Torts Essay Should tort law impose a duty of care on police to protect victims of domestic violence from harm? Introduction. The systemic failures of the police force to adequately protect victims of domestic violence from harm reveals the need for a duty of care to be imposed on the police officers employed to protect these vulnerable members of society.1 The very premise of tortious liability is to deter wrongdoing in society and to compensate those who are wrongfully injured.2 And yet, countless victims have spoken of negligent police responses to their claims of domestic violence.3 Policy considerations negating the existence of a duty of care continue to unfairly allow the police immunity while victims of domestic violence are rewarded no justice or accountability from the very people employed to protect them.4 This essay will outline the common law principles of establishing a novel duty of care and reveal that police officers should owe a duty of care to protect victims of domestic violence. Further, I will negate the unfounded policy considerations that are often relied on to maintain police immunity. Reasonable Foreseeability. The Australian courts have been reluctant to impose a duty of care on police to protect victims of domestic violence, requiring plaintiffs to prove reasonable foreseeability and prove the existence of salient features to establish that duty of care should be imposed in the novel case. 5 In cases of domestic violence, plaintiffs will generally satisfy the requirement of establishing that it is reasonably foreseeable that negligent police conduct may result in harm to the victim.6 This is because victims of domestic violence belong to a specific class of people who are at risk of harm. It is not necessary for the police to foresee the exact nature of harm that may be sustained. 7 However the prevalence of domestic violence in Australia highlights that, due to the recurrent nature of domestic violence over a sustained period, negligent inaction from the police will foreseeably result in harm. The reasonable foreseeability of harm is accentuated in cases such as Smith v State of Victoria whereby the officers were aware of a continual history of violent behaviour towards the plaintiffs by the father. 8 This case highlights that the victims themselves are acutely aware of the foreseeable harm they may find themselves in if the police respond to their call for protection inadequately. Kirsty Horsey, ‘Trust in the Police?, Police Negligence, Invisible Immunity and Disadvantaged Claimants ’in Janice Richardson and Erika Rackley (eds), Feminist Perspectives on Tort Law (Routledge, 2012) 80. 2 Pyrenees Shire Council v Day (1998) 192 CLR 330 (Gummow J at 123). 3 Mandy Shirecore, Heather Douglas and Victoria Morwood, ‘Domestic and Family Violence and Police Negligence’ (2017) 39(4) Sydney Law Review 539. 4 Kirsty Horsey (n 1) . 5 Caltex Refineries (Qld) Pty Ltd v Stavar (2009) NSWLR 649. 6 Mandy Shirecore, Heather Douglas and Victoria Morwood (n 3) . 7 Chapman v Hearse (1961) 106 CLR 112 (Dixon CJ, Kitto, Taylor and Windeyer JJ at 125). 8  VSC 475 (‘Smith’). 1 The plaintiff in that case gave evidence that she was fearful to involve the police as her past experiences and assumption of future ineffective police involvement would place her in greater danger of the offender retaliating. 9 Research has shown that this fear is not unfounded but instead perpetuated by failure of police to respond adequately which has contributed to the avoidance of over 50% of victims to report the most recent incident of violence to the police.10 The widespread systemic failures of police to adequately provide protection for victims despite the foreseeability that these people are often in imminent danger highlights the critical need for accountability from the very body enlisted by the government to protect the public. Salient features. Although reasonable foreseeability is often satisfied in cases of domestic violence, it alone is not enough to impose a duty of care on police officers for the safety of victims.11 The courts turn to salient features to further discuss this issue. One such feature is the degree and nature of the control that can be exercised by the police force to avoid harm to the victim. 12 The case of Smith identified that it is only in the exercise of a power to arrest that the police had control over the perpetrator.13 Although I would argue that the execution of the extant intervention orders awards the police with some control over the whereabouts of the defendant, I agree with judgement that further control can be exercised to mitigate the risk of harm to the defendant through ‘alternative forms of control [such as] security for the plaintiffs, or surveillance of the father’.14 If it were to be held that police officers have no capacity to exercise control to mitigate harm to victims of domestic violence their role to protect society appears to be redundant, particularly in cases such as State of New South Wales v Spearpoint where the police had many opportunities to arrest the perpetrator for multiple breaches of an apprehended violence order.15 Because a police officer failed to effectively act out their duties cannot be a valid argument to prove that a duty of care does not exist because they did not have control over the perpetrator. If this were to be the case, it could be argued that police officers would be even more resistant to utilising their power of arrest to avoid the possibility of litigation through the establishment of a duty of care. This would be to the further benefit of the perpetrator and to the detriment of the victim and society in general. Knowledge and assumption of responsibility are features that are arguably present in cases where the victim has actively sought help from the police. I disagree with the findings in Michael v Chief Constable of South Wales that assumption of responsibility did not arise after the police assured her that they would attend to 9 Ibid 36. Jane Goodman-Delahunty and Anna Corbo Crehan, ‘Enhancing Police Responses to Domestic Violence Incidents: Reports From Client Advocates In New South Wales ’(2016) 22(8) Violence Against Women 1007, 1009. 