Justice John Dixon in the Victorian Supreme Court has cleared the way for a woman and her children, who were all violently assaulted and threatened by the children’s father, to sue the State of Victoria for negligence and breaches of alleged duties of care for failing to enforce repeated breaches of intervention orders.
The woman and her children, who cannot be named, allege that police officers in two regional Victorian towns repeatedly failed over a nine-year period to take action against the father when he assaulted them and that police failed to protect them. They also assert that the failure by police amounted to a breach of their human rights and a breach of the public authorities’ obligations under the Charter of Human Rights and Responsibilities Act 2006 (Vic).
The State of Victoria had asked the Supreme Court for either a summary dismissal of the case before it goes to trial or for the Court to strike out the claims alleging that they owed a common law duty of care.
In rejecting the application by the State of Victoria, Justice Dixon said a summary dismissal would be an “extreme measure”, one that would “forever shut out” the plaintiffs from seeking to prove the claim at trial.
Justice Dixon said the issue of whether a police officer does owe a duty of care, at least in the terms as described in this case, must be determined on close analysis of the facts underpinning the relationship between the plaintiff and the defendants. He noted that while many cases have held that police and the police force do not owe a duty of care to a plaintiff (at least not in the circumstances of those particular cases), no court in Australia had yet considered the facts and circumstances that will be before the court in this case, including the legislative and policy frameworks relating to domestic violence at the time.
Justice Dixon said the case was “fact rich and fact intensive” and the State had not persuaded him that no duty of care could arise.
* A pseudonym
Note: This summary is necessarily incomplete. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.