Broadmeadows. It is not necessary to describe all of the claims made against all of the defendants. The present application concerns the plaintiff's claims against the third defendant, the State of Victoria, and the fifth defendant, Constable Matt Walsh.

2 In her amended statement of claim, the plaintiff makes the following allegations of fact relevant to the claims against the third and fifth defendants:

(a) The plaintiff was at all relevant times the owner of the land and house at 34 Kitchener Street.

(b) On or about 20 and 21 July 2010, the second defendant wrongfully entered 34 Kitchener Street and partially demolished the house (it appears that the second defendant was in fact engaged by the first defendant to remove asbestos from 101 Kitchener Street and 34 Stanhope Street and perform some demolition work at these premises, but mistakenly attended 34 Kitchener Street to perform the work).

(c) The fifth defendant, an officer of Victoria Police, attended 34 Kitchener Street at approximately 1.15pm on 21 July 2010 after neighbours had alerted Victoria Police by telephone that youths were causing damage to the property, including breaking glass. The fifth defendant attended 34 Kitchener Street for the purpose of making inquiries and/or conducting an investigation.

(d) When he attended the property, the fifth defendant was told by the second defendant that the second defendant had been contracted to demolish the house and was in the process of doing so. The fifth defendant requested a copy of the second defendant's driver's licence, but did not otherwise make any further inquiries of the second defendant or any other person or prevent the second defendant further demolishing the house.

3 In her amended statement of claim, the plaintiff asserts that substantial damage could have been avoided if the fifth defendant had taken additional steps and discovered that the second defendant did not in fact have authority to demolish the house. The plaintiff also pleads that if the fifth defendant had taken the relevant steps and discovered that the second defendant did not have authority to demolish the house, then the fifth defendant would have prevented the second defendant from undertaking further demolition and the plaintiff would not have suffered additional loss and damage.

4 The plaintiff's claim against the fifth defendant is pleaded in negligence. The duty owed by the fifth defendant is pleaded in the following terms:

"At all material times the fifth defendant, having been alerted of (sic) potential unlawful and/or unauthorised damage to the property, owed the plaintiff being the owner of the property, a duty of care to the plaintiff to make reasonable inquiries and/or conduct a reasonable investigation such as to prevent (and be able to prevent) unlawful and/or unauthorised damage to the property".[1]

5 Having pleaded the duty in these terms, the plaintiff then pleads:

"In breach of the duty alleged hereof (sic) the fifth defendant failed, having been alerted of (sic) potential unlawful and/or unauthorised damage to the property to make reasonable inquiries and/or conduct a reasonable investigation such as to prevent (and be able to prevent) unlawful and/or unauthorised damage to the property."[2]

6 The negligence alleged by the plaintiff against the fifth defendant is particularised as follows:

(a) failing to request copies of any permits or other documentation in support of the second defendant's purported right to demolish the premises;

(b) failing to make any inquiries of the plaintiff, her estate agent, the first defendant and/or the local council of the second defendant's purported right to demolish the premises;

(c) failing to make any inquiries of the second defendant, first defendant, plaintiff, her estate agent and/or the local council as to why the premises were being demolished in circumstances in which the premises were connected to water, gas and electricity and a prominent "for lease" sign was displayed at the front of the property;

(d) failing to make any inquiries of the second defendant, first defendant, plaintiff, her estate agent and/or the local council as to why it was necessary for the second defendant to gain forced entry into the premises in circumstances in which the second defendant claimed he was authorised to demolish the premises;

(e) failing to make any inquiries of the first defendant as to the second defendant's authority to demolish the premises; and

(f) failing to arrest the second defendant or otherwise prevent the second defendant from further demolishing the premises.

7 The claim against the third defendant is pleaded in the following terms:

"Further, the negligence of the fifth defendant was done or omitted to be done in good faith in the course of his duty as a member of the police force such that the third defendant is liable to the plaintiff for his negligence by operation of section 123(1) (sic, section 123(2)) of the Police Regulation Act 1958".[3]

8 Section 123 of the Police Regulation Act 1958 relevantly provides:

"(1) A member of the force or a police recruit is not personally liable for anything necessarily or reasonably done or omitted to be done in good faith in the course of his or her duty as a member of the force or police recruit.

(2) Any liability resulting from an act or omission that, but for subsection (1), would attach to a member of the force or police recruit, attaches instead to the State."

9 The third and fifth defendants seek summary judgment in their favour on the basis that the proceeding fails to disclose a cause of action against them;[4] alternatively, on the basis that the claims pleaded against them have no real prospect of success.[5] The fifth defendant contends that he did not owe the plaintiff the duty of care alleged against him, and therefore there should be judgment for the fifth defendant against the plaintiff. The third defendant supports this contention and submits that because the fifth defendant did not owe the plaintiff a relevant duty of care, there are no acts or omissions in respect of which a transfer of liability from the fifth defendant to the third defendant could occur. That is, the fifth defendant not being liable to the plaintiff, there can be no transfer of a liability from the fifth defendant to the third defendant pursuant to s 123 of the Police Regulation Act.

