Jausnik v Nominal Defendant (No 5)
[2016] ACTSC 306
•18 October 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Jausnik v Nominal Defendant (No 5) |
Citation: | [2016] ACTSC 306 |
Hearing Dates: | 11, 12, 13, 14, 15 May, 22, 23 September 2015 |
DecisionDate: | 18 October 2016 |
Before: | Mossop AsJ |
Decision: | See [202] |
Catchwords: | TORTS – Negligence – Police involved in pursuit of fleeing vehicle across NSW/ACT border – Failure to comply with police protocols for safe driving and cross-border pursuits – Passenger in police vehicle suffering mental harm arising from attending scene of accident arising from police pursuit – Liability of State of New South Wales for failure to provide training in use of radios and cross-border pursuit protocols – Liability of police driver for injury to passenger CHOICE OF LAW – Statutory contribution between tortfeasors – Accident in the Territory following police pursuit from New South Wales – Claim for contribution by ACT Nominal Defendant against New South Wales police office and State of New South Wales – Characterisation of apportionment legislation – Applicable choice of law rule. TORTS – Causation – Police pursuit of driver cross border – Pursued driver involved in fatal accident – Whether pursued driver would have avoided accident if pursuit terminated earlier – Expert evidence based on aggregate statistics – Whether likely conduct of pursued driver proved on balance of probabilities – Causation not established TORTS – Statutory contribution – Nominal defendant liable for conduct of pursued driver who caused an accident – State of New South Wales and police officer also negligent – Contingent assessment of appropriate contribution |
Legislation Cited: | Australian Federal Police Act 1979 (Cth), ss, s 8(1A), 40E Civil Law (Wrongs) Act 2002 (ACT), ss 19, 21, 32, 34, 42, 43, 44, 45, 46 Workers Compensation Act 1987 (NSW), s 150A |
Cases Cited: | Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 Amaca Pty Ltd v New South Wales [2003] HCA 44; (2003) 77 ALJR 1509 Wicks v State Rail Authority (NSW) [2010] HCA 22; (2010) 241 CLR 60 |
Texts Cited: | Atiyah, P S, An Introduction to the Law of Contract (Oxford University Press, 3rd ed, 1981) Davies, M, A Bell and P Brereton (eds), Nygh’s Conflict of Laws in Australia (LexisNexis Butterworths, 14th ed, 2014) Prosser, W L, “Interstate publication” (1953) 51(7) Michigan Law Review 959 |
Parties: | Edward Robert Jausnik (Plaintiff) The Nominal Defendant (Defendant) Michael Hannaford (First Third Party) State of New South Wales (Second Third Party) |
Representation: | Counsel P J Deakin QC, L P McFee (Defendant) G M Watson, W S Reynolds (First Third Party) J Sheller (Second Third Party) M Rennie (New South Wales Commissioner of Police) |
| Solicitors Minter Ellison (Defendant) Moray & Agnew (First Third Party) HWL Ebsworth (Second Third Party) NSW Crown Solicitor’s Office (New South Wales Commissioner of Police) | |
File Number: | SC 291 of 2012 |
Publication Restriction: | The order of the Court made on 11 May 2015 prohibits publication of contents of the NSW Police Force Safe Driving Policy version 7.2. The version of the judgment published on the internet has been redacted in accordance with that order. |
MOSSOP AsJ:
Introduction
On 20 March 2010 the plaintiff, Mr Edward Jausnik, and the first third party, Mr Michael Hannaford, were New South Wales police officers. They were conducting random breath testing on Richard Avenue in Queanbeyan, New South Wales. While conducting breath testing, they observed, by looking down Richard Avenue, a vehicle driving at speed in a westerly direction across the roundabout at the intersection of Uriarra Road, Richard Avenue and Kendall Avenue. The vehicle was travelling across the roundabout onto Kendall Avenue and continued westward along Kendall Avenue. The officers got into their police vehicle and pursued the vehicle. They turned left at the roundabout into Kendall Avenue and shortly after having turned left into Kendall Avenue observed the tail lights of the vehicle in the distance. The police then continued along Kendall Avenue until the traffic lights at the intersection of Kendall Avenue and Canberra Avenue. Up until this point the police had not activated the vehicle’s siren or flashing lights.
The vehicle that was being pursued was a silver Mazda being driven by Mr Justin Williams. It pulled up at the traffic lights at the intersection of Kendall Avenue and Canberra Avenue and the police vehicle pulled up behind it. Mr Hannaford activated the police vehicle’s lights. As a result of this occurring the silver Mazda took off, turning right through the red lights onto Canberra Avenue and proceeding in a north-westerly direction across the border between New South Wales and the Australian Capital Territory (ACT). Mr Hannaford activated his vehicle’s siren and followed. The silver Mazda proceeded through traffic lights at the entrance to HMAS Harman as well as traffic lights near the intersection between Canberra Avenue and Tom Price Street. The police officers continued to pursue the silver Mazda in their vehicle. They estimated that when outside HMAS Harman they were travelling at approximately 140 to 150 km/h.
The silver Mazda was detected doing a speed of 157 km/h by a fixed speed camera located a short distance to the south-east of the intersection of Canberra Avenue and Hindmarsh Drive. The pursuing police vehicle was detected travelling at 150 km/h. The pursuit continued through the intersection with Hindmarsh Drive, the silver Mazda travelling north-east along Canberra Avenue down the hill towards the intersection with Ipswich Street and the Monaro Highway.
