Police Immunity and Duty of Care

The assignment provided explores the concept of police immunity and its significance in Queensland. It delves into the idea that police officers have a power and space to carry out their duties without fear of being sued for lack of care of duty. The document examines specific cases where police officers were not held liable for negligence, emphasizing the importance of understanding the nuances of duty of care in different scenarios. The assignment aims to provide a comprehensive understanding of police immunity and its implications in Queensland.

Tort Project

Table of Contents
INTRODUCTION...........................................................................................................................1
MEMORANDUM OF ADVICE.....................................................................................................1
CONCLUSION................................................................................................................................6
REFERENCES................................................................................................................................7

INTRODUCTION
The immunity available to police officers of Queensland for negligence and
care of study is discussed in the present report. The negligence can be related to
anything be it in a case of murder or a case of drinking and driving or over speeding.
The negligence on the part of police can cause a mental or physical harm as well as
injury or damage to citizen, which sometimes can be fatal and results in major monetary
harm or loss of life/lives. A memorandum of advice is prepared for police immunity. The
police has been granted with immunities for some negligence done on their behalf.
Memorandum encloses all the negligence that can be done and immunities available to
police officers
MEMORANDUM OF ADVICE
Memorandum:
To the partners of Brisbane, Queensland
Subject: The scope of police immunity from the liability in negligence.
Law of Negligence
Introduction:
This law defines the liabilities of public authorities and others on their part of
negligence. Law of negligence and limitation of liabilities act 2008 lies down all the
regulations related to negligence done by any person or public authorities and the harm,
damage or injury caused by it along with the compensation, punishment and immunity
for such negligence.
Purpose:
The purpose of this act is to provide consideration to issues related to illegal
activities and claims related in respect of death and personal injury. This act constitutes
that mere an apology cannot be constituted as an admission of a liability in case of civil
proceedings where the issue is related to death and injury of a person (Bell and Eski,
2015). The tort of negligence can cause damages, harm and injury. Damage includes
any form of monetary compensation. Harm includes injury or death, damage to property
and economic loss. Injury includes pre-natal injury, disease, psychological or psychiatric
injury and aggravation, acceleration or recurrence of an injury or disease.
General principles:
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1. A person cannot be held liable for negligence unless
 the risk associated with bit was foreseeable,
 the risk included was not significant,
 under the existing circumstance, the person should have taken precautions
2. Court considers the following facts for whether a reasonable person would have
taken precaution against a risk of harm
 the seriousness of harm
 burden of taking precaution to avoid the harm
 the probability that harm would occur if care was not taken
 the social burden on activities which create risk of harm
The law of negligence has been amendment for understanding the facts by
Supreme Court in two ways under the decision in case of Chief constable and
Robinson, 2018 (Ferrara and et.al., 2016). The first one was regarding the fact that
whether a case for duty of care falls within a category of cases of liability which is
recognised by the law or such case can be categorised under the analogy. Thus, the
three stage test will only be applicable on novel situations.
Secondly, the police under the liability of negligence is not immune, a duty of
care can be imposed on police as it is imposed on a private person.
Determination of scope of duty of care with the help of various scenario:
No care of duty is needed: In the case of New South Wales V/s Tame, decision
was pronounced that police officer does not owe a care of duty for a person who is
under investigation and when the accident report was prepared by his/her superiors
(Foster, 2017) . For the cases falling in category of novel situation, the reference of
general principle and analogous cases shall be taken into consideration. Consideration
can be related to the responsibilities, relationship, control, reliability and other areas of
law.
Protection of a person or prevent a crime: In the case of moody v Sullivan, a
senior police officer was found negligent of his duty when a plaintiff was shot dead in his
bedroom which was called by him and there arises a conflict in between duty to prevent
a crime or protect a person form harm as the plaintiff was about to commit a severe
harm and police shot him dead at his place only.
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No duty of care on police for the family of a missing person: In the case of
Cummings, 1996, the court stated four reasons for not imposing police with duty of care
for the family when charring out the investigation of a missing person. The reasons were
like the court will impose duty of care on indeterminate class of people and it would
order a non-objective and fearless investigation for a criminal activity (Iversen and et.al.,
2015). The third reason was that at the time of investigation, there may arise a conflict
of duties and last reason was that court can not intrude in matter and polices of police
officers when they work and take decisions on their discretion and priorities under an
investigation.
Duty of care to prevent breach of peace: the case where a plaintiff was
stabbed at a night club, accused 3 police officers for lack of duty of care in prevention of
breach of peach in the vicinity. The duty of care can not be imposed on off duty police
officer for negligence. The off duty police officers can not be held liable for the
commission of an offence and the application of the plaintiff can not be held liable, as
far an unarmed and ill equipped police officer is concerned. [PETE V LIN 2005]
Issue related to false imprisonment: in the case of Harold Luntz v David
Hambly, an action taken by a student in the Queensland against police officer and
government for negligence was unsuccessful. The case was related to false
imprisonment and it was found that in the arrest procedure their was no lack of care of
duty so negligence was their. The case when decided purely on the grounds of false
imprisonment the officers was held for negligence in investigation and care of duty was
owed to the plaintiff.
The action imposing an offence on police offices about the care of duty id nor
exactly defined and established. For a private individual it can be lack of care of duty but
in the eyes of law it can not be held as lack in care of duty and a negligence (Stanley,
Hom and Joiner, 2016). For once act it is suggestive and satisfactory but for other
