Claims Against Public Officials. Introduction. Negligence inconsistent duties of public officials. Client Newsletter

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1 Litigation Client Newsletter Claims Against Public Officials Recent Significant Cases February 2008 Introduction This newsletter throws a spotlight on negligence claims against the police and raises the broader question for our clients as to the circumstances in which negligence can be pleaded against public officials, and the grounds on which such claims can be defended. In particular, we discuss the situation where inconsistent duties arise. We also discuss a recent case where the provision of information led to claims of defamation and/or negligence. Our final case study considers the circumstances in which the Chief Commissioner of Police may lawfully dismiss a member of the police force for breaching his public duties. Negligence inconsistent duties of public officials We have been involved in a number of interesting cases recently which have considered the scope of the duty of care imposed upon members of Victoria Police to individual members of the public. By the common law, police officers owe a duty to the general public to enforce the criminal law, and are vested with a broad discretion as to the manner in which they choose to fulfil this duty. In these recent cases, we have argued successfully that to impose common law duties of care on police officers to a particular member or members of the public in addition to their duty to the general public can be inconsistent with the proper and effective discharge of their public responsibilities. We have relied upon the High Court cases of Sullivan v Moody (2001) 107 CLR 562 and Tame v New South Wales (2002) 211 CLR 317 to support this proposition. In Kirkland-Veenstra v Stuart & Ors, we act for two police officers who came upon a member of the public in the early hours of the morning sitting in his vehicle with a vacuum hose running from his exhaust pipe into his window. After talking with the individual for some time and making various inquiries, the police officers assessed that the individual was not a current risk of self-harm. Accordingly, after offering to drive him home, call his wife or take him to a hospital and/or doctor, they permitted him to drive home. The individual committed suicide later that day in his car via carbon monoxide poisoning. The partner of the deceased sued the police officers and the State of Victoria for, among other things, negligence. We successfully argued in the County Court that the police officers did not owe the deceased or the deceased s partner a duty of care in the circumstances. We argued that the imposition of such a duty would be inconsistent with their other duties imposed by, among other things, the Mental Health Act 1986 and that the proper performance of these duties would be

2 significantly and impermissibly constrained by the imposition of the duty of care to the deceased or his partner. The County Court dismissed the claim against the police officers and the State on the ground that the police officers did not owe the deceased or the deceased s partner a duty of care in the circumstances. The deceased s partner has appealed this decision to the Court of Appeal and we expect to receive its decision very soon. The Court of Appeal s interpretation and application of this important principle in the law of negligence will be of great interest to Victoria Police and other police forces in other jurisdictions in Australia. We have successfully argued this point in other cases for Victoria Police in Soutter v Williams [2007] VCC 306, Mohamed v State of Victoria [2007] VSC 538, Gandy v State of Victoria [2006] 480. Provision of information by authorities, defamation and negligence What happens when a person applies to a public authority and finds out that the information held about him/her is completely, sometimes shockingly, incorrect? Litigation in defamation and negligence! That s how Mr Mohamed dealt with receipt of a National Police Certificate issued by Victoria Police Records Services Division that contained incorrect criminal record information, in particular, stating that he was a violent offender under investigation for theft and rape. On 12 May 2006 Mr Mohamed issued a defamation and negligence claim against the State of Victoria in the Major Torts List of the Supreme Court seeking damages including for psychiatric injury. The matter was heard on 4 December 2007 before Justice Harper. Defamation claim Mr Mohamed s claim in defamation failed. In order to establish a cause of action for defamation, Mr Mohamed was required to establish that the incorrect information provided Page 2 to him by Records Services Division (following his application and consent for the information to be released) was published, that is, communicated to and comprehended by some person other than himself (or his agent/solicitor). Full particulars of the persons to whom, the dates when, and the places where the incorrect criminal information was published must be given. He failed to do this. The only person to receive the Certificate was Mr Mohamed and his lawyer further to his application and consent. The focus in defamation is the damage done to a person s reputation. It is not enough to say that the information could potentially have been sent to a third person or organisation and caused damage to his reputation, or that it was stored on the National Police Database and might have been released to a third party. In short, the basis of Mr Mohamed s claim in defamation was merely speculative. He submitted that the incorrect information had been provided by Records Services Division to a government department in Western Australia. Mr Mohamed did not have, however, any evidence or particulars of that material fact. Further, the Court said that Mr Mohamed could not use the proceeding as a fishing expedition for documents that might support his argument. If Mr Mohamed needed information, the appropriate course is to seek discovery from a non-party (in this case, the government in Western Australia) under Court Rules. As the substantive element of his cause of action could not be pleaded, the cause of action failed. Negligence claim Mr Mohamed s claim in negligence also failed. He alleged that the State of Victoria, or its servants and agents in Records Services Division, owed a duty to him to exercise reasonable care to avoid causing him psychiatric injury and that the State breached that duty by recording and publishing incorrect criminal record information. Justice Harper found that no claim in negligence could be pleaded against the State for two main reasons: 1. It is well established by High Court authority that where a plaintiff claims to have suffered loss by reason of the publication of defamatory matter, the remedy lies in the