There were two sets of traffic lights at the intersection where Canberra Avenue passes under the Monaro Highway. The first set of traffic lights was at the intersection between Canberra Avenue and Ipswich Street, on the Queanbeyan side of the underpass. The second set of traffic lights was on the Canberra side of the underpass. That second set of traffic lights regulated cars travelling north down the exit ramp from the Monaro Highway. Where the exit ramp met Canberra Avenue the traffic lights permitted cars to either turn left and head towards Canberra or right and head towards Queanbeyan and Fyshwick. As the silver Mazda travelled at high speed under the overpass, a vehicle driven by Mr Scott Oppelaar was turning right from the exit ramp onto Canberra Avenue. Mr Oppelaar’s vehicle was facing a green light. The silver Mazda faced a red light. The silver Mazda continued through the red light and collided at high speed with Mr Oppelaar’s vehicle. The result of the collision was catastrophic. Mr Oppelaar’s vehicle was struck on the right side by the silver Mazda and broke in two. Mr Oppelaar, his partner, Samantha Ford, and their infant son, Brodie Oppelaar, were all killed as a result of the impact. The driver of the silver Mazda, Mr Williams, was trapped in his vehicle. He was removed from the vehicle, but died later at Canberra Hospital. His passenger, Skye Webbe, was conveyed to hospital in a critical condition, but survived.
A blood sample from Mr Williams taken within two hours of the accident showed a blood alcohol concentration of 0.154%. Mr Williams’ level of intoxication was not known to police at the time of the pursuit.
The proceedings
The silver Mazda driven by Mr Williams was unregistered. Because it was unregistered it did not have compulsory third party insurance required by the Road Transport (Third-Party Insurance) Act 2008 (ACT) (RTTPI Act). Because of these circumstances, Mr Jausnik brought proceedings against the Nominal Defendant established under that Act. Under s 59 of the RTTPI Act the Nominal Defendant is liable as if a compulsory third party (CTP) insurance policy was in force for the motor vehicle and the Nominal Defendant was the CTP insurer. As a consequence the Nominal Defendant is in the position of an insurer against whom proceedings may be brought and judgment entered based on its obligation to indemnify Mr Williams against liability for personal injury caused by a motor accident: RTTPI Act ss 20-21, 151.
These proceedings were commenced on 11 October 2012. The claim against the Nominal Defendant pleaded, relevantly:
Justin Charles Williams, while driving an unregistered motor vehicle, was attempting to evade apprehension by the plaintiff, a New South Wales police officer who was in a police vehicle pursuing him. In so attempting to evade apprehension Justin Charles Williams drove his vehicle in an unlawful, dangerous and negligent manner and at an unlawful and excessively high speed and failed to obey traffic signals and collided with a third vehicle. The plaintiff attempted to render first aid to the occupants of all vehicles and in doing so sustained psychiatric injury.
The psychiatric injury identified was chronic post-traumatic stress disorder and major depression. The report of Dr Michael Barry, a clinical psychologist, in 2011 demonstrated that the plaintiff suffered from chronic post traumatic stress disorder and a major depressive disorder.
The Nominal Defendant filed a defence which involved general denials and a pleading of contributory negligence. The particulars of contributory negligence were:
(a) failing to stop the pursuit when it was apparent that the plaintiff was seeking to “out-run” the police vehicle;
(b) continuing the pursuit when it was apparent that by doing so he and his fellow officer were placing others, including himself, in danger and at risk of injury;
(c) failing to comply with protocols for cross-border pursuits;
(d) failing to adequately or at all consider the risk from pursuing Williams’ vehicle at excessive speed upon the health and safety of persons including himself from, or as a consequence of, a collision involving Williams’ vehicle.
On 22 November 2012 the Nominal Defendant filed a third-party notice. That notice was directed to Mr Hannaford, the driver of the police vehicle in which Mr Jausnik was travelling, and the State of New South Wales. That notice alleged negligence on the part of Mr Hannaford as follows:
(i) continuing the pursuit of Williams’ vehicle when Williams commenced driving at an excessive speed in all the circumstances;
(ii) continuing the pursuit of Williams’ vehicle when it became, or ought to have become, apparent that Williams was seeking to “out-run” the first third party’s vehicle in circumstances where he knew, or ought reasonably to have known, that the pursuit exposed other persons, including the plaintiff, to risk of injury;
(iii) failing to comply with or heed the request and/or instruction of the plaintiff to terminate the pursuit;
(iv) continuing with the pursuit contrary to the advice of the plaintiff that the pursuit was unsafe;
(v) failing to comply with protocols for cross-border pursuits;
(vi) failing to terminate the pursuit when it was, or ought to have been, apparent that the risk of a collision was in all the circumstances foreseeably placing other persons, including the plaintiff, to risk of injury;
(vii) failing to adequately or at all consider the risk from pursuing Williams’ vehicle at excessive speed upon the safety of other persons, including the plaintiff, from, or as a consequence of, a collision involving Williams’ vehicle; and
(viii) failing to accept that the risk of injury outweighed the need to continue the pursuit.
It should be noted that there is no allegation that the commencement of the pursuit was in breach of Mr Hannaford’s duty.
