State of New South Wales v Klein

CATCHWORDS: NEGLIGENCE- Duty of care- Application to strike out claim- Whether police owe duty of care to individuals- Fatal police shooting- Damages claimed by relatives of deceased for psychiatric injury- Held there was no assumption of responsibility by police to plaintiffs/respondents- Claim struck out.

LEGISLATION CITED: Compensation to Relatives Act 1987 Suitors' Fund Act 1951

Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495 Cran v State of New South Wales (2004) 62 NSWLR 95 D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 79 ALJR 755 Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Hill v Chief Constable of West Yorkshire [1989] AC 53 CASES CITED: Knightley v Johns [1982] 1 WLR 349 Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242 State of New South Wales v Heins [2005] NSWCA 258 State of New South Wales v Napier [2002] NSWCA 402 Sullivan v Moody (2001) 207 CLR 562 Tame v New South Wales (2002) 211 CLR 317 Thompson v Vincent [2005] NSWCA 219 Zalewski v Turcarolo [1995] 2 VR 562

State of New South Wales (Appellant) Teresa Klein (1st Respondent) Karl Erwin Klein (2nd Respondent) PARTIES: Jacqueline Anne Soltys (3rd Respondent) David Anthony Klein (4th Respondent) Adrien Joseph Klein (5th Respondent) Heather Klein (6th Respondent) Christian Damian Klein (7th Respondent)

COUNSEL: J B Marshall SC and M T Hutchings (Appellant) A C Scotting (Respondents)

SOLICITORS: I V Knight, Crown Solicitor (Appellant) Hansons Lawyers (Respondents)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT DATE OF DECISION: 23 December 2005

LOWER COURT MEDIUM NEUTRAL CITATION: Teresa Klein & Ors v The State of New South Wales [2005] NSWSC 1341

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40046/06 SC 20544/01

BEAZLEY JA SANTOW JA YOUNG CJ in EQ

The police shot X dead in circumstances where he appeared to them to be a danger. X's mother and father, his siblings and a sister-in-law brought a claim alleging that the police owed them a duty of care to avoid causing them psychiatric harm. The police moved to strike out the claim as not alleging any cause of action. This was unsuccessful before a Master and a single Judge. Leave to appeal was granted.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40046/06 SC 20544/01

BEAZLEY JA SANTOW JA YOUNG CJ in EQ

1 BEAZLEY JA: I agree with the reasons of Young CJ in Eq and with his proposed orders. 2 SANTOW JA: I agree with Young CJ in Eq. 3 YOUNG CJ in EQ: This is an application for leave to appeal from a judgment of Hidden J given on 23 December 2005 which affirmed the decision of Master Harrison as her Honour then was, declining to strike out and dismiss the plaintiff's claim. The application came before the Court on 4 September as a concurrent hearing of the application for leave to appeal and the appeal itself. At the end of the oral hearing the Court gave leave to appeal so that these reasons solely deal with the appeal itself. 4 The present proceedings arise out of an incident which occurred at Berkeley on 26 May 1998. 5 Taking the facts from Hidden J's judgment [2005] NSWSC 1341 at [3] et seq and referring to Paul Klein as the deceased, the facts appear to be that the police in the area knew that the deceased had previously exhibited signs of mental illness. He was at his grandmother's home on the night in question and in a disturbed state of mind. He had a number of knives on the floor next to him, became increasingly agitated and behaved aggressively towards his mother who was also in the house. 6 The mother contacted police and asked them to attend. The police officers were told that the deceased was armed with a knife, was under the influence of drugs and was acting irrationally. They arrived about 9.10 pm but the deceased continued to be disturbed. He refused to comply with directions given by the police officers and set a fire in the house. He was in possession of two knives and was inflicting injury to himself. 7 It is not in dispute that the Fire Brigade arrived at the premises but because the deceased remained in and about the house with the knives the firemen could not gain access to the premises to extinguish the fire. 8 A little before 11 pm two police shot the deceased and he died. The events were filmed by representatives of the media: the police in attendance did not prevent them from doing so. 9 It is quite clear that it was only the first plaintiff, the deceased's mother, who was in the vicinity when the deceased was shot. The other plaintiffs either came to the scene after the shooting took place or became involved on the following day. 10 The present claim is brought by the deceased's mother and father, four of his siblings and a sister-in-law. The second plaintiff (the deceased's father) also sues as the deceased's administrator and brings an action under the Compensation to Relatives Act 1987. 11 The current edition of the statement of claim is that filed on 12 October 2004. However, it must be said that:

