This week the Victorian Supreme Court refused an application by the State of Victoria to strike out a claim by Tara Smith and her three children. Smith claims Victoria Police officers were negligent because they failed to prevent numerous breaches of protection orders by her ex-partner, the father of the children. As a result, Smith and the children have suffered ongoing psychological harm.
In refusing to strike out Smith’s claim, the court has accepted that it is arguable police could owe a common law duty of care to specific victims of domestic violence to protect them from preventable harm. This is an important decision, because no Australian case has determined the question of whether police owe a 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. Without a duty of care there can be no liability in negligence, no matter how careless the defendant is.
TC Beirne School of Law's Professor Heather Douglas writes for The Conversation.