The claim against the State of New South Wales (the State) alleged that a new radio system had been installed in the police vehicle used by Mr Jausnik and Mr Hannaford and that no adequate steps were taken to ensure that officers on duty had an understanding of the new radio system or how to use it. It further alleged that the State had not provided any training or adequate instruction on cross-jurisdictional pursuits. The negligence claim made against the State was particularised as follows:
(i) failing to provide and/or ensure that its police officers, the first third party and the plaintiff, had proper guidance, instruction and training concerning the conduct of pursuits of other vehicles, including the termination of pursuits;
(ii) failing to provide and/or ensure that the equipment provided to its officers for use in the course of their duties could be properly operated by the first third party and the plaintiff;
(iii) failing to instruct the first third party and the plaintiff to terminate the pursuit when the risk of harm to persons was, or ought reasonably to have been, apparent;
(iv) failing to instruct the first third party and the plaintiff that the pursuit of vehicles being driven at dangerous speeds, and/or in a dangerous manner, and/or in such a way that persons were at risk of harm should be terminated;
(v) failing to instruct the first third party that if in the course of a pursuit, if his fellow officer expressed the reasonable opinion or request that the pursuit should be terminated, that he should comply with that opinion or request;
(vi) failing to instruct the first third party that he should in the conduct of his duties take reasonable care for the safety of or avoid the risk of harm to others; and
(vii) failing to ensure that the first third party and the plaintiff were at all relevant times able to obtain instructions and guidance as to the performance of their duties from a person competent to do so.
On 9 July 2013 consent orders were entered for judgment in favour of Mr Jausnik against the Nominal Defendant in the sum of $1,225,000 plus $75,000 in costs. Mr Hannaford and the State were aware of the settlement, but did not themselves consent to it.
Mr Hannaford filed a defence to the third-party notice on 3 October 2013. That defence involved general denials as well as a particularised claim of contributory negligence. The State filed a defence on 8 October 2013. That defence made no significant admissions. It did not plead contributory negligence.
The claims for contribution identified in the third party notice are based upon either s 21 of the Civil Law (Wrongs) Act 2002 (ACT) (CLW Act) or s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (LRMP Act). Those sections permit a person who is liable for damage caused by a tort to recover contribution from someone else liable for the same damage. The precise terms of these provisions, and which of the two is applicable, will be discussed below. The significant point is that it is necessary for the person claiming contribution to establish that he, she or it is liable in tort to the plaintiff and that the contributory is also liable to the plaintiff for the same damage. In the context of this case, that means that in order to succeed the Nominal Defendant must prove that:
(a)it was liable to the plaintiff; and
(b)each of the third parties was also liable to the plaintiff.
Chronology of the pursuit
Mr Hannaford had been a New South Wales police officer since 2007. In 2010 he held the rank of Constable. Mr Jausnik had been a New South Wales police officer since 2008. He held the rank of Constable. Both were also special members of the Australian Federal Police (AFP) appointed under s 40E of the Australian Federal Police Act 1979 (Cth) (AFP Act).
On 20 March 2010, Mr Hannaford and Mr Jausnik were on patrol in a standard police vehicle which was identified as “Queanbeyan 37”. I will refer to their vehicle as Queanbeyan 37.
At about 10 pm the officers were conducting a breathalyser stop at Richard Avenue, Queanbeyan, near the intersection with Ernest Street. They were stopped approximately 100 m from the roundabout intersection of Kendall Avenue, Richard Avenue and Uriarra Road. They had stopped a vehicle which had left the Queanbeyan Kangaroos Rugby Club, located just up the road, and performed a random breath test on that driver. The breathalyser result was negative.
The officers observed a silver Mazda, Mr Williams’ vehicle, drive through the roundabout intersection of Uriarra Road, Kendall Avenue and Richard Avenue. The vehicle came to their attention because of the noise of the engine and the screech of tyres as it went through the roundabout. It was driving at speed. The silver Mazda drove westward from Uriarra Road onto Kendall Avenue.
Mr Hannaford and Mr Jausnik got into their vehicle and followed Mr Williams' vehicle onto Kendall Avenue. Mr Hannaford was driving and Mr Jausnik was the front seat passenger.
Shortly after Queanbeyan 37 turned left onto Kendall Avenue (50 to 80 m south of the roundabout intersection of Uriarra Road, Kendall Avenue and Richard Avenue), the silver Mazda was at the bend on Kendall Avenue heading towards the intersection with Canberra Avenue.
At this point Queanbeyan 37 was travelling between 90 and 130 km/hr on Kendall Avenue to catch up to the silver Mazda. The speed limit on Kendall Avenue was 50 km/hr. Queanbeyan 37 had no flashing lights or siren activated at this point.
Queanbeyan 37 was at approximately the Stephens Road and Kendall Avenue T‑intersection when the officers observed the silver Mazda slowing and approaching the traffic light controlled intersection of Kendall Avenue and Canberra Avenue. The silver Mazda stopped at the red traffic light at the intersection.
Queanbeyan 37 pulled up behind the stationary silver Mazda and Mr Hannaford activated the vehicle’s light bar.
Having been alerted to the presence of the police vehicle behind him, Mr Williams proceeded into the traffic light controlled intersection of Kendall Avenue and Canberra Avenue against a red traffic light, turning right onto Canberra Avenue. Queanbeyan 37 followed. A car travelling through the intersection was forced to “slam on its brakes” to avoid a collision with the silver Mazda.
Mr Hannaford followed the silver Mazda through the intersection. As he did so he turned on the vehicle’s siren. He was aware that making the right-hand turn from Kendall Avenue onto Canberra Avenue would lead the pursuit into the ACT. He called out the numberplate of the silver Mazda to Mr Jausnik. Mr Hannaford told Mr Jausnik to “call in the pursuit” and Mr Jausnik made contact with the NSW Police Force radio (NSW Police radio) for the first time during the course of the pursuit. The communication by Mr Jausnik was “Queanbeyan 37, urgent in pursuit”.
