The plaintiff appealed the magistrate’s dismissal of her claim that it showed no cause of action. The action she brought was against the State of NSW as being vicariously liable for a breach of duty of care owed by a police officer, Senior Constable Darlington.
The plaintiff made a complaint about domestic to violence to the police officer, it became apparent she would leave Australia for New Zealand and wanted to get rid of 2 cars. Ultimately, one car was purchased for $100 by the police officer.
The plaintiff claimed:
…damages in the sum of $22,678 for the lost value of the car, car rental charges and loss of income as well as an unspecified amount for emotional distress and disappointment.
Of interest is the discussion by RA Hulme J of the duty of care and policy considerations together with the approach to take in novel cases, where there is no authority:
The duty of care contended for
It is well accepted that in certain circumstances police officers owe a duty of care to prevent the occasioning of foreseeable harm: see Rush v Commissioner of Police Officers  FCA 12; 150 FCR 165 at 191  for a collection of cases in which a duty of care has been assumed or found to exist. Police officers do not enjoy blanket immunity against suits in negligence: see State of NSW v Tyszyk  NSWCA 107 at  – ; Zalewski v Turcarolo  2 VR 562; Knightley v Johns  1 WLR 349; and Rigby v Chief Constable of Northamptonshire  1 WLR 1242.
Ascertaining the existence of a duty of care
This being a case in which the plaintiff concedes there is no authority supporting the existence of the asserted duty of care it is useful to turn to the summary provided by Allsop P set in Caltex Refineries (Qld) Pty Limited v Stavar  NSWCA 258; 259 ALR 616 of the approach to be taken in determining whether a duty of care exists. The President stated: This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the “salient features” or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.
 These salient features include:
(a) the foreseeability of harm;
(b) the nature of the harm alleged;
(c) the degree and nature of control able to be exercised by the defendant to avoid harm;
(d) the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;
(e) the degree of reliance by the plaintiff upon the defendant;
(f) any assumption of responsibility by the defendant;
(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;
(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;
(i) the nature of the activity undertaken by the defendant;
(j) the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant;
(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;
(l) any potential indeterminacy of liability;
(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;
(n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests;
(o) the existence of conflicting duties arising from other principles of law or statute;
(p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and
(q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.
 There is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features. Nor should the list be seen as exhaustive. Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content.
Conflict, conformance, coherence and assumption of responsibility
Whether there are conflicting duties arising from other principles of law or statute, which involves a consideration of the nature of the activity undertaken by the defendant, and questions of conformance and coherence in the structure and fabric of the common law have some connection in the analysis. Consideration of item (p) in the President’s inventory is incidental. It is convenient also to deal with the question of assumption of responsibility by the defendant as it is an issue that arises in some of the same authorities.
The New South Wales Police Force (“the police”) serves a number of important purposes and it is vital that the imposition of a duty of care in tort does not create obligations that would cause conflict with its primary services, functions and obligations. In Sullivan v Moody  HCA 59; 207 CLR 562 it was observed in the unanimous joint judgment at 582 :
(I)f a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that a duty exists.
It is therefore necessary to consider those obligations of the police and whether conflict would be created by the imposition of a tortious duty of care.
Sections 6 and 7 of the Police Act do not create private obligations, rather they are aspirational in nature: Wilson and Others v State of New South Wales  NSWSC 869; (2001) 53 NSWLR 407 at . Police are vested with the responsibility of performing a myriad of functions with many intended purposes and beneficiaries. An issue, which requires determination, is whether the imposition of a duty of care would create additional duties that are irreconcilable with the performance of the primary obligations. Such an issue raises for consideration public policy factors militating for and against the imposition of a duty of care in the circumstances of the instant case.
One of the leading cases on negligence actions concerning police is Hill v Chief Constable of West Yorkshire  AC 53 (“Hill”). In Hill the House of Lords dealt with a case in which the plaintiff’s daughter was attacked and died as a consequence. The plaintiff alleged that the murder could have been prevented had the police carried out a more adequate investigation into the activities of the criminal.
