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: