Rickard v State of NSW

Rickard v State of NSW - [2010] NSWSC 151 - NSWSC 2009 case summary — Zoe

[5]

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 Australia v Griffiths & Anor [2007] NSWCA 370 Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 Brooks v Commissioner of Police for the Metropolis; [2005] UKHL 24; [2005] 2 ALL ER 489 Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258; 259 ALR 616 Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370; (2007) 70 NSWLR 268 Costello v Chief Constable of Northumbria [1999] ICR 752; [1999] All ER 550 Cran v State of New South Wales [2004] NSWCA 92; 62 NSWLR 95 Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 Donoghue v Stevenson [1932] All ER Rep 1; [1932] AC 562 D'Orta Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) FCA 202; 81 ALR 397 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 Graham Barclay Oysters v Ryan [2002] HCA 54; (2002) 211 CLR 540 Hill v The Chief Constable of West Yorkshire [1989] 1 AC 53 Howard v Jarvis [1958] HCA 19; 98 CLR 177 Hunter Area Health Service v Presland [2005] NSWCA 33; 63 NSWLR 22 CASES CITED : Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672 Knightley v Johns [1982] 1 WLR 349 Makawe Pty Limited v Randwick City Council [2009] NSWCA 412 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 Perre v Apand Pty Limited [1999] HCA 36; 1998 CLR 180 Reynolds v Katoomba RSL All Services Club Ltd [2001] NSWCA 234; 53 NSWLR 43 Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242 Rush v Commissioner of Police Officers [2006] FCA 12; 150 FCR 165 Sanders v Snell (No 2) [2003] FCAFC 150; 130 FCR 149 State of New South Wales v Godfrey & Godfrey [2004] NSWCA 113 State of New South Wales v Heins [2005] NSWCA 258 State of New South Wales v Klein [2006] NSWCA 295; (2006) Aust Torts Reports 81-862 State of New South Wales v Paige [2002] NSWCA 235; (2004) 60 NSWLR 371 State of New South Wales v Spearpoint [2009] NSWCA 233 Stuart v Kirkland-Veenstra [2009] HCA 15 Sullivan v Moody [2001] HCA 59; 207 CLR 562 Tame v New South Wales [2002] HCA 35; 211 CLR 317 The State of New South Wales v Tyszyk [2008] NSWCA 107 Wilson and Others v State of New South Wales [2001] NSWSC 869; (2001) 53 NSWLR 407 Zalewski v Turcarolo [1995] 2 VR 562

[102]

51 The House of Lords held that as a matter of public policy the police were immune from actions of negligence in respect of the activities in their investigation and suppression of crime. The plaintiff's statement of claim was struck out on the basis that it revealed no cause of action. Lord Keith of Kinkel said (at 63): (I)n my opinion there is another reason why an action for damages in negligence should not lie against the police in circumstances such as those of the present case , and that is public policy. …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 be not 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. (Emphasis added).

[134]

82 The plaintiff alleged that the performance of the officer's duties was coloured or tainted by his own desire to obtain a commercial benefit and that for this reason he failed to discharge his general police obligations. The plaintiff's counsel went so far as to suggest that Constable Darlington did not charge the perpetrator of the crime committed against her or encourage the plaintiff to take out an apprehended violence order as to do so would risk exposure of his purchase of the plaintiff's car (9.09.09 at T8). Such allegations are more directed to the intentional tort of misfeasance in public office (see Sanders v Snell (No 2) [2003] FCAFC 150; 130 FCR 149 at [86] ff for discussion) and not negligence. The plaintiff has brought an action in negligence. However, as the defendant rightly points out, the actions complained of do not constitute acts in negligence. As Lord Atkinson stated in Donoghue v Stevenson [1932] All ER Rep 1; [1932] AC 562 at 580 "you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour". However, the case presented by the plaintiff is not a case that imports notions of reasonableness, foreseeability and other commonly expressed tenants of negligence. The formulation of the plaintiff's case entails an allegation of the officer acting to the detriment of the plaintiff because of some desire of personal gain. 83 Counsel for the plaintiff sought to draw an analogy with cases in which solicitors have been found to have acted with a conflict of interest and in so doing have been held to have breached a duty of care. He gave an example of a solicitor acting for both parties in a loan transaction giving preference to the interests of one party over the other. This is not an apt analogy at all. A solicitor in such circumstances would clearly have a duty in respect of both clients and would be acting in the course of the solicitor/client retainer. This does not at all aid an argument that Senior Constable Darlington was discharging his duties as a police officer when agreeing to purchase the plaintiff's car.

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Judgment (166 paragraphs)

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Cases Cited (37)

Cited By (6)