The ACT border was approximately 50 m from the Kendall Avenue and Canberra Avenue intersection and is 4.685 km from the collision site. Therefore, the total length of the pursuit was approximately 4.735 km. (A vehicle travelling at 150 km/h would travel that distance in 114 seconds, just under two minutes. At an average speed of 130km/h, the distance would be travelled in 131 seconds, just over two minutes.)
Less than 100 m into the ACT, just past the point where Canberra Avenue passes over Norse Road, there was an ACT speed limit sign indicating a speed limit of 80 km/h. When it passed that point, Queanbeyan 37 was travelling between 110 and 130 km/hr.
The road was a divided road which, from near the border to the intersection with Hindmarsh Drive, travelled through a semi-rural landscape. There were two lanes in each direction. There was not much traffic on the road and driving conditions were good.
Approximately 300 to 400 m past the Kendall Avenue and Canberra Avenue intersection, the NSW Police radio acknowledged and responded to Mr Jausnik’s call.
Fourteen seconds after first notifying the NSW Police radio that they were in pursuit, Mr Jausnik said he was changing to the AFP channel. He was asked for his vehicle classification and, 34 seconds after first notifying the NSW Police radio of the pursuit, said again that he was changing to the AFP channel.
Queanbeyan 37 passed through the intersection at HMAS Harman approximately 800 m from the ACT/NSW border and was travelling at 140 to 150 km/h as it passed the rock wall to the west of that intersection.
Between HMAS Harman and the intersection of Canberra Avenue and Tom Price Street, Canberra Avenue goes over a rise approximately 1400 m from the New South Wales border.
Prior to reaching that rise Queanbeyan 37 was on the NSW Police radio requesting details of the AFP channel. This was one minute and 10 seconds after first calling in the pursuit. Ten seconds later another NSW Police Force vehicle, Queanbeyan 35, responded to this request identifying the AFP channel as zone 3 channel 73. This information was, in fact, incorrect as it related to old zone and channel numbers rather than new ones. I will return to this issue below. A few seconds later Mr Jausnik made another request “what’s the new radio channel?” and an unidentified patrol vehicle is identified in the transcript of the NSW Police radio as responding “… (indistinct)… along 45”. The audio of this is consistent with it being a further transmission from Mr Jausnik saying “Somewhere along 45”. After that point there was no communication from Queanbeyan 37 on the NSW Police radio channel until it reported being at the scene of the accident.
At about the rise on Canberra Avenue, Mr Jausnik hit the buttons “45#” on his car radio. At this point the vehicle was approximately 1400 m from the ACT/NSW border and 3285 m from the collision site. At this point Mr Hannaford could still see the tail lights of the silver Mazda and estimated that the police vehicle was travelling at around 150 km/h.
There was no response on channel 45 from the AFP. Because of this, prior to reaching the intersection between Canberra Avenue and Hindmarsh Drive, Mr Jausnik saw Mr Hannaford trying to get at is portable radio and so he too reached for his portable radio. He did this because this radio still used the old zone and channel numbers and he knew how to get the AFP channel on this radio.
The intersection of Canberra Avenue with Hindmarsh Drive is approximately 3 km from the New South Wales border and 1.685 km from the site of the accident. Red light cameras measured the silver Mazda passing through that intersection at 157 km/h and, 1.73 seconds later, Queanbeyan 37 at a speed of 150 km/h.
The traffic light controlling the intersection of Hindmarsh Drive and Canberra Avenue had been red for 1.64 seconds when the silver Mazda entered the intersection. The traffic light controlling the intersection of Hindmarsh Drive and Canberra Avenue had been red for 3.37 seconds when Queanbeyan 37 entered the intersection. The gap between the silver Mazda and Queanbeyan 37 was approximately 75 m.
As the silver Mazda and Queanbeyan 37 entered the intersection of Hindmarsh Drive and Canberra Avenue against the red light, there were other vehicles waiting to enter the intersection from Hindmarsh Drive.
Queanbeyan 37 continued to pursue the silver Mazda down the hill towards the intersection with the Monaro Highway. When in the vicinity of the intersection between Canberra Avenue and Whyalla Street, Mr Jausnik managed to communicate on his portable radio with the AFP. He reported “Queanbeyan 37, urgent in pursuit in ACT”. This was the first radio contact that Queanbeyan 37 had with the AFP during the course of the pursuit. The response from the AFP operator was that he was on an enquiry channel and he was asked for his location. The reference to being on the enquiry channel was to indicate that the communication was made on the incorrect channel because that was a channel for dealing with longer enquiries rather than operational communications. Mr Jausnik then started to attempt to change to the correct radio channel.
About 300 m prior to the intersection between Ipswich Street and Canberra Avenue, as Queanbeyan 37 was passing the Canberra South Motor Park, Mr Hannaford took his foot off the accelerator after he saw that the silver Mazda had gone through the intersection of Ipswich Street and Canberra Avenue against the red lights. Even though Mr Jausnik was looking down, he felt the car slowing.
Nine seconds after the conclusion of the first transmission to the AFP, somebody giving an exclamation transcribed as “Oh, Oh” can be heard in the background before Mr Jausnik reports “current location Canberra Avenue”. Mr Jausnik looked up and saw the debris from the collision and what he thought was a spinning vehicle. The operator was in the process of being told that he needed to go to secure channel number 72 when Mr Jausnik reported the collision.
The silver Mazda travelled at high speed through the intersection between Canberra Avenue and Ipswich Street against a red light. Mr Colin Hill who was turning right from Ipswich Street into Canberra Avenue in order to travel towards Manuka was just about to enter the Manuka bound side of the carriageway when the silver Mazda passed at high speed. He said it was travelling “very fast”. He then heard the sound of the siren coming from his left and saw a white marked police vehicle approaching which was also travelling “quite fast”. It also crossed against the red lights and passed in front of him. He estimated the speed of the police vehicle at around 120 km/h. At about the same time he heard the impact caused by the collision. Queanbeyan 37 still had its lights and sirens on when it passed through the intersection.
