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A roundup of recent court decisions raising issues relating to the duty of care owed by the police; historical abuse cases in Australia; the importance of reliable expert evidence; and a forensic approach to evidence resulting in a client win.
Supreme Court considers police duty of care
Tindall v Chief Constable of Thames Valley Police [23.10.24]
The court found in favour of the defendant, confirming that a duty of care in negligence does not usually arise for failing to protect another from harm, as opposed to actually causing harm.
In March 2014, a road traffic accident occurred involving one vehicle driven by Mr Kendall on a patch of black ice. Prior to the arrival of the emergency services, he warned oncoming vehicles of the hazard. The police attended and placed a ‘police slow’ road sign whilst responding to the immediate aftermath. Once Mr Kendall was transported to hospital, the police removed the sign and debris but took no further steps to warn of the risk of ice. About 20 minutes later a fatal accident took place meters away from the initial accident. Both drivers were killed, one of whom was Mr Tindall.
Mrs Tindall brought a claim in negligence against the police for failing to take steps and making matters worse once Mr Kendall was removed from the scene. Mr Kendall’s evidence was that had he remained at the scene, he would have taken steps to warn road users of the risk of the ice. Alternatively, it was argued that the case fell within one of the exceptions to the general rule that no duty of care is owed to protect a person from harm.
The Supreme Court found that the police believed Kendall was a victim, not a rescuer. The police could not be liable for making matters worse, where it was not reasonably foreseeable their conduct would have this effect. The Court then considered exceptions to the general rule, namely:
- Had the officers assumed responsibility for Mr Tindall? No, there had been no words or conduct indicating a reliance on a promise made to take care to protect Mr Tindall from harm;
- Had the police taken control of the accident scene so as to give rise to a duty of care? No, it was accepted that the fatal accident occurred 184 metres away from the police scene and so at no point did they have control of the area. On the contrary, the allegation was that they did nothing at all and therefore cannot have been said to have taken control.
The decision reinforces that such situations will be few and far between, although it is clearly fact-specific.
Contacts: Rebecca Maby and Nichola Johnston
Related item: The duty of care owed by public authorities
High Court of Australia hands down three judgments on historical abuse
In November 2024, the High Court of Australia delivered three significant judgments in historical abuse cases. These decisions will have broad implications for both survivors seeking to bring claims for vicarious liability of non-employees and for defendants seeking permanent stays due to the passage of time, loss of evidence, and death of witnesses.
The decisions are:
- Bird v DP [13.11.24] - the plaintiff sued the Catholic Diocese of Ballarat for damages arising from alleged sexual abuse by Father Bryan Coffey, a priest with the Diocese, in 1971. The Diocese successfully argued that there was no employment relationship between it and Father Coffey, and therefore it could not be held vicariously liable for his actions.
- Willmot v State of Queensland [13.11.24] - the plaintiff, a former State ward, alleged she had suffered physical and sexual abuse while in foster care and a girls' dormitory between 1957 and 1959. The State of Queensland applied for a permanent stay of proceedings, arguing that the significant time lapse since the alleged abuse made a fair trial impossible due to unavailable evidence. The High Court moved away from a blanket stay highlighting the importance of a detailed, case-by-case analysis of each allegation, taking into account the current circumstances and the defendant’s ability to respond. As such, the plaintiff was permitted to proceed with the claim in respect of majority of the allegations, with a permanent stay being upheld in relation to the alleged sexual abuse by a family member.
- RC v Salvation Army [13.11.24] – the plaintiff alleged that he had been sexually abused by Lt. Frank Swift, a Salvation Army officer, at the Nedlands Boys' Home between 1959-1960. The Salvation Army applied for a permanent stay, arguing that the passage of time had erased crucial evidence and left no witnesses. A permanent stay was granted in respect of the whole of the proceedings in the trial court and court of appeal. However, the High Court overturned both judgments, determining that the evidence given by the Defendant’s Commissioner was sufficient to point to the Salvation Army’s awareness of potential issues in its system.
Until further legislative reform is introduced, courts will continue to apply the standard Australian test for vicarious liability and subsequently, claims alleging vicarious liability against an institution for the criminal acts of non-employees will face considerable challenges.
In relation to permanent stays, the decisions in Willmot and RC reinforce that while each case will turn on its own facts, defendants will face significant hurdles in bringing a permanent stay application. Courts are required to assess the specific circumstances of each allegation and the defendant’s ability to respond, rather than relying on prejudice arising from delay or death or unavailability of witnesses or evidence. For defendants, these decisions underscore the need to actively pursue evidence and follow up on potential leads, as failure to do so may prejudice any application for a permanent stay.
Contacts: Lucinda Lyons and Amanda Do
Related item: Landmark High Court of Australia decisions change the legal landscape for historical abuse claims
The importance of reliable expert evidence
Jones v Persimmon Homes Limited & Macob Scaffolding Limited [14.10.24]
Kennedys recently acted for the successful second defendant in this case which involved an accident when the claimant was working as a carpenter fitting facias and soffits during the construction of a house.
The first defendant was the housing developer and the second defendant engaged as the scaffolding contractor. To carry out his work the claimant used scaffold with a single access ladder. His case was that to descend the ladder from the second lift of the scaffold he placed his left hand on the left stile of the ladder, but it was fouled by the clamp which was facing outwards. He instinctively let go of the stile with his left hand and, in so doing, transferred his weight to his right-hand side. That caused the ladder to move, and his right hand was pinched between the right-hand stile and the clamp on that side. Letting go of the ladder he fell backwards on to the ground. The fall was one of nearly five metres and he sustained a serious orthopaedic injury to his left leg.
The case illustrates that with strong and aligned factual and expert evidence, cases can be defended successfully to trial. This was the case here where evidence was identified at an early stage through proactive investigation of the accident circumstances and the instruction of the right expert.
Contact: Huw Edwards
Related item: Kennedys successfully defends claim arising out of an accident on a building site
Forensic approach to medical evidence wins case
Joseph McIlwraith v Blue Vale Structures Limited [01.10.24]
This case is an example of the importance of carefully exploring causation with the help of medical evidence before issuing a claim.
The pursuer was a demolition worker who required a right leg amputation due to an infected toe ulcer. He was instructed to clear pieces of metal being cut from the roof of a warehouse in North Cumbernauld (the Site) following a partial collapse in the roof in May 2018.
The pursuer claimed that, by failing to ensure he had been provided with suitable waterproof working boots, the defender had breached their common law duty of care and health and safety regulations. The pursuer had a history of type II Diabetes Mellitus.
The turning point in this matter was the issue of causation. The Court accepted that there was standing water at the Site, no deeper than 5 inches, which caused the pursuer’s feet to be continuously wet while working. It was accepted that the pursuer first attended hospital complaining of an infected toe on 1 June 2018. The primary issue to address was whether the exposure to the wet environment was relevant to the subsequent amputation.
The pursuer’s medical expert attributed the injury to him developing Immersion Foot Syndrome which in turn caused the diabetic foot infection that resulted in the amputation. The defender was successful with the Court finding that the pursuer had failed to demonstrate a causal link between his exposure to standing water and the toe ulceration which led to the amputation of his foot. The duration of exposure was not sufficient to cause the pursuer to sustain Immersion Foot Syndrome. There was also no evidence that his toe was abnormal from the end of the immersion.
Contact: Stephen Hill
Related item: Causation in the eye of the beholder
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