activity it can not be held correct. The imposition of duty on the other case lead to
impermissible interferences with the decision capacity of the police officers and their
services.
Public liability of police officers at Queensland:
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A police officers while exercising their powers shall not worry about the actions
taken by them to perform their duty. There should not be any worry about being sued for
their actions. An amendment was made in public services and other legislation
amendment act 2014, regarding the assurance given to police officers for carrying out
their functions without a concern of being sued for their action. This amendment was
made to reduce the financial risk associated with such law suits.
The state have made provisions for resources which are contributions
recovered from the members, staff and officers if the states was held liable for the
actions of the relevant person. For the recovery to be held the state must prove that the
action of the relevant person was not in good faith and was an act of mere negligence
(Vallins, 2017). The officers if goes beyond the limit of their power then the state can
take action against the such police officer in the manner of recovery from him/her and
internal disciplinary actions which questions the action of such police officer.
The liability of policy for Negligence and immunity granted:
Section 246 of Australian securities and investment commission Ace 2001 gives
immunity for civil suits which is given to various public authorities. The Commonwealth
laws gives an authority to the commonwealth officers for the acts which would not
amount to tort in the civil law. The authorities are given to federal police officers and
custom officers for detaining and arresting person (Queensland judgement, 2018).
Power is given to authorities to search a person, search, seize and reattain the property
of a person who is under investigation. The limit of carrying on the investigation
activities is that the officers shall act within the lawful authorities given to them. When
they work within the power assigned to them there is no liability for duty of care and
immunity for negligence do not arise. The act which amount to tort can be trespass to a
person or to his/her property and trespassing of good or conversion of goods.
In the Australian federal police Act the power to arrest without warrant is given
but to arrest without a warrant in common law requires justification without that it is
consideration as tort. The power given by the Australian federal police act is an
immunity top police officers.
The police while conducting an investigation of a crime do not owe duty of care.
But in case on failure to respond to a complaint about harassment, makes a police
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officer liable for the duty of care and he was negligent to such case. There is no
imposition for duty of care on the police and police had given immunity for such
negligence. The immunity granted is not absolute in nature and so, can be taken away
from police when a person have incurred a fatal damage or injury. The police can be
held liable for care of duty at the time of investigation of crime or a case under civil
proceeding.
Police immunity:
The police officers in queens land are given powers and authorities to carry out
the function under the previews of their duty. The power are granted to them can be
terms as immunity provided to them so that can perform their duty freely without any
fear of being sued for their actions (Public liability of Queens land Police officers, 2018).
Before suing a police officer, private in individual or other groups of society must prove
that officer owe care of duty to the plaintiff and their was negligent act on his/her part.
Otherwise, police officer can not be held liable for his/her action when performing duty.
Addendum:
Addendum to memorandum of Advice
To, the partners of Brisbane, Queensland
Re: The scope of police immunity from the liability in negligence.
Date: 17th July 2018.
Novel Case: Robinson v Chief Constable
The case:
Mrs Robinson an elderly lady got injured during the attempted arrest of a drug
dealer by the police officers. Sue to the personal injury suffered by Mrs Robinson, she
made a claim against the police officer. For first instant the officer was held negligent
in carrying his duty. But the incident happened apprehending a suspect so there was
no care of duty weed to Mrs. Robinson and officer was not at negligent in the
performance of his duty.
It is very important to recognise that police always have a care of duty where
harm is caused directly through their actions. Where a third party causes a harm to
another person due to the involvement of the policy, the officers can not be held liable
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for negligent and do not owe care of duty.
Here it can be concluded that in certain cases it deeply uncertain to give same
judgement for a similar case laws when the matter is related to care of duty and
negligence on the part of police officers.
From: Junior Solicitor, Brisbane
CONCLUSION
The immunity to the police officers can be framed as the power and space given
to the officers to carry out their functions in course of performance of their duty. The
officers perform their function within the powers and authorities given to them without
any fear of being sued for their actions. The immunity is granted to the officers so that
they can not be accused for the lack of care of duty when performing the functions
under duty. The lack of duty does not carry same meaning in every case and varies in
each case. Police officers in Queensland are given certain power within which, if they
act can not be accused for lack of duty and given police immunity.
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REFERENCES
Books and Journals
Bell, S. and Eski, Y., 2015. ‘Break a Leg—It’s all in the mind’: Police Officers’ Attitudes
towards Colleagues with Mental Health Issues. Policing: A Journal of Policy and
Practice. 10(2). pp.95-101.
Ferrara, S. D nad et.al., 2016. International Guidelines on the Methods of
Ascertainment of Personal Injury and Damage Under Civil-Tort Law. In Personal
Injury and Damage Ascertainment under Civil Law. (pp. 583-602). Springer,
Cham.
Foster, N., 2017. Control, citizenship and ‘risk’in mental health: Perspectives from UK,
USA and Australia. In Mental Health at the Crossroads. (pp. 41-54). Routledge.
Iversen, J. L and et.al., 2015. HIV and hepatitis C virus infection and risk behaviors
among heterosexual, bisexual, and lesbian women who inject drugs in
Australia. LGBT health. 2(2). pp.127-134.
Stanley, I. H., Hom, M. A. and Joiner, T. E., 2016. A systematic review of suicidal
thoughts and behaviors among police officers, firefighters, EMTs, and
paramedics. Clinical psychology review. 44 pp.25-44.
Vallins, N., 2017. Police responses to family violence: Recasting a duty of
care. Alternative Law Journal. 42(1). pp.29-34.
Online
Queensland judgement. 2018. [Online]. Available through:
<https://www.queenslandjudgments.com.au/case/id/53491>.
Public liability of Queens land Police officers. 2018. [Online]. Available through:
<https://www.mcw.com.au/page/Publications/Administrative_Law/2014/public-
liability-of-queensland-police-officers/>.
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