3 law of defamation, not the law of negligence: Sullivan v Moody (2001) 207 CLR 562 and Tame v New South Wales (2002) 211 CLR 317. In short, negligence can not be pleaded in the alternative when the proper cause of action lies in defamation. 2. There is no duty of care on the relevant authorities to a person about whom information is stored on a police data base. His Honour stated [at 31 and 32]: It is hardly necessary for me to note my acceptance of the submission of the plaintiff that in making entries on the database those responsible for taking that action ought to act with care. The accuracy of the data base is important. It is important for appropriate police operations and it is important in that the consequences of dissemination of incorrect information can be serious particularly where the information relates to a person who suffers by an inaccuracy which is then disseminated. To say that, however, is not necessarily to accede to the proposition that a duty of care to a person the subject of the information maintained on the data base exists in the relevant authority. Indeed, it seems to me that by analogy with the cases to which I have referred, that is, Sullivan v Moody and Tame v New South Wales, the law is that there is no duty of care on the relevant authorities to a person about whom information is stored on a police data base. To impose such a duty of care would be to impose upon the relevant persons or authorities a duty that, if not directly inconsistent with the duty relation to the requirements of the authority or authorities in maintaining the data base, would interfere with the proper execution of that duty. The first priority of those maintaining the data base must be to place information on it that will be relevant to the operation of police forces in the various Australian jurisdictions. That duty may conflict with the imposition of a duty of care to an individual the subject to that information. There is also, as I have indicated, the difficulty of inconsistency between the law relating to negligence and the law relating to defamation. Page 3 Justice Harper ordered pursuant to Rule of the Rules of the Supreme Court that there be judgement for the State with costs. Summary How far this decision regarding defamation and negligence applies to situations other than the release of criminal record information is not certain. However, subject to any statutory requirements that may apply, some key messages arise for public authorities who are charged with keeping and maintaining databases that contain personal details and information: There is strong authority that a public servant is not under a common law duty of care to avoid (psychiatric) injury to a person who may receive incorrect information that is stored on an official public database. Further, in circumstances relating to the provision of information and communication, claims of negligence against a public authority will not proceed where the proper cause of action lies in defamation. In order to avoid claims of defamation, any information provided by a public authority must be done with the formal written consent of the applicant and must only be provided directly to the applicant or his/her agent. Dismissal powers of the Chief Commissioner of Police Richard Shields V Chief Commissioner of Police The maintenance of community confidence in the integrity of the police force is a matter of fundamental importance. So said the Hon Justice Bell in a recent case of judicial review of a decision of the Chief Commissioner of Police

4 (CCP) to dismiss a member of the Victoria Police Force. Richard Shields was a uniformed senior sergeant and a policeman of 19 years who was dismissed by the Chief Commissioner of Police (CCP) in September 2006 under the power of dismissal under s 68 of the Police Regulation Act 1958 (the Act). Section 68 of the Act was amended in 1999 to give the CCP the power to sack any officer if she was satisfied of their unsuitability to continue in the force, having regard to their integrity and the potential loss of community confidence in the force if they remained. The CCP decided to dismiss him after she found he had openly engaged in persecutory, intimidatory and bullying behaviour towards others, including conduct that humiliated and degrades women between 1995 and She also found that he had placed the professional development of a probationary constable, whom he was in a relationship with in 2005, above officers under his command when he allowed her to accompany him on police raids while she was off-duty and not authorised to attend. Mr Shields submitted that he had been denied natural justice, that he was entitled to the whole ESD file and not just the information the CCP intended to act upon, that the CCP prejudged the matter by making provisional findings, that she exercised her powers for improper purposes, failed to follow the correct approach on the onus of proof, took into account irrelevant considerations and failed to take into account the members prior good record. Procedural fairness His Honour found that: Procedural fairness did not require the CCP to give Mr Shields access to the entirety of the ESD files - she was only required to do this if the files contained exculpatory material. Mr Shields was unable to point to a particular witness or evidence that might be relevant to something in issue. A member cannot use the rules of procedural fairness simply to go on a fishing exercise to audit the ESD investigation unless Page 4 there was some reason to think there had been a cover-up or the investigation undertaken by ESD had been compromised or that Mr Shields had been victimised or treated unfairly during the course of the investigation or that the integrity of what was put before the CCP was doubtful. His Honour found that procedural fairness did require the CCP to follow up reasonable requests by Mr Shields for police officers to be interviewed and if she had refused to do so, his Honour found that the rules of natural justice would have been breached. His Honour stated that the CCP found a sensible and practical way to deal with the issue which was to ask ESD to conduct the interviews of 12 officers whom Mr Shields identified and then to make the statements available. His Honour found that the kind of approach that should be adopted in issues of this kind will no doubt depend on the circumstances of each case. Pre-judgment In dismissing Mr Shields allegations that the CCP prejudged his dismissal, his Honour reviewed the law in relation to bias and what is required of a decision maker. Section 68 of the Act required the CCP to carry out an initial investigation, give notice of a provisional view, take submissions into account and act on the final view. His Honour examined the reasons for the dismissal and found that he could not conclude that a fair-minded observer might reasonably apprehend that the CCP s mind was closed to persuasion in the decision to dismiss him. The court found that s 68 authorised a dismissal only on the basis of the CCP s final state of satisfaction which could only be legitimately formed only after taking into account the member s submissions. He found that the CCP s careful consideration of Mr Shields submissions showed that she took them seriously into account, was prepared to accept some and was prepared to depart from her provisional views in significant respects. The Court found that the CCP s final findings and the conclusions reflected her adherence to mandatory statutory procedure, not her prejudgement of the issues.