The House of Lords held that as a matter of public policy the police were immune from actions of negligence in respect of the activities in their investigation and suppression of crime. The plaintiff’s statement of claim was struck out on the basis that it revealed no cause of action. Lord Keith of Kinkel said (at 63):
(I)n my opinion there is another reason why an action for damages in negligence should not lie against the police in circumstances such as those of the present case, and that is public policy. …The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes. While some such actions might involve allegations of a simple and straightforward type of failure – for example that a police officer negligently tripped and fell while pursuing a burglar – others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do. The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and retraversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted. (Emphasis added).
The following cases provide further illustrative examples of the reluctance by the courts to impose a duty of care on the police in the investigation and prosecution of criminal acts.
In Tame v New South Wales  HCA 35; 211 CLR 317, considerations of the kind expressed in Hill led the Court to determine that a police officer engaged in a task relating to the investigation of an incident did not owe a duty of care to the person under investigation: Gaudron J at , per McHugh J at , per Gummow and Kirby JJ at , per Hayne J at , and per Callinan J at  – . In this case a motorist sued the State for damages for psychiatric injuries sustained as a result of being told of an erroneous entry concerning her blood alcohol level contained in a traffic accident report. All seven judges found no duty to take reasonable care to avoid psychiatric injury to the motorist. Although the judges expressed themselves in different words, most focused on the inconsistency between the asserted duty of care and a police officer’s duty in carrying out and recording the results of an investigation.
In Wilson v State of New South Wales, supra, the plaintiffs brought an action in negligence against the Department of Community Services and the NSW Police Service (as it was then known). The plaintiffs had been charged in relation to acts of sexual assault committed against children. The charges were ultimately dismissed. They alleged that the police owed a duty of care which required them to have conducted a proper and thorough investigation of the facts relating to the alleged charges of sexual abuse which they intended to bring against the plaintiffs, and to carry out such investigation in accordance with proper police practice and procedure.
After extensively reviewing the authorities, including Hill, O’Keefe J said (at 422 ):
The foregoing line of authority in my opinion strongly supports the conclusion that an action for negligence under the common law does not lie in respect of the exercise by police of their investigative functions on the basis that the investigations conducted were inadequate and that no action for negligence under the common law lies in respect of the performance of police prosecutorial functions, whether in the initiation of the prosecution, in its conduct or in respect of its continuance to the time of decision by a curial body.
Sullivan v Moody, supra, identified other factors which would hinder the development of a duty of care, namely the need for consistency and compatibility in obligations imposed on the effected parties. The High Court in a joint judgment held that a duty of care was not owed to an alleged perpetrator of sexual assaults by doctors and social workers who were engaged to investigate whether children had been the victims of such sexual assaults. Their Honours commented at 581 :A duty of the kind alleged should not be found if that duty would not be compatible with other duties which the respondents owed.
And at 582 :
Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.
Despite these cases weighing against the imposition of a duty of care in negligence, Hill is not authority for the proposition that there is immunity from liability in negligence for police officers in all circumstances; see State of NSW v Tyszyk, supra, at . In Tyszyk the Court of Appeal dealt with whether police owed a duty of care to a pedestrian who was injured by a water pipe that had been dislodged from the side of a building, with the police officers in question being aware of the danger. Campbell JA held that whilst policy considerations did not preclude the finding of a duty of care, the finding of a duty of care based on the ‘salient features’ approach was not warranted. His Honour made it plain that in his opinion each case would depend on its own facts.
The plaintiff’s appeal was dismissed:
Assuming the facts as pleaded, the present case is not analogous to those cases where a special relationship has been found to exist and nor has the plaintiff provided persuasive argument as to the existence of that relationship. In my view the types of policy considerations discussed in cases such as Hill, Tame and Cran strongly militate against a finding that Senior Constable Darlington had a duty of care that would found an action in negligence in his dealings with the plaintiff for the following reasons.