Nineteen seconds after first contacting the AFP, Mr Jausnik reported the collision to the AFP. This was seven seconds after the “Oh, Oh” is heard on the audio. At some stage later a report of the accident was made on the NSW Police radio. It appears to be some time after the report to the AFP because by the time of the report on the NSW Police radio the officer was aware of two fatalities as a result of the accident. The report was: “We’ve got a very major accident here. We’ve got two - two deceased.” This report was approximately three and half minutes after the pursuit was first “called in” on the NSW Police radio and two minutes since the last communication on the NSW Police radio.
When the officers reached the accident they found a dark blue Mazda which had been split in two by the accident and two people who appeared to be dead. There were people yelling and gathering around the car. There was screaming coming from the silver Mazda which the officers had been pursuing. The driver (Mr Williams) was stuck in the vehicle and a bystander reported that the passenger (Ms Webbe) still had a pulse. Mr Jausnik yelled to Mr Hannaford to get some help. Mr Jausnik subsequently set about getting the baby that was travelling in the blue Mazda out of the vehicle. The baby was dead.
Both Mr Williams and Ms Webbe were taken to the Canberra Hospital. Mr Williams later died of his injuries. While being conveyed to the Canberra Hospital by ambulance officers, Mr Williams was abusive and aggressive towards them. He was required to be restrained while in the ambulance.
Following the accident a police investigation took place. That included, on 22 March 2010, both Mr Jausnik and Mr Hannaford participating (separately) in a drive-through of the route over which the pursuit occurred, answering questions in relation to what occurred at each point along that route. This process recorded the contemporaneous recollection of each officer as to what had occurred during the pursuit.
The report of Dr Maurice O’Dell, a Senior Forensic Physician at the Victorian Institute of Forensic Medicine, dated 13 May 2015 (Exhibit 13) identified that Mr Williams had a blood alcohol concentration of 0.154% measured in his blood taken within two hours of the collision. In the period between the collision and the taking of the blood sample, his blood alcohol concentration may have altered in either direction depending upon various identified factors. Dr O’Dell stated the following conclusion in relation to Mr Williams’ driving ability:
Mr Williams’ ability to have proper control of a motor vehicle would have been seriously degraded to the point of non-existence at a [blood alcohol concentration] of 0.154%. His risk [of] being involved in a collision would be increased by between 10 and 100 times compared to the non-intoxicated state.
The change in police radios
At some time after 15 February 2010 and prior to the pursuit on 20 March 2010, New South Wales police vehicles in the Monaro Local Area Command were fitted with “Simoco” brand radios. Police radios both before and after the change required a user to identify both a zone number and a channel number to communicate on a particular police channel. The change in radios led to a change in the zone and channel numbers for the AFP. On 15 February 2010 a sergeant, who appears to have had some responsibility in relation to the implementation of the change, sent an email to police officers containing instructions on how to change channels and zones on the new radios. That email included notice that the AFP was no longer in zone 3, but instead had changed to zone 5. Similarly, it provided the new channel numbers for the AFP including channel numbers for “North Canberra”, “South Canberra” and an “Enquiry” channel.
On 16 March 2010 the same officer circulated a further email attaching a channel list relevant to the Monaro Local Area Command. The email requested that the channel list be printed out and placed in each police vehicle. This included the zone and channel numbers for the AFP on both Simoco radios (new zone and channel numbers) and the Motorola radios which they replaced (old zone and channel numbers). The hand-held radios carried by officers continued to use the old zone and channel numbers. It is for this reason that Mr Jausnik and Mr Hannaford sought to use their personal radios during the pursuit after Mr Jausnik was unable to make contact with the AFP on the vehicle’s new Simoco radio. It is apparent that no such channel list had been printed out and placed in Queanbeyan 37. Mr Hannaford said in an answer to an interrogatory that he had read this email and made a “visual note” of it. He did not receive any further training beyond the provision of the email. Mr Jausnik said that he had read the email, pasted the section with the AFP channels into a word processing document and put it in his notebook. Prior to this incident Mr Jausnik had never had to change over to the AFP channels on the new radios. Neither Mr Jausnik nor Mr Hannaford had received any training other than what was contained in the emails in relation to the change in the radios prior to 20 March 2010.
In order to establish contact with the AFP from New South Wales both the channel and zone were required to be changed. To change the channel officers were required to enter the number of the channel and then press hash (#). To change the zone the officers were required to press “okay” and then use the up/down arrows on the radio to scroll to the correct zone. The relevant New South Wales police channels were in zone 1. In order to communicate with the North Canberra section of the AFP the old radios communicated via zone 3 channel 71, while the new radios communicated via zone 5 channel 45.
At the commencement of the pursuit Mr Jausnik was trying to find the piece of paper in his notebook which set out the AFP channels for the new radio. On the NSW Police radio he requested the AFP channel. Another police vehicle, Queanbeyan 35, responded saying that the AFP channel was zone 3 channel 73. That was clearly information relevant to the old, rather than the new, vehicle radios. Mr Jausnik then asked on the radio again for the new radio channel and the audio is consistent with Mr Jausnik referring to channel 45. While channel 45 was the correct channel using the Simoco radio, Mr Jausnik did not change the zone on the radio from zone 1 to zone 5. He was not aware that both the zone and the channel had to be changed on the new radios. As a consequence he was unable to effectively communicate with the AFP and only managed to contact them when he used his personal radio on the old channels. That only occurred after the Hindmarsh Drive intersection with Canberra Avenue as Queanbeyan 37 was travelling down towards the collision site.
