Police Duty of Care (Vic)

As a public service, the police in Australia have a broad and well-defined duty to protect the public. In Victoria, police officers must abide by a code of conduct and protect the public’s human rights under the Victorian Charter of Human Rights and Responsibilities Act 2006. What is not clear is whether, under Australian common law, an individual police officer owes a legally-enforceable duty of care to certain members of the public. For instance, there is a question over whether a police officer owes a duty of care to take reasonable steps to protect victims of domestic violence from foreseeable harm.  The recent case of Smith v State of Victoria [2018] (Smith) provides some clarity on this area of law.  

Duty of care Victoria

A duty of care is a legal obligation to take reasonable steps to prevent foreseeable harm to another person. Many professionals have an automatic duty of care to some other people: for instance, doctors have a duty of care to their patients and teachers to their students. Broadly speaking, a duty of care arises when one person exercises control over someone who relies upon them. Thus, a doctor exercises control over the treatment of a patient, and the patient lacks the necessary expertise to do anything other than rely on the advice of the doctor. Because of this reliance and control, the law requires the doctor to do everything reasonable to protect their patient from foreseeable harm and injury.

This reliance and control certainly sound like a description of the relationship between a police officer and certain members of the public. A victim of domestic violence, for instance, is often forced to rely upon the police, who exercise considerable control over the victim’s wellbeing. However, despite the evidence of reliance and control, to date, there has been no recognition of a duty of care owed by police officers to victims of domestic violence.

Police duty of care

Previously, courts in Victoria recognised an immunity from liability established by the UK case Hill v Chief Constable of West Yorkshire. Under this immunity, the police do not owe a duty of care to protect the public from crime.

However, more recently, Australian courts have found that the police can owe a duty of care to identified individuals, such as to a person in police custody. Importantly, the courts have also been clear that the police are not in a special, protected category where there will be no duty imposed for policy reasons. For instance, in State of Victoria & Ors v Richards [2010], Justice Redlich found that a duty of care should only be denied when the imposition of the duty creates inconsistent obligations.

Case study – Smith

In a case currently before the courts, Smith, the Supreme Court of Victoria explicitly opened the door to reconsideration of duty of care for police officers. In Smith, the plaintiffs are a mother and her three children, who were victims of repeated family violence over a decade. The father was issued with, and repeatedly breached, four Family Violence Intervention Orders (IVO) over that period. Victorian police were aware of the frequency and severity of the violence inflicted on the plaintiffs, and several times dropped off the perpetrator in the IVO restricted zone.  

The plaintiffs allege that the police officers were negligent in that they failed to take reasonable steps to protect the family from their abuser. The plaintiff’s submission relies upon the clear foreseeability of harm (evident in the repeated IVOs), the victim’s special vulnerability and reliance, and the assumption of responsibility by the police. The plaintiffs are suing for compensation for the resulting psychological harm pursuant to the police tort claims section of the Victoria Police Act 2013.

The defendant, the State of Victoria (as the employer of the police officers), brought a motion to dismiss the claim. They cited the immunity established following Hill v Chief Constable of West Yorkshire. The Supreme Court rejected the request for a dismissal. It found that it was arguable that the police have a duty to protect identified individuals from harm where there are the necessary elements of proximity, knowledge and control. Justice Dixon went on to note that while such a duty was unlikely to be found in relation to the investigation of a crime, the same limitation may not apply to a duty to take reasonable steps to protect victims of crime from further harm.

Regardless of the outcome of this particular case, the decision to reject the defendant’s request for dismissal establishes the potential for the courts to find that police have been negligent if they do not act reasonably to protect identified individuals from foreseeable harm.

Get in touch with our civil law team for advice about the police’s duty of care in Victoria. Please call 1300 636 846 for any legal advice or representation.

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