(1) reliance on particular to para 26, that the plaintiffs could complain of the police allowing members of the media to film the scene, has not been relied upon; and

(2) although Hidden J gave leave to amend with respect to the Compensation to Relatives Act claim, that leave has not yet been taken up. 12 The kernel of the statement of claim is para 24 as follows: "In all the circumstances set out above the police owed a duty of care to the plaintiffs to avoid negligently inflicting psychiatric harm on the plaintiffs by reason of the manner in which Paul Klein met with his death." 13 I should also set out paras 25 and 26 for completeness: "25. In the said circumstances it was foreseeable that negligence by the police might cause the plaintiffs to suffer psychiatric damage by reason of nervous shock. 26. By reason of the events pleaded above the police breached the duty of care owed to the plaintiffs."

There then followed particulars (a) to (w). 14 When there was debate about the pleadings before us, Mr Scotting, who appeared for the respondents made it clear that his case was not focused upon the manner in which the deceased died. At T18 Mr Scotting agreed that the word "negligently" ought not to be there and that the paragraph "ought to be expressed in terms of what could have been done to prevent or to minimise the risk that fatal force needed to be applied to contain the situation." 15 Mr J Marshall SC, who with Mr M Hutchings, appeared for the appellant, made acerbic comments about that method of dealing with the pleadings by the plaintiffs/respondents and asserted, correctly, that particularly in cases where there is an application to strike out pleadings, the plaintiffs' case must be precisely pleaded. However, passing over that thought, the "real case" being made by the plaintiffs appears to be as Mr Scotting answered the Court. 16 The case obviously troubled Hidden J because he reserved for some months. Whilst judgment was reserved, this Court, then consisting of Mason P, Handley JA and Pearlman AJA, in Thompson v Vincent [2005] NSWCA 219, delivered a judgment dealing, inter alia, with whether police have a duty of care to prevent a breach of the peace. Mason P gave the leading judgment with which the other two judges simply agreed. His Honour said at [152] and following that whilst it was clear that the police had a public duty to prevent a breach of the peace, there was no support for the proposition that police owed a duty of care to the appellants as to the exercise of their powers to prevent a breach of the peace. His Honour said at [153]: "Indeed, the notion of a duty of care in this situation has been decisively rejected". 17 In support of that proposition his Honour cited what I will hereafter call Hill's case (Hill v Chief Constable of West Yorkshire [1989] AC 53 at 59, 65), what I will refer to as Sullivan's case (Sullivan v Moody (2001) 207 CLR 562 at 581 [57]) and the case to which I will refer to as D'Orta (D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 79 ALJR 755, 773 [101]). However, his Honour then went on to say, and I will quote: "[154] This is not to say that police may never act in such a way as to assume a duty of care in a particular task (cf Knightley v Johns [1982] 1 WLR 349; Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242; Zalewski v Turcarolo [1995] 2 VR 562; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 576 [81]). But the present case bears no relationship to those exceptional situations. Rather, it falls well within the area in which it has been held that the public law duties of police are not consonant with a recognition of a private law duty of care in favour of a particular member of the public."

His Honour then went on to say in para [155] that the other case cited in support of the police having a duty of care where they had "control" of the situation, State of New South Wales v Napier [2002] NSWCA 402, was clearly distinguishable. 18 Mr Marshall puts, and there is considerable force in this submission, that were it not for the President's mention of the Zalewski case, Hidden J would have had no doubt about striking out the statement of claim on the ground that there was no duty of care. 19 The way I read his Honour's judgment is that he accepted that generally speaking police, whilst they have a public duty, do not have a duty of care to individuals. However, he upheld the submission of the present respondents that there may be situations where such a duty of care should be found and that it depends on the way the facts fall out when they are fully explored at the trial. He was influenced by the fact that in Zalewski's case, to which I will return, the Victorian Appeal Division of the Supreme Court did find a duty and that Zalewski's case appeared to have been approved by the President in [154] of Thompson's case to which I have referred. 20 The facts in Zalewski's case were that the plaintiff had a history of psychiatric illness and violent behaviour. His father called the police when the plaintiff, who was sitting on the floor of his bedroom holding a shot gun refused to give up the gun. The police approached the bedroom, asked the plaintiff to come out, he refused, the police entered the bedroom, shouted at the plaintiff to drop his gun. The police then allege that the plaintiff took aim at one of them and they then shot him, injuring him. The Victorian Appeal Division held that the police were negligent in opening the bedroom door and addressing the plaintiff the way they did, thus confronting the plaintiff with a sudden and urgent situation and the verdict of the jury for the plaintiff should be upheld. 21 In 1995, because of Hill's case, courts were speaking in terms of immunity rather than whether a duty of care existed. Hansen J, with whom Brooking and JD Phillips JJ agreed, said at 578, about the submission that there was a public policy immunity for the acts of police: "A difficulty with the appellant's submission is the width of the expression of the immunity. While it is expressed to relate to 'on the spot' operational decisions it is limited to those made, inter alia, 'bona fide' and in accordance with 'instructions, training and relevant orders'. On this basis the applicability of the immunity would depend upon a careful examination of the facts in the particular case. Thus what is seen initially to be an attempt to state an immunity in abstract terms is in reality an immunity to be judged on the facts of the particular case."