Police pursuit policies
As at the date of the accident, the AFP had published a document entitled “AFP National Guideline: ACT Policing: Urgent duty driving and pursuits” (AFP National Guideline). The document took effect from 7 December 2007. The NSW Police Force had also published a Safe Driving Policy in November 2009 (NSW SDP). The contents of the NSW SDP were the subject of an order under s 111(2) of the Evidence (Miscellaneous Provisions) Act 1992 (ACT) prohibiting their publication. As a consequence, redactions will be made of these reasons prior to publication on the internet.
Both documents were relied upon in general terms in the particulars of negligence pleaded by the Nominal Defendant. The Nominal Defendant relied upon both of these documents as documents which, on their terms, applied to the circumstances of the pursuit on 20 March 2010 and were relevant to an assessment of whether Mr Hannaford or the State breached a duty of care owed to Mr Jausnik.
Extracts of those documents to which specific reference was made in submissions are set out in an appendix to these reasons. The key points made by the AFP National Guideline relevant to the circumstances of the present case are:
(a)“The sworn duty of a police officer to protect life and property will always have primacy over the need to apprehend offenders, especially when the offence involved is relatively minor, or where there are safer options other than immediate apprehension”: paragraph 6.
(b)“The primary responsibility for the initiation and conduct of a pursuit rests with the member driving the police vehicle”: paragraph 19.b
(c)The driver is obliged to “drive in a manner that prioritises the safety of the police and public”: paragraph 19.b.i.
(d)Prior to commencing, as well as during a pursuit, members must assess and continue to reassess the risk to “members of the public, themselves and those persons in the suspect vehicle”: paragraph 21.h. That exercise includes considering the danger posed by the suspect vehicle, the nature and comparative seriousness of the offence and whether there are other reasonable means available for police to identify or apprehend the relevant people.
(e)A pursuit must be terminated when the value of apprehending an offender is outweighed by any one of: “the real or potential danger to police, members of the public or people in the suspect vehicle” having regard to the various factors including the volume of traffic, the nature and comparative seriousness of the offence and the speed of the subject vehicle: paragraph 24.
(f)Where there are cross-border pursuits, New South Wales police vehicles engaged in a pursuit into the ACT are expected to comply with the same requirements as an AFP vehicle entering New South Wales: paragraph 26(f),(g). Members must also comply with the pursuit driving policy of the jurisdiction being entered: paragraph 26(i). That requires the police vehicle to seek permission to continue the pursuit into the other jurisdiction until the other jurisdiction can resume or terminate the pursuit: paragraph 26(a). If that permission cannot be obtained or permission to continue the pursuit is declined then it must be terminated prior to entering the other State or Territory or, in any case, immediately upon receipt of notification to terminate: paragraph 26(c).
As will be apparent, the terms of the AFP National Guideline are, and are clearly intended to be, quite restrictive. An emphasis is placed upon ensuring safety over pursuit of offenders and there are additional significant restrictions on conducting pursuits across a State or Territory border. Plainly enough, having regard to the community policing role of the AFP in the Territory, so far as the AFP is concerned the New South Wales/ACT border is likely to be the principal State or Territory border to which the statements in the AFP National Guideline applies.
[Redacted]
[Redacted]
A statement of Superintendent Gary Merryweather, Commander of the Monaro Local Area Command, dated 10 September 2010 provided:
Prior to this incident occurring there was no formal training within the command in relation to interstate pursuit guidelines with the ACT as this was considered to be an on-the-job training process. The process although informal was [effective] as all officers were aware that if they were to engage in a pursuit that travelled into the ACT that they must notify ACT Police Communications.
Testimony to this was that since I took Command in September 2008 there were numerous pursuits that had crossed over into the ACT and on all occasions ACT Communications were notified. In the incident on the 20 March 2010 the officers involved were also in the process of changing channels to ACT Police Communications.
…
Prior to me commencing duties at the Monaro LAC I am not aware of any formal training being provided to police attached to the Command relating to the AFP pursuit guidelines.
Since the incident on the 20 March 2010 the Monaro Command as reviewed the Command induction package for new offices and now has incorporated a component relating to interstate pursuit guidelines.
This statement is consistent with the evidence of Mr Hannaford.
It is apparent that the Mr Hannaford had only a limited understanding of the requirements of the AFP National Guideline and NSW SDP. He initially denied that he was aware that he needed permission to enter the ACT, but later said that he could not recall. He had no recollection of understanding that he was bound by the AFP National Guidelines. He agreed with the proposition that he was intending to pursue Mr Williams’ vehicle no matter what speed he was travelling at. He did understand that the loss of radio contact was itself a reason for terminating the pursuit.
Mr Jausnik’s understanding of the obligations when conducting a pursuit was also relatively limited. It was to adhere to the safe driver policies and that the general consideration when in pursuit was that “safety of all persons would be number one”. Mr Jausnik’s understanding of the requirement of the safe driver policy was [redacted].
So far as the evidence discloses neither had any current knowledge of the obligation to terminate a pursuit if contact could not be made with the AFP or the need for the driver to continually reassess whether it was appropriate to continue the pursuit.
Expert evidence
Both parties obtained expert evidence going, inter alia, to the issue of whether, if the pursuit had been terminated at an earlier time, Mr Williams would have altered his driving behaviour so that the accident did not occur. The Nominal Defendant relied upon the expert evidence of Prof Jeffrey Alpert and Mr Peter Hosking. The first third party relied upon the evidence of Prof Michael Lyman.