11 Jaensch v Coffey (1984) 155 CLR 549; Perre v Apand Pty Ltd (1999) 198 CLR 180; Sullivan v Moody (2001) 207 CLR 562. 12 Caltex Refineries (Qld) Pty Ltd v Stavar (2009) NSWLR 649 (Allsop P at 103). 13 Smith (n 8) 133. 14 Ibid 135 15 State of New South Wales v Spearpoint  NSWCA 223. 10 her.16 Communications with police such as this creates in the mind of the victim a reasonable reliance on the police to perform their duties. This means victims would trust police with their safety and may not seek other avenues for their safety. In doing so, the negligent actions of police can exclude the victim from protection at all. Police also have the unique power to access reports on past acts of violence and breaches of apprehended violence orders. They ordinarily have extensive knowledge of who the perpetuator and victims are, which strengthens the proximity of relationship between the victim and officers.17 Thus it should be held in cases where there has been extensive communication between the victim and the police that a duty of care may exist, when supplemented by other salient factors, due to the specific knowledge of the risk to the plaintiffs. Domestic violence victims are especially vulnerable to harm as the consequence of negligent police actions. This is evidenced by devastating cases such as Michael18 and Batchelor v Tasmania where such negligence resulted in the victim's death.19 It is not reasonably expected that victims seek alternative forms of protection to protect themselves from this harm, specifically because the duties of police officers include protecting vulnerable people from harm.20 Years of research has revealed the vulnerability of domestic violence victims and the barriers many victims face in seeking safety, particularly where the violence comes from someone known and inextricably tied to the offender through relational matters and children.21 Statistics show a tendency of domestic violence victims to first turn to family and friends for help due to negative connotations associated with the police.22 This expectancy that police will not adequately protect victims from harm places them in the vulnerable position of not seeking help and allowing harm to continue. Thus, it could be interpreted that those who do enlist the help of police are particularly vulnerable to harm. Conflicting duties. The courts have often argued that the imposition of a duty of care on police to protect victims of domestic violence would conflict with other duties of the police force. 23 This argument is centred on the notion that if police owe a private duty to an individual member of the public, this would conflict with their duty to act in public interest.24 I agree that in the context of cases such as Hill where the perpetrator and victim is unknown 16  UKSC 2 (‘Michael’) (Lord Toulson JSC at 138). Ibid (Lord Kerr at 174). 18 Michael v Chief Constable of South Wales  UKSC 2. 19 Batchelor v Tasmania (2005) 13 Tas R 40. 20 Crimmins v Stevedoring Finance Committee (1999) 200 CLR 1 (McHugh J); Hunter Area Health Service v Presland  63 NSWLR 22 (Spigelman CJ at 19). 21 Niwako Yamawaki et al, ‘Perceptions of Domestic Violence: The Effects of Domestic Violence Myths, Victim’s Relationship with Her Abuser, and the Decision to Return to Her Abuser ’(2012) 27(16) Journal of Interpersonal Violence 3195. 22 Jane Goodman-Delahunty and Anna Corbo Crehan, ‘Enhancing Police Responses to Domestic Violence Incidents: Reports From Client Advocates In New South Wales ’(2016) 22(8) Violence Against Women 1007, 1009. 23 Hill v Chief Constable of West Yorkshire  2 WLR 1049 (‘Hill’); Slaveski v Victoria  VSC 411 ; Michael v Chief Constable of South Wales  UKSC 2. 24 Sullivan v Moody 207 CLR 562. 17 to the police that cannot be expected to owe a duty of care to such members as this would strain the expectations of police too broadly.25 Such policy consideration is grounded in the law that does not generally impose a duty of care to protect plaintiffs from harm from a third party harm. This common law principle is addressed and applicable to the facts Modbury Triangle Shopping Center v Anzil26, however should be deemed irrelevant in cases such as Smith due to the predictable nature of known domestic violence perpetrators and the capacity of the police to limit the potential risk of harm to the victim.27 In the case of Modbury the judgement was mounted on the defendant’s inability to control the actions of an unforeseeable third party.28 In cases of domestic violence where the victim has participated in prolonged communication of the police I believe that the factors such as the capacity the police have to provide protection for the victim, the knowledge of the identity and whereabouts of the specific threat and the known vulnerability of the victim should impose a duty of care on police to take reasonable steps to prevent such threat.29 I believe this aligns with the police forces wider general duties of protection the public from harm. In the case of Smith, the common law rule that a person has no duty to protect another from the risk of harm unless that person created that risk should have been inapplicable due to the positive act of the police officer dropping the perpetrator close to the plaintiffs home, resulting in further violence from the victim.30 Policy considerations are often critically examined to determine whether a duty of care exists in order to