Tara Smith (not her real name) claims Victoria Police officers were negligent because they failed to prevent multiple breaches of multiple protection orders over multiple years by her ex-partner, the father of her children. As a result, Smith and the children have suffered ongoing psychological harm.
This week, the Victorian Supreme Court has refused an application by the State of Victoria to strike out Smith’s negligence claim.
This is an important decision because no Australian case has determined the question of whether police owe a common law duty of care to victims of domestic violence. Finding a duty of care is the first step in a civil action for damages in negligence.
Every year in Australia, more than 100,000 victims of domestic violence take out a protection order (e.g. a restraining order). In Smith’s case, the State of Victoria argued that imposing a duty of care on police would result in police owing conflicting duties to individuals versus the general public, and could result in “defensive” police practices.
When the case is finally heard, the court will need to consider the nature of the relationship between the police and Smith and her children in deciding if the police owe a duty of care. The court will also consider the nature of the harm. So far, no Australian cases have found that police can’t be sued for negligence.
Smith argued that her ex-partner was a known re-offender of family violence and the police had the power and responsibility to enforce the protection orders. She alleged that the police failed to follow their own training and procedures when they failed to enforce the protection orders.
Police officers have a difficult task in tackling domestic violence. They require specialised and ongoing training to deal with the complex issues involved. Yet, like other professionals, it should be possible to hold them accountable for their failure to do so. Denying that police owe a duty of care to victims of domestic violence in circumstances of serious failures could send a message to victims that they cannot rely on police for protection.
Mandy Shircore is an associate professor at James Cook University. Heather Douglas is Professor of Law at The University of Queensland.
