Police Negligence in Domestic Violence Associate Professor Mandy Shircore

Michael and Others v The Chief Constable of South Wales Police and Another The consequences are stark and tragic. Ms Michael has lost her life in the most violent fashion… .An investigation by the Independent Police Complaints Commission led to a lengthy report. It contained serious criticisms of both police forces for individual and organisational failures.

The Problem of Domestic Violence Tara Brown: Police officers disciplined over handling of domestic violence protection order

Suing the Police in Negligence Could police in Australia be held liable in negligence for harm that has resulted from a failure by the police to respond adequately to a domestic violence situation?

Duty of Care – Salient Factors Third party criminal harm The degree of control The vulnerability of the victim Inconsistent Duties Public policy considerations

The reasonably foreseeable plaintiff

Liability for Third Party Criminal Conduct “the general rule is that the law does not impose on a person a duty to control another’s actions to prevent harm to third persons” Modbury Triangle Shopping Centre v Anzil

Control over the source of harm Where the defendant has control over the source of harm (the perpetrator of the violence) court may be more willing to find a duty of care existed. Does the Domestic and Family Violence Protection Act provide the police with powers to control the perpetrator of domestic violence?

Vulnerability of the Plt The plaintiff could not reasonably be expected to have protected themselves from the risk or source of harm Reliance The plaintiff could reasonably rely on the defendant to properly exercise reasonable care and skill Assumption of Responsibility Where the defendant assumes a responsibility to protect the plaintiff – duty of care more readily imposed

Domestic Violence Negligence cases Batchelor v Tasmania (2005) 13 Tas R 403; Spearpoint v New South Wales [2009] NSWCA 233 (30 July 2009); Police assumed responsibility to protect Plaintiff Plaintiff reasonably relied on defendant to protect DUTY OF CARE ARGUABLE

Inconsistent Duties Public duty to protect public at large vs. Private duty of care to an individual

Public Policy Considerations Hill v Chief Constable of West Yorkshire No Duty owed by police for investigative work Open Floodgates Not effective mechanism for improving police investigations Divert resources from police work Encourage Defensive Policing

At least arguable in Australia Conclusion Could the police be held liable in negligence for failing to adequately respond to a call for help from a victim of domestic violence? At least arguable in Australia