avoid conflicts between one area of law with another.31 A policy consideration relied on by the courts is found in Hill v Chief Constable of West Yorkshire which held that due to the special nature of police investigation, the imposition of a private duty of care which lead to defensive practices and reduce the effectiveness of police time and resource allocation. I argue that the imposition of civil liability of police to victims of domestic violence would identify the flaws in police procedure and increase prudent practices which could in fact reduce the recurrence of domestic violence by identifying the problem earlier on and actively resolving the issue rather than having to take the time to investigate repeat incidents which are likely to occur by the nature of domestic violence. The judgement of McLachlin CJ in the Canadian case of Hill v Hamilton-Wentworth RPSB noted that the law of negligence could result in the police taking greater care in the conduct of investigations if there was the consequence of civil litigation if they do not do so.32 For example in the case of Michael the death of the victim may have been avoided if the police had simply checked their records which would have revealed a history of abuse by the offender over the last 18 months.33 This process would not have strained police resources and time in such a way to render the Hill v Chief Constable of West Yorkshire  2 WLR 1049 (‘Hill’). 205 CLR 254 (‘Modbury’). 27 Smith (n 8) 134. 28 Modbury (n 25). 29 Smith v Chief Constable of Sussex  1 AC 225 . 30 Smith (n 8); Graham Barclay Oysters v Ryan (McHugh JA at 81). 31 Sullivan v Moody 207 CLR 562; Hill v Chief Constable of West Yorkshire  AC 53. 25 26 32  3 SCR 129, 159 . 33 Michael (n 18). imposition of a duty of care ineffective for the functioning of police force. If the police officers act effectively, this should reduce the incidents of domestic violence by effective police practices that deter perpetrators and enhance the trust and communication of victims to depend on the police to solve the matters when they first begin to occur, rather than the prolonged and negligent series of events highlighted in Smith.34 I strongly dispute the simplistic and somewhat naive view given by Lord Keith in Hill that police are sufficiently motivated by a sense of public duty which is ‘unlikely to be appreciably reinforced by the imposition of such liability’.35 It has already been shown that the victims themselves do not have this confidence in the discretion of the police force, through countless examples of systemic discrimination and incompetence.36 It is inconceivable to expect victims to rely on the discretion of officers to determine whether their claims of violence are legitimate or should be adequately investigated without any avenue of accountability and restitution when this discretion leads to a failure from the very body that is enlisted to protect them.37 It is evident that the systemic failures of the police force in dealing with domestic violence victims requires increased accountability. It is no longer enough to rely on the discretion of police in the hope that they will adequately investigate claims of domestic violence. Years of police failure to protect the vulnerable victims of domestic violence requires a more stringent approach through the imposition of a duty of care on police. Civil litigation must be accessible to victims for them to receive the same opportunities for resolution enjoyed by other members of society. 34 Smith (n 8). Hill v Chief Constable of West Yorkshire  AC 53, 63. 36 Jane Goodman-Delahunty and Anna Corbo Crehan, ‘Enhancing Police Responses to Domestic Violence Incidents: Reports From Client Advocates In New South Wales ’(2016) 22(8) Violence Against Women 1007, 1012. 37 Smith v State of Victoria  VSC 475 at . 35 Bibliography. A. Articles/ Books/ Reports Al-Azzawi, Yusur ‘Opening the Door on Police’s Duty of Care ’(2019) 153 Precedent 22 Goodman-Delahunty, Jane and Anna Corbo Crehan, ‘Enhancing Police Responses to Domestic Violence Incidents: Reports From Client Advocates In New South Wales ’(2016) 22(8) Violence Against Women 1007 Horsey, Kirsty ‘Trust in the Police?, Police Negligence, Invisible Immunity and Disadvantaged Claimants ’in Janice Richardson and Erika Rackley (eds), Feminist Perspectives on Tort Law (Routledge, 2012) 80 Shirecore, Mandy, Heather Douglas and Victoria Morwood, ‘Domestic and Family Violence and Police Negligence ’(2017) 39(4) Sydney Law Review 539. Yamawaki, Niwako, Monica Ochoa and Craig Pulsipher, ‘Perceptions of Domestic Violence: The Effects of Domestic Violence Myths, Victim’s Relationship with Her Abuser, and the Decision to Return to Her Abuser ’(2012) 27(16) Journal of Interpersonal Violence 3195. B. Cases Batchelor v Tasmania (2005) 13 Tas R 40 Caltex Refineries (Qld) Pty Ltd v Stavar (2009) NSWLR 649 Chapman v Hearse (1961) 106 CLR 112 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Fuller-Wilson v State of New South Wales  NSWCA 218 Hill v Chief Constable of West Yorkshire  AC 53 Hill v Hamilton-Wentworth RPSB  3 SCR 129 Hunter Area Health Service v Presland  63 NSWLR 22 Jaensch v Coffey (1984) 155 CLR 549 Michael v Chief Constable of South Wales  UKSC 2 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254. Pyrenees Shire Council v Day (1998) 192 CLR 330 Slaveski v Victoria  VSC 411 ; Smith v Chief Constable of Sussex  1 AC 225 Smith v State of Victoria  VSC 475 State of New South Wales v Spearpoint  NSWCA 223 Stuart v Kirkland - Veenstra (2009) 254 ALR 432 Sullivan v Moody 207 CLR 562 c. Other Carrick, Damien on ‘Civil Actions against Police by Crime Victims’, The Law Report (ABC Radio National, 18 March 2014) <https://www.abc.net.au/radionational/programs/lawreport/ciivil-actions-against-policebycrime-victims/5325170>.