He also said in the paragraph above to that which I have quoted, that: "The English authorities referred to do not doubt that police officers may be liable in negligence for acts or omissions occurring in the course of their duties." 22 It appears that the passage I have quoted from Hansen J's judgment was very persuasive in causing Hidden J to allow the matter to go for trial. 23 It would seem that Hidden J was particularly impressed by the thought from Zalewski's case that "'immunity' would depend upon a careful examination of the facts in a particular case." That may be right in situations where there is a case coming within the exceptional cases or assumption of responsibility cases, but otherwise the core principle in Hill's case is so strong that the hopelessness of the plaintiffs' case is plain no matter what the facts. A fortiori this is the case where sufficient facts are not pleaded. 24 In this Court, Mr Marshall put great stress on the judgments of this Court in Cran v State of New South Wales (2004) 62 NSWLR 95. For that case the Court consisted of Santow, Ipp and McColl JJA. Ipp JA said at 114: "The issue … is whether the police owed the appellant a duty of care. If they did, it was undoubtedly breached. Our law has not yet recognised a duty of care of the kind asserted by the appellant (that is, in the circumstances in this case). … In my view, the policy factors identified by Steyn LJ in Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 at 349 preclude the recognition of a duty of care owed by the police to persons in custody to take care in carrying out their duties."

Santow JA said, in the same case at [50]: "Recent, binding authority stands in the way of imposing a duty of care, more especially where it would tend to have an inhibiting affect upon the discharge of police investigative functions or associated prosecutorial functions, recognising the hardship this will undoubtedly occasion for those left without a remedy."