10 In the absence of exceptional circumstances, police officers do not owe a duty of care to an individual to investigate a complaint of actual or threatened criminal conduct.[6] A duty of care to investigate is not owed by police officers primarily because the imposition of such a duty would be inconsistent with the performance of a police officer's public duty to enforce the criminal law, which requires them to exercise discretion in prioritising the use of investigative resources in the public interest.[7]

11 Whilst the authorities in this area allow for the possibility of a duty of care existing in relation to the investigation of actual or threatened criminal conduct in "exceptional circumstances", neither counsel were able to refer me to any cases where either exceptional circumstances have been held to exist or such a duty has been found. One might have thought that the cases of Hill v Chief Constable of West Yorkshire[8] and Brooks v Commissioner of Police of the Metropolis[9] may have involved exceptional circumstances. In Hill, the claim was that the police conducted their investigations negligently, which resulted in their failure to apprehend a serial killer before he murdered the daughter of the plaintiff. No relevant duty was held to be owed in that case. Brooks was a case where the House of Lords had to deal with a claim brought against the police by the surviving victim of a racist attack. A committee of inquiry had "exposed a litany of derelictions of duty and failures in the police investigations". Notwithstanding this matter, the House of Lords unanimously declared that no duty of care was owed to the victim. The circumstances of the present case as pleaded by the plaintiff, when compared to the circumstances in Hill and Brooks and the other authorities in this area, are not in any relevant sense exceptional. In any event, the plaintiff in the present case has not pleaded (and was not able to suggest) any circumstances that might be exceptional giving rise to the fifth defendant owing the duty of care pleaded against him.

12 During the course of his submissions, counsel for the plaintiff referred to a statement by Redlich JA in State of Victoria v Richards,[10] that "the need to demonstrate that the case is exceptional appears to arise only when the proposed duty of care would otherwise be found to be inconsistent with the general duties of the police to enforce the law". It was submitted that by this statement his Honour held that police would be found to owe a duty of care in relation to the investigation of actual criminal conduct if the duty required the relevant police officer to do something consistent with his or her duty to enforce the law; alternatively, not to fail to do something consistent with his or her duty to enforce the law. It was said that in such cases, exceptional circumstances do not have to be shown. I reject these submissions. The submissions involve taking the extracted statement out of context, misunderstanding both the judgment of Redlich JA and the authority cited in his Honour's reasons in support of the extracted statement,[11] and failing to appreciate the central distinction between State of Victoria v Richards and the authorities to which I have already referred.[12] It is to be remembered that Richards involved the direct infliction of harm by a police officer on the plaintiff in that case (the plaintiff alleging that she was negligently sprayed with capsicum spray during the course of an arrest of another person), rather than any loss being caused by a failure to make inquiries or investigate a particular matter more thoroughly.

13 Similarly, the reliance by the plaintiff upon statements in the authorities that "those who seek immunity from negligence liability for direct physical injury have to overcome a heavy burden of justification for such dispensation"[13] is of no assistance in the present case. At least, so far as the current pleadings are concerned, there is no suggestion that the fifth defendant caused direct physical injury to the plaintiff in the sense that expression is used in the relevant authorities. Further, while it may be accepted that there is a heavy burden on those who seek immunity from negligence liability (or those who seek to contend that they owe no duty of care for some specific reason), the fact that police officers do not owe a duty of care of the kind alleged by the plaintiff in this case has already been authoritatively determined against the plaintiff.

14 Absent any further submission, I would have concluded that whether one approaches the third and fifth defendants' application by reference to s 63 of the Civil Procedure Act or rule 23.01, in my view the end result would be the same. The allegation that the third defendant owed the plaintiff the duty of care alleged has no real prospect of success. No authority supports the existence of the duty pleaded. Indeed, the authorities are to the contrary. There being no duty owed by the fifth defendant of the kind pleaded by the plaintiff, the claim against the third defendant would also have had to fail.[14]

15 However, counsel for the plaintiff submitted that the third and fifth defendants' application for summary judgment is "misconceived in that it misunderstands the nature of [the plaintiff's] claim". This submission was elaborated upon as follows:

"The use of the language 'reasonable inquiries' and 'reasonable investigations' in paragraph 8A [of the amended statement of claim] can superficially make the case seem analogous to the line of authority relied upon by the State in which police officers have failed to conduct proper investigations and a person subsequently engages in conduct leading to loss and damage to a third party (who then becomes the plaintiff). What is complained about by [the plaintiff] is that the first (sic, second) defendant was actively in the process of committing criminal damage, and the police, 'having been alerted of (sic) potential unlawful and/or unauthorised damage to the property, where (sic, were) negligent on the spot in the performance of their operation (sic) duties (which included making inquiries and investigations on the spot such that they could arrest or otherwise prevent the first defendant causing further criminal damage, which he was in the process of doing). ... The six particulars alleged [in the amended statement of claim] are things that could (and should) have been done on the spot."[15] (emphasis in original)

16 In support of these submissions, the plaintiff relied upon the many authorities in which police have been held to owe a duty of care.[16] As was said by Bongiorno J[17] in Gandy v State of Victoria:[18]

"Sometimes a police officer may owe a duty of care to a citizen such as the occasion referred to by the Full Court in Zalewski v Turcarolo, where a police officer negligently injured a citizen in circumstances, described by Hansen J, as 'on the spot' operational activities. And of course a police officer may be liable to a citizen in negligence for driving a motor vehicle, or carrying out other activities in the course of his duty as a police officer which would in any event breach a duty of care which he owed to a citizen."

