Tort of Negligence in Police Force: Case Study of Sergeant McDonald
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This case study delves into the tort of negligence in the police force, using the case of Sergeant McDonald as an example. It discusses the elements of negligence, including duty of care, breach of duty, damage, and causation. The study also explores the consequences of negligence in the police force.
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INTRODUCTION Police officers in Australia do experience traumatic disorders due to horrible incidences they witness or handle. The Australian state government has a duty of care to its police force by ensuring that police officers get mental assistance to cope up with their situations and helping them relieve stress and depression. The case study of Mrs. MacDonald has been used to show how a tort of negligence arises on the part of government, its elements and possible remedies to the victims of tort. The case study delves into the understanding tortious liability for negligence, its elements, remedies and application to the case study of Sergeant McDonald’s suicide case. Definition and aims of tort law Civil law has a primary aim of making compensation to the aggrieved parties. Civil cases are instituted by private individuals who could be natural persons, legal persons and government agencies. In Australia tort law comprises of common law principles to a larger extent and Australian legislations to a smaller extent. A tort is defined to be a civil wrong to the exclusion of breach of contract. The civil wrong is done by private parties against other private parties or by the government agencies. The case study of this research focuses on the tort of negligence as discussed below. Elements of tortious liability for negligence For an individual to claim negligence, he or she must establish the following grounds of negligence against the defendant; Duty of care- the claimant must prove on a balance of probability that the defendant owes him a duty of care. Duty of care arises where there are set standards guiding the defendant his action. The defendant is therefore required to uphold those standards. (Amanda Stickley, 2016) Breach of duty- the claimant must establish that the defendant breached the duty of care by acting below the required standards. The standard of duty of care was demonstrated in the case ofDonoghue v Stevenson1where lord Atkin established duty of care using the neighbour principle by defining a neighbour as anyone affected by our actions. 1Donoghue v Stevenson [1932] AC 532
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Damage-the claimant has to prove that he suffered injuries due to breach of the duty of care owned to him. The injuries or the damage occasioned to the plaintiff would not have occurred if the defendant exercised due care and diligence by upholding the set standard required for his actions. Damage resulting from breach of such a duty was proved in the leading Australian case ofGrant v Australian Knitting mills2in a case seeking to hold the manufacturer of leather innerwear liable for skin disease caused to the plaintiff who wore a leather pant with excess Sulphur. Causation- there must be proximity between the careless action and the damage suffered. A causal connection has to be established proving that the negligent act caused the damage and not any other act hence just and fair to place liability on the wrong doer as evidenced in the case of Caparo industries PIC v Dickman3 Application to the case study of Sergeant Gabrielle MacDonald In this particular case study the plaintiffs who have instituted three tortious claims for a tort of negligence are the spouse to the deceased Mr. McDonald together with his children. The defendant who was sued is the New South Wales State. The plaintiff Mr. McDonald sued on behalf of his son and daughter, Joshua and Jessica respectively and on behalf of himself. (Lorna Knowles, 2016) The police department for the state of NSW was actually negligent in handling the post-traumatic stress disorder (PTSD) for Mrs. McDonald. All the four elements of negligence discussed above can actually be proved on the NSW police force administration. The New South Wales police department had a duty of care and breached that duty by failing to take all necessary measures they are supposed to take to handle Gabrielle’s condition at the moment. Despite the deceased having attempted to commit suicide, the police claimed it was not genuine and settled on a transfer option which was not well communicated to the deceased. The suicide victim was not subjected to proper monitoring of her condition from the police. She instead continued working in a worsened stressful condition. The duty of due diligence and care was breached by the police for failing to offer the victim with adequate training on her working 2Grant v Australian Knitting Mills [1935]UKPC 62 3Caparo Industries v Dickman [1990] UKHL 2
conditions and safety precautions.The victim suffered a psychotropic disorder leading to her death by suicide due to poor response of police to her condition. The husband who is the plaintiff also underwent an adjustment disorder resulting to anxiety, stress and depression due to the loss of his wife in such a nasty circumstance. The plaintiff is therefore likely to prove all the four elements of negligence discussed above which have resulted to psychotropic disorder and eventually death of his wife. Liability for mental harm is a codified civil wrong under the Civil Liability Act 2002. Part 3 of the Act was applied in the case ofWicks v SR4whereby the plaintiff after being instructed by the defendant to go and save train crash victims, he got traumatized and suffered mental harm after doing his best to save the victims. The case was however dismissed for failing to meet the threshold of psychiatric injury required as provided in part 3 of the Civil Liability Act 2002.5 If a police department is held responsible for negligence the liability could result to numerous challenges both to the society and the industry as a whole. The first consequence is the damage caused to the reputation of police officers hence people will view the police force as a harmful career to join. There could be also instances of loss of trust in the industry hence more people tending to refuse joining the police force. The consequence could also be stigmatization of police officers and perceiving them to be unfriendly and malicious. The final consequence discussed under this paper is increased financial budget of managing the police force. Most negligence claims if successful end up with compensatory orders for numerous types of damages requiring a lot of money which makes running the police force very expensive to the taxpayers. The police force should therefore ensure it upholds all the standards required in managing mental harm caused to officers while on duty to avoid negligence charges and liability for psychiatric injury under the Civil Liability Act. (Richard Hyde, 2016) CONCLUSION This case study aimed at discussing the tort of negligence and its elements basing on the practical experience of the tort of negligence on the case of McDonald’s family. The grounds required to prove negligence have been discussed to include; presence of duty of care, breach of the duty, damage and causal connection between the negligent act and damage. PTSD is a serious 4Wicks v State Rail Authority(SRA) of New South Wales [2010]HCA 22 5Civil Liability Act 2002 s 30(1)(2)
psychiatric injury that the police forces need to handle it with reasonable care to avoid claims of negligent. If the disorder is not monitored it could drive one to commit suicide due to depression. The consequences of such liability are dire on the industry and the society at large. Bibliography Caparo industries v Dickman [1990] UKHL 2 Civil Liability Act 2002 Donoghue v Stevenson [1932] AC 532 Grant v Australian Knitting Millis [1935] UKPC 62 Hyde, R, 2016, ‘The role of civil liability in ensuring police responsibility for failures to at after Michael and DSD’,European Journal of legal issuesvol 22, No 1 Lorna, K, 2016, ‘Family of NSW Policewoman who took her own life suing state for millions,’ TheABCNews,11July,viewed31May2019,ABCNewswebsite,< https://www.abc.net.au/news/2016-07-11/family-of-nsw-policewoman-who-took-her-own-life- suing-state/7576870> Stickley, A, 2016, AustralianTorts Law, 4thedition Lexis Nexis Wicks v South Rail Authority of NSW [2010] HCA 22