Professor Alpert
Prof Alpert is Professor of Criminology and Criminal Justice at the University of South Carolina. He prepared reports dated 30 October 2014 and 27 April 2015 and gave oral evidence. After reciting the factual background he provided some general observations in relation to pursuit principles and best practice. He then expressed “Conclusions and Opinions”. They included the following:
(a)When suspects flee from police, the suspects are likely to continue running as long as police continue chasing.
(b)In most cases suspects terminate their flight when the police terminate their active attempts to apprehend by turning off their emergency equipment and showing the fleeing suspects that they are safe from the police.
(c)Police should terminate their pursuits when the need to immediately apprehend the suspect is outweighed by the risk of the chase.
(d)Police officers should be trained in the decision-making process of when to drive in an emergency and how to evaluate risks versus benefits of emergency and pursuit driving.
(e)Upon Mr Williams travelling through the red lights at Kendall Avenue the police should have begun an assessment of risk and benefit of continuing a pursuit. They should have realised that the need to apprehend the suspect was for minor traffic offences.
(f)“Although it would have been appropriate to terminate the pursuit shortly after it began due to the low need to apprehend and the high and increasing risk of the pursuit, it would have been reasonable to continue the pursuit for a short period and hope the driver, Mr Williams, would stop.”
(g)“A continued pursuit was reasonable until Mr Williams drove through the HMAS Harman and Canberra Avenue intersection, and the crest of a hill, 1.4 km into the pursuit. At that point the officers should have realised that Mr Williams was not likely to terminate his flight while being chased and that a continued chase was unreasonably risky compared to the likelihood of a successful apprehension of Mr Williams, a traffic offender.”
The important conclusion which he reached was:
Had the pursuit been terminated as it passed the HMAS Harman and Canberra Avenue intersection, it is more likely than not that Mr Williams would have felt safe and slowed down within approximately two-three km and the collision would not have occurred. Research on pursuit drivers in the United States indicates that they feel safe and slow down after the police terminate the pursuit and do so in a relatively short period of time.
In support of this conclusion he annexed two research articles to which I will return below. His conclusion was:
The pursuit was a proximate cause of the collision and had the pursuit been terminated at the HMAS Harman and Canberra Avenue intersection where the hill crests (1.4 km into the pursuit), it is more likely than not that the collision would not have occurred.
Prof Alpert prepared a supplementary report dated 27 April 2015 in reply to the report of Prof Lyman.
In cross-examination he was asked about various characteristics of Mr Williams which were not specifically taken into account in expressing his opinion as to what would have occurred. They were the fact that Mr Williams was an unlicensed driver, was driving a stolen car, was on bail and had bail conditions, had a high blood-alcohol level, had a criminal record, was posting Facebook entries hostile to the police and had an earlier accident when travelling on 160 km/h. (Only the blood-alcohol level was established by the evidence.) Prof Alpert said:
We know from the aggregate statistics what the likely behaviour of people who flee from the police is. I cannot tell you what he would have done under any condition.
It was clear that Prof Alpert’s opinion relied upon the application of aggregate statistics to the circumstances of Mr Williams. He said:
There is no way we would know what Mr Williams would do individually so what we can do is go to an aggregate analysis of the data which we have done and that leads the conclusion to be that it is more likely than not he would fit into that aggregate for people who fled from the police in what they report.
One of the studies relied upon by Prof Alpert used three questions to identify suspects “more willing to take extreme risks than others to escape police”. He was asked in cross-examination how those questions would have been answered by Mr Williams. He said: “Well, that would be an inferential nightmare that I couldn’t do and no one can do that.”
Mr Hosking
Mr Hosking was a former Queensland police officer who at the time of his report was a Ph.D. candidate in the Griffith University School of Criminology and Criminal Justice. He prepared two reports, the first dated 5 November 2014, the second dated 27 April 2015. He was requested to comment on Prof Alpert’s report, in particular, the extent to which the opinions expressed were applicable to Australia. He expressed the opinion that the conclusions in the report were generally applicable to Australia and expressed opinions generally consistent with Prof Alpert. He was not aware of any empirical research conducted in Australia to complement the research referred to in Prof Alpert’s report. He expressed opinions on the adequacy of training provided in relation to police pursuits and on the change in radio systems. He was not required for cross-examination.
Professor Lyman
Prof Lyman is a professor in the Department of Criminal Justice and Human Services at Columbia College, Missouri. He prepared two reports dated 25 March 2015 and 5 May 2015. In his first report he identified the relevant standards to be adopted by a pursuing police officer as follows: “Should the officer make the decision to pursue, they must do so with the utmost care while practising safe and prudent driving.”
He made some observations about the adequacy of the training in relation to the newly installed radios and the radio communications during the pursuit. He appeared to express the opinion that the AFP National Guideline was complied with. He concluded:
The considerable amount of scrutiny given to this pursuit and the consensus that the pursuit was justified shows that at least in Australia, the National Guideline includes [no mandate for early termination of the pursuit]. In fact, there was no policy in place at the time of this pursuit consistent with Dr Alpert’s or Dr Hosking’s arguments that Hannaford should have terminated the pursuit. Instead, the policies that were in place at the time addressing his operation of the police vehicle were properly observed. Thus any criticism of Hannaford for not terminating the pursuit is unwarranted. So considering what Hannaford knew at the time of the pursuit, and under the circumstances he was faced with at the time, his operations of the New South Wales vehicle was proper, professional and consistent with applicable policies, legislation and the National Guideline.