Police officers are charged with the primary responsibility of detecting and preventing crime such as to improve the general welfare of all members of society. To impose the duty contended for may cause police officers to devote additional resources in providing advice relating to matters, which in essence, are unrelated or not connected to their police functions.
If potential liability were to be recognised it would open the door to actions being brought against police officers on the ground that they failed to give advice or failed to give the right advice or failed to give the best advice. This may lead to police officers operating with a defensive frame of mind contrary to the public interest in officers performing their duties with skill, speed and dispatch.
The manner in which police investigations proceed, such as the present, must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Effectively, to create the duty contended for would require courts to analyse the actions of police officers in performing their investigatory and prosecutorial functions for the purpose of determining the issue of negligence.
There could well result a significant diversion of police resources into responding to and defending negligence actions and away from the performance of core police functions.
In this case, and accepting the assumed facts as per paragraph 1 – 20 of the statement of claim, the plaintiff cannot be described as one who had an inability to protect herself. Whilst her decision to sell her car so cheaply might have been questionable, it is not pleaded that she was compelled, threatened, coerced, tricked, enticed, overpowered, overawed or anything along those lines at the time she made her decision to sell the car to the officer for $100. Moreover the pleadings do not purport to assert that the plaintiff was at some ‘special risk’ of the conduct of the defendant: State of New South Wales v Godfrey & Godfrey, supra, at .
The plaintiff’s submission that the defendant had effective control over the plaintiff represents a misunderstanding of the concept: see, for example, Howard v Jarvis  HCA 19; 98 CLR 177 at 183; Brodie v Singleton Shire Council  HCA 29; 206 CLR 512 per Gaudron, McHugh and Gummow JJ at ); Graham Barclay Oysters v Ryan  HCA 54; (2002) 211 CLR 540 particularly, but not only, per Gummow and Hayne JJ at -; and Modbury Triangle Shopping Centre Pty Ltd v Anzil, supra, per Gleeson CJ at -, Gaudron J at -, and per Hayne J at -. On no view of the assumed facts could it be said that the plaintiff was under the control (in the sense discussed in those cases) of the police or, specifically, Senior Constable Darlington.
Assuming the facts as pleaded it may be inferred that the plaintiff relied to some degree upon the constable to do what a police officer should do for a victim of the crime that she was reporting to him. It is not pleaded, however, that she relied upon him to provide, that she expected him to provide, or that she was led to believe that he would provide, advice concerning a commercial transaction.
A consideration of these features do not support a finding of a duty of care.
The common law does not usually impose a duty of care to engage in positive action: State of NSW v Tyszyk, supra, at ; Agar v Hyde, supra at .
In Graham Barclay Oysters Pty Ltd v Ryan, supra, McHugh JA stated:
 Ordinarily, the common law does not impose a duty of care on a person to protect another from the risk of harm unless that person has created the risk. And public authorities are in no different position. A public authority has no duty to take reasonable care to protect other persons merely because the legislature has invested it with a power whose exercise could prevent harm to those persons. Thus, in most cases, a public authority will not be in breach of a common law duty by failing to exercise a discretionary power that is vested in it for the benefit of the general public. But if the authority has used its powers to intervene in a field of activity and increased the risk of harm to persons, it will ordinarily come under a duty of care. So also, if it knows or ought to know that a member of the public relies on it to exercise its power to protect his or her interests, the common law may impose a duty of care on the authority. If the authority comes under a duty of care, the failure of the authority to exercise a discretionary statutory power may give rise to a breach of the common law duty of care. But subject to these exceptions, ordinarily the common law will not impose an affirmative duty of care on an authority which would have the result that a failure to exercise a statutory power constitutes a breach of that duty.
Brisbane Barrister – David Cormack