From: Robert H Stevens <>
To: Neil Foster <>
Date: 22/04/2009 06:47:07 UTC
Subject: Re: Duty on police to prevent suicide- HCA

I would have thought that the clear implication is that the 'police

immunity' cases are all wrongly reasoned. There is no 'immunity' in issue

when the police fail to protect me from a dangerous criminal. They owe me

personally no such duty, anymore than anyone else does, unless the statute

under which they act says the contrary.


> Dear Colleagues;

> The High Court of Australia has, not unexpectedly, in today's decision in

> Stuart v Kirkland-Veenstra [2009] HCA 15 (22 April

> 2009) a

> previous decision of the Victorian Court of Appeal, and ruled that police

> officers did not owe a duty of care to take into custody a man who later

> committed suicide. In essence the decision turned on the fact that the

> statutory provision empowering the police to take action required them to

> be of the opinion that he was mentally ill or about to commit suicide (the

> court emphasises that these are not the same question) but the officers

> concerned had not come to either view.

> There is a single judgement by French CJ, one joint judgment from Gummow,

> Hayne & Heydon JJ which stresses the need to respect "personal autonomy"

> (cf [88]), and a joint judgement from Crennan & Kiefel JJ. As well as the

> duty of care issues (and interestingly the court did not, as some of us

> thought they might, address the general "police immunity" cases), there is

> a fascinating set of comments on the possibility of a breach of statutory

> duty action. Crennan & Kiefel JJ in particular seem to suggest that, if

> the statutory preconditions had been satisfied, they might have been

> prepared to see this as a possible BSD action, despite the provision being

> expressed as a "power" not a "duty". More on this, perhaps, when I've had

> a chance to read it in more detail.

> Regards

> Neil Foster




> Neil Foster


> Senior Lecturer, LLB Program Convenor

> Newcastle Law School

> Faculty of Business & Law

> MC158, McMullin Building

> University of Newcastle

> Callaghan NSW 2308


> ph 02 4921 7430

> fax 02 4921 6931



Robert Stevens

Professor of Commercial Law

University College London