That’s the headline from a story from Channel 7’s program ‘Today Tonight’ and which can be found at <http://au.news.yahoo.com/today-tonight/lifestyle/article/-/17253616/cop-sues-offenders-family/>. It’s not surprising, given the quality of journalism on that show, that much of what is reported is wrong. First the text says:

“The police officer is suing the estate of a murder-suicide offender, claiming he suffered psychological trauma, after attending the distressing crime scene.
The court will be asked to decide if the family of the man responsible for the crime, is liable for the psychological injury suffered by the officer.”

They are actually two different propositions. If he’s suing the estate, he’s effectively suing the deceased. Liability will turn on the deceased’s obligations to the officer. It will not raise the question of whether or not the family is responsible for the deceased’s actions.

The story does report that barrister Greg Barnes, from the Australian Lawyers Alliance, says “”We’re looking at the question of whether or not there is any duty-of-care that those relatives owe to the officer” but one has to wonder what he was told about the case. It’s not in the text but in the accompanying video the host says ‘he’s suing the family’ but suing the family is not the same as suing the estate. The question of whether or not the family owe a duty of care will simply not arise if the action is against the estate of the deceased. It appears the journalists, given the way they change between suing the estate and suing the family, were unable or unwilling to make that distinction. My guess is that there is a deliberate attempt to sensationalise the story here. If the action against the deceased’s estate succeeds, then it is his family that misses out as the damages payable to the officer will be paid before the family inherit and it may take up the entire estate. In that sense the family will miss out and one may argue would be held ‘responsible’. And true to form it’s an opportunity to portray the deceased’s elderly pensioner mother as a victim of the unjust legal system and of course all plaintiff’s including this officer, must be greedy or selfish, why else would they go to court – where only greedy and selfish people go (unless of course their fighting shonky tradesmen).

If the action is against the estate of the deceased however the issue is whether the deceased, not his family, owed a duty of care to the rescuers. We are told “The case is believed to be an Australian first” and in the sense it’s a police officer suing the estate of the deceased it may be but in the sense of police suing those that caused the incident that in turn caused their trauma, it’s not. The fact that those that cause an injury to one person owe a duty of care to the rescuers is not at all controversial – it was first decided in Chapman v Hearse in 1961 ((1961) 106 CLR 112, [1961] HCA 46). For other cases involving police suing the original wrong doer for their subsequent, including psychological injuries see in England, Knightley v Johns [1981] EWCA Civ 6; [1982] 1 WLR 349 and Haynes v Harwood [1935] 1 KB 147 and in Australia Hirst v Nominal Defendant (2005) 2 Qd R 133 and the most significant case, as it made its way to the High Court, Sheehan and Wicks v SRA (2010) 241 CLR 60, [2010] HCA 22 (and see my discussion on that case at Rescuers and nervous shock or mental illness; Wicks and Sheehan v SRA). To find that the deceased owed a duty of care to the police officer, and his estate is therefore liable would not be an Australian first or a significant development in the law.

One of the commentators says the officer has to sue as a precondition for getting victims of crime compensation. That claim is not the law at least not the law as set out in the Victims Of Crime Assistance Act 1976 (Tas). That Act says, at s 9 “… the making in respect of any criminal conduct, of an award to a person does not affect the enforcement of any right or remedy that that person may have as a consequence of the criminal conduct”. Accordingly the officer could claim compensation under that Act and still sue the estate. Double compensation is not allowed so if he recovered from the estate he would have to repay the amount received under the Assistance Act but exploring common law rights to sue is not a pre-condition for getting compensation under the Act.

Finally, with respect to the argument that he should not be able to sue as he was just doing his job, that is not the law in Australia. The “firemen’s rule” exists in the United States and limits the rights of professional rescuers to sue those that negligently expose them to danger but it “has no place in English [and arguably, Australian] law” (Ogwo v Taylor [1988] AC 431).

There is no special rule in English law qualifying the obligations of others towards fire fighters, or presumably police officers, ambulance technicians and others whose occupations in the public service are inherently dangerous … Such public servants accept the risks which are inherent in their work, but not the risks which the exercise of reasonable care on the part of those who owe them a duty of care could avoid. (Sussex Ambulance NHS Trust v King [2002] EWCA Civ 953, [21] (Hale LJ))

We can look at this story from a different perspective. This offender killed one man and critically injured his ex-girlfriend. That will have exposed their families and the community to large expenses. Funeral costs, the costs of healthcare, loss of amenity and future earnings that would have contributed, ultimately, to their estate. The fact that this police officer has had an extensive period on workers compensation and may never be able to serve as an operational police officer again. Rather than ask ‘what right does he have to sue the estate’ we should ask ‘why shouldn’t his estate be used to defray the cost of his deliberate and criminal conduct?’ If he’d survived I’m sure there’d be no concern if his victims decided to sue him for their losses. And even if they didn’t sue, the Commissioner overseeing the Tasmanian Victims Compensation scheme could have sought to recover any money paid to the victims from the offender. ‘Today Tonight’ may want to portray the offender’s mother as a hard done by victim but one has to ask why should the deceased’s estate go to her rather than to the victims or the state to recompense for the monies the state will have paid out as a direct result of his actions?

In summary the officer suing the estate of the deceased in a murder suicide may be a first but to say that it represents some novel extension of the law is not correct. That those that cause injury and create the need for rescue owe a duty to the rescuers is well established law in both the UK and Australia. True to form and living up to their reputation, much of what is said by ‘Today Tonight’ is inconsistent, or wrong, or both.

Michael Eburn
22 May 2013