Dowse v New South Wales

The appeal concerned a plaintiff who fell and sustained injuries while being pursued by police officers. The plaintiff alleged negligence and trespass to the person against the police officers and the State of New South Wales. The central dispute revolved around the validity of the arrest, the reasonableness of the police officers' suspicion that the plaintiff had committed an offence, and whether the officers intended to charge the plaintiff. Additionally, the plaintiff had been charged with offensive language, and the context and circumstances of his alleged use of the word "fucking" were in issue. The matter was heard in the Court of Appeal of New South Wales.

The legal issues before the court included whether the police officers' power of arrest under the *Law Enforcement (Powers and Responsibilities) Act 2002* (NSW) was validly engaged, particularly where there was a question about the officers' intention to charge the suspect. The court also had to determine if the officers' suspicion of an offence was reasonable, and whether a common law duty of care was owed by the police officers to the plaintiff, notwithstanding the plaintiff's choice to flee. Furthermore, the court considered whether the plaintiff’s use of the word "fucking" constituted offensive language under the *Summary Offences Act 1988* (NSW), having regard to the relevant circumstances and context. The question of whether the plaintiff feared physical violence for the purposes of an assault claim was also relevant.

The Court of Appeal dismissed the appeal. The court reasoned that the police officers had a reasonable suspicion that the plaintiff had committed an offence, which engaged their powers of arrest under the *Law Enforcement (Powers and Responsibilities) Act 2002* (NSW). The court found that the officers' intention to charge the plaintiff was not a prerequisite for a lawful arrest in these circumstances. Regarding the negligence claim, the court held that no duty of care was owed by the police officers to the plaintiff in the manner alleged, particularly given the plaintiff's voluntary act of fleeing. The court also found that the plaintiff's use of the word "fucking" in the circumstances was offensive language within the meaning of the *Summary Offences Act 1988* (NSW).

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.