Stuart v Kirkland-Veenstra

• Jurisdiction: Australia Federal only
• Judge: Gummow,Hayne,Heydon JJ.,Crennan,Kiefel JJ.
• Judgment Date: 22 April 2009
• Neutral Citation: [2009] HCA 15,2009-0422 HCA B
• Court: High Court
• Date: 22 April 2009
• Docket Number: M39/2008

[2009] HCA 15

HIGH COURT OF AUSTRALIA

French CJ,, Gummow,, Hayne,, Heydon,Crennan, and Kiefel JJ

M39/2008

David Stuart & Anor

Appellants

and

Tania Kirkland-Veenstra & Anor

Respondents

Representation

J Ruskin QC with R J Orr for the appellant (instructed by Victorian Government Solicitor)

J H Kennan SC with P T Vout and P Halley for the first respondent (instructed by Slater & Gordon)

M F Wheelahan SC with M D Rush for the second respondent (instructed by Deacons Lawyers)

Crimes Act 1958 (Vic), ss 457, 463B.

Mental Health Act 1986 (Vic), ss 3, 8, 10.

Wrongs Act 1958 (Vic), Pt III.

Stuart v Kirkland-Veenstra

Torts — Negligence — Duty of care — Where Mental Health Act 1986 (Vic), s 10 empowered police to apprehend person who ‘appears to be mentally ill’ if reasonable grounds for believing that person had recently attempted suicide or likely to do so — Where police came upon man who appeared to have been contemplating suicide but showed no sign of mental illness — Interaction of common law and relationship established by s 10 — Whether duty of care to prevent foreseeable harm to man at own hand — Relevance of conditions engaging exercise of statutory power — Relevance of fact that duty alleged is duty to protect person from self-harm — Relevance of general rule against duty to rescue — Relevance of vulnerability of particular class of persons — Relevance of control over source of risk to persons.

Torts — Negligence — Duty of care — Where duty alleged to arise in context of power conferred by Mental Health Act 1986, s 10 — Whether preconditions to existence of power established on facts — Whether common law duty could exist in absence of relevant power.

Torts — Breach of statutory duty — Relevance as alternative to action alleging breach of common law duty of care — Principles relevant to determining legislative intention that cause of action be available — Relevance of legislative provision for special measures to protect identifiable class of persons or property — Whether existence of discretion to exercise power inconsistent with existence of statutory duty.

Statutes — Interpretation — Whether person who has attempted suicide to be equated with person ‘mentally ill’ — Relationship between attempted suicide and mental illness — Understanding at common law of relationship between suicide and mental illness.

Words and phrases — ‘mentally ill’.

ORDER

1. Appeal allowed.

2. Set aside the orders of the Court of Appeal of the Supreme Court of Victoria made on 29 February 2008, except insofar as they deal in paragraph 4 with the costs of the appeal to that Court, and in their place order that:

• (a) each party bear its own costs of the proceedings at first instance; and

• (b) the appeal to the Court of Appeal be otherwise dismissed.

3. Appellants to pay first respondent's costs of the appeal to this Court.

Introduction

1 Between mid-morning and 2.30 pm on 22 August 1999, Ronald Hendrik Veenstra committed suicide at his home in Somerville, Victoria by sitting in his car with the engine running. A hose connected the exhaust pipe to the interior of the vehicle.

2 Earlier that day, at about 5.40 am, two police officers had observed Mr Veenstra in his vehicle in a car park on the Mornington Peninsula with a hose leading from the exhaust pipe to the interior of his vehicle. The engine was not running. Upon being questioned, Mr Veenstra persuaded the officers that although he had been about to do something stupid he had changed his mind and was going home to talk to his wife. He sounded rational and was responsive to their questions. He declined their various offers of assistance. He removed the hose from the exhaust. The officers let him proceed from the car park.

3 Mr Veenstra's widow, Mrs Kirkland-Veenstra, sued the officers and the State of Victoria before a judge and jury in the County Court alleging that the officers had breached their duty of care towards her husband and herself by failing, inter alia, to apprehend him under s 10 of the Mental Health Act 1986 (Vic) (‘the 1986 Act’). At the close of the evidence the trial judge ruled that there was no duty of care and gave judgment for the defendants. Mrs Kirkland-Veenstra appealed to the Court of Appeal which, by majority, allowed the appeal, set aside the trial judge's decision and remitted the matter for retrial 1. The officers were granted special leave to appeal to this Court.