17 The problem for the plaintiff is that her counsel's submission that the third and fifth defendants' application is "misconceived in that it misunderstands the nature of [the plaintiff's] claim" is without merit. On its face, the plaintiff's claim is a claim in respect of a breach of a duty of care said to be owed to make reasonable inquiries and/or to conduct a reasonable investigation into actual or threatened criminal conduct. On the other hand, if there has been some misunderstanding of the nature of the plaintiff's claim, then clearly the fault lies with the plaintiff's pleading.

18 I have real doubt that the plaintiff's case against the fifth defendant can in fact be characterized as a case of a police officer causing injury or loss in circumstances meeting the description of "on the spot" operational activities. Certainly, that is not the way the plaintiff's claim is currently pleaded. However, having regard to the plaintiff's submissions, I cannot at this stage exclude the possibility that the plaintiff might be able to plead a case that does not involve the pleading of a duty which has been authoritatively held not to exist. In the circumstances, and rather than giving summary judgment in favour of the third and fifth defendants, I am of the view that the appropriate course is to strike out paragraphs 8 to 11 of the amended statement of claim.

19 Counsel for the third and fifth defendants submitted that, in the event I struck out paragraphs of the statement of claim, the plaintiff should not be given leave to re-plead. Counsel noted that the present pleading is the plaintiff's second attempt at pleading a cause of action against the third defendant. The case against the third and fifth defendants is, on any view, a difficult one. In my view, it is reasonable to give the plaintiff a further chance to plead her case against these defendants.[19] Accordingly, there will be orders striking out paragraphs eight to eleven of the plaintiff's amended statement of claim and giving the plaintiff leave to re-plead her claims against the third and fifth defendants.

20 I will hear the parties on the appropriate form of order and the issue of costs.

I certify that this and the 8 preceding pages are a true copy of the reasons for Judgment of Justice Beach of the Supreme Court of Victoria delivered on 9 February 2012.

[1] Paragraph 8A of the amended statement of claim.

[2] Paragraph 9 of the amended statement of claim.

[3] Paragraph 11 of the amended statement of claim.

[4] See rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2005.

[5] See s 63 of the Civil Procedure Act 2010.

[6] Cf Sullivan v Moody (2001) 207 CLR 562; Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317; Slaveski v State of Victoria [2010] VSC 441, [345], [347] and [2103] (Kyrou J); Hunter Area Health Service v Presland [2005] NSWCA 33; (2005) 63 NSWLR 22, 112[344] (Santow JA); Hill v Chief Constable of West Yorkshire [1989] 1 AC 53; Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24; [2005] 1 WLR 1495 and Van Colle v Chief Constable of Hertfordshire Police [2008] EWHC 919; [2009] 1 AC 225.

[7] Cf Slaveski v State of Victoria [2010] VSC 441, [2103].

[9] [2005] UKHL 24; [2005] 1 WLR 1495.

[10] (2010) 27 VR 343, 349 [21].

[11] New South Wales v Klein [2006] NSWCA 295; (2006) Aust Torts Reports 81-862.

[12] Note 6 above. See further Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215.

[13] Cf State of Victoria v Richards [2010] 27 VR 343, 348 [19] and Hunter Area Health Service v Presland [2005] NSWCA 33; (2005) 63 NSWLR 22, 113 [345].

[14] Cf Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd [2011] VSC 222, [18] (Dixon J) and Manderson M&F Consulting (a firm) v Incitec Pivot Limited [2011] VSCA 444, [32]-[33] (Redlich JA and Judd AJA).

[15] See paragraph 9 of the plaintiff's outline of submissions dated 7 February 2012.

[16] See for example Zalewski v Turcarolo [1995] VicRp 76; [1995] 2 VR 562 and State of Victoria v Richards (2010) 27 VR 343.

[18] [2006] VSC 480, [8].

[19] Notwithstanding earlier manifest deficiencies in the plaintiff's pleadings, including where the plaintiff pleaded:

"8. At all material times Victoria Police acted for and on behalf of and/or as agents of the third defendant.

9. At all material times Victoria Police for the third defendant owed the plaintiff a duty to take reasonable care to prevent damage to the property.

10. In breach of the duty alleged hereof Victoria Police for the fourth (sic, third) defendant failed to take reasonable care to prevent damage to the property."

(As to the deficiencies in these paragraphs, see Enever v The King [1906] HCA 3; (1906) 3 CLR 969 and Haque v Victorian Police [2010] VSCA 219.)