5 Relevant considerations Mr Shields argued that the CCP failed to take into account his good record before exercising the power to dismiss. His Honour found that the CCP, before dismissing someone, has to be satisfied that the member is unsuitable to continue, having regard to their integrity and the potential loss of community confidence in their continuance. His Honour found that a member s history of prior good service and character (or to the contrary) are plainly relevant in the CCP s consideration of whether to dismiss. The court stated that even in cases where the consideration as to good character may be positive, the CCP may still be legitimately satisfied that the member, by reason of the gravity of their conduct, is unsuitable to continue. The CCP considered specifically Mr Shields submissions in respect to good character but still found that Mr Shields was unsuitable to continue by reason of the gravity of the grounds against him, which simply overwhelmed other considerations. The Court did not find her conclusion in any way surprising. Availability of other disciplinary procedures before dismissal The question arose as to whether the CCP was bound to consider the availability of disciplinary and other provisions under Part IV of the Act before exercising the power to dismiss in s 68(1). The Court found that the availability of the alternative statutory mechanism under Part IV was not relevant to fulfilling the scope, object and purposes of the power under s 68 and therefore when exercising that power, the CCP was not bound to consider the alternative statutory process for dealing with the matter. The Court found that it is for the CCP to determine the appropriate way to proceed and the fact that issues capable of being dealt with in a disciplinary hearing under Division 2, Part IV was not relevant to fulfilling the scope, object and purpose of the power under s 68. Improper purpose The court found that the statutory powers for the dismissal of police officers must be exercised for the purposes which they were conferred and in Page 5 good faith. The Court found that the s 68(1) power was conferred on the CCP for the purposes of maintaining the integrity of, and the community confidence in, the police force and whilst it was convenient to describe the power in s 68(1) as managerial, the Court declined to use that reference in relation to the power as the term was more apt to describe a discretionary or executive power that is more likely to be used in industrial law where the expression managerial prerogative refers to the capacity of management the employer to make decisions at its discretion. His Honour found that it would be unfortunate and legally incorrect for the power in s 68(1) to be understood in that way, for that is not what the nature of the power that was conferred under s 68(1). The Court noted the power conferred is quite definite and confers a power of dismissal for maintaining the integrity of, and community confidence, in the force; nothing more and nothing less. The Court found that there was not a scintilla of evidence in the case to suggest that the CCP dismissed Mr Shields for any other purpose other than that she had found him to have engaged (amongst other things) in humiliating and degrading conduct towards women, and allowed his relationship with a young female constable to lead him to extend favourable treatment to her to the disadvantage of others. The Court found that this was a lawful basis for the CCP to be satisfied that Mr Shields was unsuitable to continue to be a member of the force. The Court having considered Mr Shields submissions found that: He was not denied natural justice and the CCP followed the correct statutory procedure and gave Mr Shields a full and proper opportunity to answer the allegations against him. The CCP did not commit any errors of law. The law required her to make provisional findings from which she was prepared to depart, and about which she gave to Mr Shields an opportunity to make submissions and she made final findings only after considering his submissions.

6 Mr Shields good character and record of service was taken into account by the CCP and she did not ignore considerations which she was bound to take into account. She was not bound to consider the possible availability of the ordinary processes for disciplining police officers, for these were not an issue. The Court found that the power of dismissal in s 68(1) has to be exercised according to it own terms, which is how the CCP approached the matter. The CCP did not exercise the power in s 68(1) for the improper purposes of avoiding those ordinary disciplinary processes and her findings were supported by evidence. The CCP had a positive responsibility under the Police Regulation Act to maintain the integrity of, and community confidence in, the police force. The amendments to the 1958 Act were to enhance the capacity of the CCP to carry out that responsibility by giving her the power to remove a member who she is satisfied is unsuitable to continue. Section 68(1) did not confer a discretionary power that can be exercised by the CCP according to her managerial prerogative. The power is to be exercised in a compulsive manner for the definite purpose for which it was conferred and once the CCP was Page 6 satisfied that the member is unsuitable to continue, having regard to their integrity and the potential loss of community confidence if they were to continue, she must dismiss them. The Court found that Mr Shields dismissal was lawful and he was ordered to pay costs. For further information For further information or legal advice on any issues raised in this newsletter contact: Stephen Lee on Assistant Victorian Government Solicitor Antonio Mazzone on Managing Principal Solicitor David Ryan on Managing Principal Solicitor Sue Ellen Morrison on Senior Solicitor The VGSO is the primary source of legal services to the Victorian State Government and its statutory authorities, providing strategic advice and practical legal solutions.

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