4 This is not a case about moral or ethical obligations or what commonsense might or might not have dictated as an appropriate course of action for the officers. Those questions may be open to debate and there may be different views about what more the officers could have done in the situation in which they found themselves. Their power to apprehend Mr Veenstra was limited and conditional. The case is about whether they owed a legal duty to Mr Veenstra and his wife, breach of which could expose them and the State of Victoria to liability for damages for negligence. Mr Veenstra's death was a tragedy for him and his wife. That sad fact does not answer the legal question for decision.

5 In my opinion the trial judge was correct, there was no legal duty of care and the appeal should be allowed. The existence of a power to apprehend Mr Veenstra under s 10 of the 1986 Act was critical to the reasoning of the Court of Appeal and to the case as presented in this Court. However, it was a power

which was never enlivened. The officers said, and the trial judge held, that they did not think Mr Veenstra was mentally ill. Although findings by the trial judge that Mr Veenstra showed no signs of mental illness were under challenge in the Court of Appeal, the finding as to the officers' opinions about him was not the subject of any ground of appeal. There was no suggestion that the officers' opinions were not held in good faith. While attempted suicide may be indicative of mental illness, it is not necessarily so. Moreover, it seems clear that while Mr Veenstra had taken preliminary steps in contemplation of suicide, he had not ‘attempted’ suicide within the meaning of s 10. The officers, after talking with him, did not believe that he was going to take his own life. In the circumstances they could not have apprehended him unless they believed him to be mentally ill and likely to attempt suicide. The case for a duty of care depended upon the existence of the power to apprehend. That power did not exist in this case.

Factual history as found by the trial judge

6 At about 5.40 am on 22 August 1999, Ronald Hendrik Veenstra was observed by two members of Victoria Police to be sitting in a car at the Sunnyside Beach public car park on the Mornington Peninsula. The two officers were Acting Senior Sergeant Stuart and Detective Senior Constable Woolcock. Both were experienced officers, both held the rank of Detective Senior Constable. DSC Stuart had been a police officer for 17 years and DSC Woolcock for 12 years.

7 DSC Stuart saw Mr Veenstra in the driver's seat. He also saw a light-coloured corrugated tube running from the rear of the vehicle to its left side. He inferred that the driver was contemplating suicide. He told DSC Woolcock what he had noticed and what he thought. Both officers approached the driver's side of the vehicle. The window was fully open. The engine was not running. As they approached the car they saw Mr Veenstra put a notepad into a briefcase inside the car.

8 Mr Veenstra gave the officers his name and address. He told them that he had been in the car park for about two hours before they had arrived. The officers asked him about the tube secured to the exhaust of his car. He said he had been contemplating doing something stupid but had changed his mind. He said he was in a loveless marriage. He had been writing down some thoughts for his mother and was about to leave the scene when they arrived. He was going to go home and discuss things with his wife. He said that he was an intelligent person and that there were other options open to him. He did not use the word ‘suicide’, nor expressly state that he had been thinking about killing himself.

9 The officers felt the bonnet and radiator of the vehicle, both of which were cold. They asked Mr Veenstra about his employment and asked whether he had prior dealings with the police. They asked whether he wanted them to contact his wife or to take him to see a doctor or to drive him home. He declined their offers of assistance. He said he would see his own doctor later on. Mr Veenstra told DSC Stuart that he wanted to go home and speak to his wife about his marital problems. The two officers had observed a vacuum cleaner in the rear of the car. There were no exhaust fumes in the car. They checked, through police radio, on the vehicle, the licence and Mr Veenstra's personal history. Neither the vehicle nor the driver had been recorded as missing. It was the fact that arrangements had been made with Mr Veenstra through his solicitor for police to serve him, on the afternoon of that day, with papers relating to fraud charges arising out of his former employment as financial manager of a car dealership. There is no suggestion that either of the two officers was aware of those arrangements or of the fact that there were charges pending against Mr Veenstra.

10 Both officers were of the opinion that Mr Veenstra showed no signs of mental illness. He appeared to them to be rational, cooperative and very responsible the entire time. During their conversation he removed the hose from the exhaust and placed it in the vehicle. He did this of his own initiative and not as a result of any suggestion made to him by the officers.

11 The two officers were aware that they had a power under s 10 of the 1986 Act to apprehend a person who appeared to have a mental illness and to have attempted or to be likely to attempt...