He too approved what Steyn LJ had said in Elguzouli-Daf's case . 25 Mr Marshall submitted that in the light of Cran and in the light of the High Court's decisions in Tame v New South Wales (2002) 211 CLR 317 and Sullivan's case, Zalewski's case could not be considered to be of any current authority. In my view there is a lot of strength in this submission. One would not say that Zalewski was wrongly decided on its facts, but it would seem to me that in the light of subsequent decisions of high authority both in this country and in England, it is of very limited precedent value in this 21st century. 26 I do not see much point in citing case after case. I might, however, refer to two decisions of the High Court of Australia and one of the House of Lords. 27 In Sullivan's case, the question was whether there was a duty of care owed by public officials being social workers employed by the Department of Community Welfare to a father of children who had been falsely accused of sexually interfering with their children. The High Court rejected the claim on the basis that it would be inconsistent with the proper and effective discharge of the responsibility of those officers for them to be subject to a legal duty to take care to protect the persons who were suspected of being the sources of harm. The Court mentioned Hill's case with approval at [57], p 581. 28 In Tame v New South Wales (2002) 211 CLR 317, a motorist sued the State because of a mistake by police which had recorded that her blood alcohol level which in fact was nil, was 0.14 which was the blood reading of the other driver involved in the relevant accident. He claimed damages for psychiatric injury. All seven judges found no duty of care. Although the judges expressed themselves in different words, most focused on the inconsistency between the asserted duty of care and the police officer's duty under the relevant statute. 29 The House of Lords looked at a similar question in Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495. That case arose out of an altercation between black men and white men in which one of the black men was killed. The claimant was a black man and he said that he was dealt with by the police as if he were an offender rather than a victim and sued the Commissioner in negligence in respect of alleged duties of care owed to him by the police. Lord Steyn gave the leading judgment with which Lords Bingham, Nicholls, Rodger and Brown agreed. 30 Lord Steyn said at 1511 ([33] and following) that Hill's case was authority for the general proposition that police officers owe no duty of care to private individuals and that "if the core principle in Hill's case stands, as it must, these pleaded duties of care cannot survive." He added at [34]: "It is unnecessary in this case to try to imagine cases of outrageous negligence by the police, unprotected by specific torts, which could fall beyond the reach of the principle in Hill's case. It would be unwise to try to predict accurately what unusual cases could conceivably arise. I certainly do not say that they could not arise. But such exceptional cases on the margins of the principle in Hill's case will have to be considered and determined if and when they occur." 31 At [35] Lord Steyn drew attention to the fact that the House was hearing a strike out application and that the law regarding police liability in tort was not set in stone but considered that because of the principle in Hill's case the claim must be struck out. 32 Accordingly, it is recognised that there may be exceptions to what Lord Steyn called "the core principle in Hill's case". 33 Both in Hill's case at [59] and in Thompson's case at [154]; Knightley v Johns [1982] 1 WLR 349 and Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242, were given as examples of situations where police could be made liable to individuals in negligence. 34 Knightley's case was really one of negligence by a police authority towards its own constable because the constable was allowed to drive on the wrong side of the road to close a road tunnel where there had been an accident and was hit by a motorist coming on the motorist's correct side of the road. 35 In Rigby, the police were held negligent in firing a flammable gas into a building to overpower a psychopathic gunman without taking measures which appeared to be available to be able to deal with the fire that, as was foreseeable, resulted. 36 Mr Marshall puts that the reference by Mason P in Thompson's case to police assuming a duty of care in a particular task was to hypothetical situations where the police might assume a duty of care. 37 What his Honour said should not be read, according to Mr Marshall, as an endorsement of Zalewsi's case. Zalewski's case cannot stand, in his submissions, in the light of Cran and whilst Hill's case was distinguished in Zalewski that was prior to Hill's case gaining widespread acceptance including acceptance by McHugh J in D'Orta's case, see (2005) 79 ALJR 755, 773 [101]. 38 In a supplementary note, Mr Marshall drew attention to the decision of this Court in State of NSW v Heins [2005] NSWCA 258 at 24-25, per Handley JA. Handley JA was also on the Court when it decided Thompson's case. His Honour's acceptance of Hill's case goes some way to support the appellant's construction of what Mason P said in Thompson's case rather than the respondents' construction. 39 Apart from cases where the Police Service as employer is sued, it is clear that another situation where the police can be liable is where they have assumed a duty. As Santow JA said in Cran at [52] p 110: "I turn now to what is nonetheless a recognised exception where a duty of care is allowed on current authority. It arises where the police or prosecutorial authorities expressly or impliedly assume responsibility, to the person injured, who was entirely dependent on an undertaking so expressed or implied." 40 An example was given in argument before us where the police assured a person in a siege that they had the situation under control and it was safe for them to emerge from their hiding place and then they were shot. 41 In the present case, there is no allegation in the pleadings that the police assumed responsibility to the plaintiffs/respondents. Mr Scotting says that such an assumption should be implied from the circumstances. Whilst this is possible, the cases which have been referred to in these reasons show that it is very difficult indeed for a plaintiff to say that merely because the police were in charge of an operation they thereby impliedly assumed responsibility to any individual who was in the vicinity. As Mr Marshall put it in argument, to take this step involves equating capacity with obligation (T31). It is not alleged in the pleadings that there was any assumption of responsibility to any of the plaintiffs nor do the facts pleaded throw up any such allegation. 42 Whilst, despite Mr Marshall's strictures, I have been content to read the pleadings in a broad way, there must be some limit. In a case where the authorities show that there is only a very small gap in the rule excluding a duty of care, then a plaintiff seeking to fit within that gap must plead it. 43 The cases I have cited make it clear, to my mind, that there is no duty of care on a police officer to people such as the plaintiffs/respondents in the present situation unless they can fit themselves within either a case of express or implied assumption of responsibility or one of the possible extraordinary situations. The pleadings and the facts show neither. 44 What has troubled me is whether the matter is so clear that there should be striking out of the plaintiffs' claim. As I have noted, in Brooks' case the House of Lords had no compunction about striking out a similar claim. However, the rules and culture as to striking out of claims in England after the Wolff Report appear to me to be somewhat broader than the law in Australia as laid down by Barwick CJ sitting as a single Justice of the High Court in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. That case has been followed on many occasions since and I must take it as binding on me. It is, of course, now 42 years old and the culture of litigation has changed, but it seems to me that it is probably only the High Court which can change the culture and liberalise to at least the same extent as they exist in England the rules about striking out claims. 45 However, applying the test in the General Steel case it seems to me in the instant case that the matter is so plain that there is no duty of care that the Court must strike out the present claim. 46 Accordingly, in my view the proper orders are:

(2) Order of Hidden J set aside and in lieu thereof order that the plaintiffs' claim be dismissed with costs;

(3) Order that the respondents pay the costs of this appeal, but if qualified, to have a certificate under the Suitors' Fund Act 1951.

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