The research articles
The study of which Prof Alpert was a joint author was titled “High-speed pursuit: The offender’s perspective” (1998) 25(1) Criminal Justice and Behaviour 30-45. It was based upon interviews conducted with prisoners who had fled from police in a vehicle within the year before the date of the interview. They were interviewed as to why they fled from police and were permitted to provide more than one reason. The reasons provided included driving a stolen car, driving with a suspended drivers licence, running from a crime scene or to avoid arrest, driving under the influence of drugs or alcohol or being afraid of being beaten by the police. The critical portion of the article for present purposes recorded what the interviewees said about what they would have done if they were not being chased aggressively by the police. The article provides:
In this situation, an aggressive chase was defined as one that involved high risks and evasive manoeuvres. When asked what it would have taken for them to slow down, about 75% said they would have done so only when they felt safe. The suspects reported, on average, that to feel safe, they had to be free from the police show of authority by emergency lights or siren for approximately 2 blocks (2.2) in town, between 2 and 2.5 miles on the highway (2.3 miles), and 2.5 miles on a freeway.
Questions were asked as part of a study in order to identify high risk subjects including the question “were you willing to run at all costs?”.
In its application to the present circumstances the article was used to support the proposition that 75% of persons being pursued by police would slow down within 3.2 to 4 km on a highway (this equates to 2 to 2.5 miles referred to in the study). The site of the collision was 4.685 km from the border which in turn was 50 m from the Kendall Avenue intersection. As a consequence the Nominal Defendant submitted that it was more likely than not that, had the pursuit been terminated at the entrance to HMAS Harman and prior to the crest of the hill on Canberra Avenue (3.2 to 3.9 km from the site of the accident), Mr Williams would have slowed down prior to the collision occurring and hence that the collision would not have occurred.
Arising out of the terms of the study, Prof Alpert was asked about the identified motivations of the people the subject of the study. The motivations listed in the study are referred to above (at [75]). He was asked questions going to whether or not, based on the study, Mr Williams would have fallen into the 75% that would slow down or the 25% that would not slow down:
A matter, ultimately, that I suppose would be a matter for the court but the court may well infer that if Mr Williams had been the subject of this questionnaire he might have ticked four or five of these items?---He might have, yes, sir.
And that would put him in a very small minority of the cohort. Correct?---Yes, sir.
And that would be indicative of him being an extreme example of a fleeing driver within the cohort. Do you agree with that?---It could, yes, sir.
So, if we then go to page 38 of the report, which is 255. When we talk about the 75 per cent of people who would have slowed down if there had been an ostensible ceasing of the pursuit; that is, not only police pulling over but also lights off et cetera?---Yes, sir.
That obviously, the 75 per cent, factors in the whole of the cohort? Correct?---Yes, sir.
And does that permit us to conclude that 25 per cent would do something different?---Yes, sir. We gave them categories to answer and 75 per cent said they would slow down within the prescribed limits that we talked about and the other 25 would do something else, yes.
Given your agreement with my proposition earlier that Mr Williams could be described as someone who's an extreme case within the cohort, do you accept that that makes it more likely than not that he would be outside the 75 per cent of people who would stop?---I can't do that. I can't make that assumption. I mean he could be or he could not.
The other paper that was annexed to Prof Alpert’s report was a paper presented to the Annual Meeting of the International Association of Chiefs of Police in October 2014. It related to the use of a tracking technology known as “StarChase” which permitted vehicles which were fleeing from police to be tagged and tracked by a GPS unit. The paper was only of marginal relevance to the circumstances of the present case. Because of the data acquired during GPS tracking of vehicles it was possible to measure the time from deployment of the GPS tag until the vehicle returned to within 10 mph of the posted speed limit. The paper described a number of case studies in which the period from deployment of the GPS to being within 10 mph of the posted speed limit was measured. Only very limited use could be made of this information because of the variety of circumstances in which the device was deployed. No general conclusions as to the period during which a fleeing vehicle would continue to flee after a pursuit was terminated were identified or could be drawn from the data in the report.
Issues
In order to determine the outcome of the present case it is necessary to address the following issues:
(a)What law applies to the resolution of this claim?
(b)Was the Nominal Defendant liable to Mr Jausnik?
(c)Did the State breach its duty of care to Mr Jausnik?
(d)Did Mr Hannaford breach his duty of care to Mr Jausnik?
(e)Would the accident have occurred but for the breach of duty?
(f)What is the relevant apportionment as between the defendant and the third parties?
What law applies to the resolution of this claim?
The Nominal Defendant filed a single third-party notice and statement of claim for the purposes of its claim against Mr Hannaford and the State. The statement of claim provided: “The defendant claims a contribution from the first and second third parties.” Nowhere in the statement of claim was the statutory basis for the entitlement to contribution identified. In the circumstances of this case the source of such an obligation could be either s 21 of the CLW Act 2002 or s 5 of the LRMP Act. Section 21 of the CLW Act provides:
(1) A person (the First person) who is liable for damage caused by a wrong can recover contribution from someone else (a contributory) who is also liable for the same damage.
(2) The contribution must be an amount that the court considers just and equitable having regard to the extent of the contributory’s responsibility for the damage.
(3) However, the first person is not entitled to contribution under this section if—
(a) the first person is liable to indemnify the contributory against the contributory’s liability for the damage; or
(b) the court exempts the contributory from liability to make contribution; or
(c) the court has directed that contribution to be recovered from a person for the damage is a complete indemnity for the damage.
“Wrong” is defined in s 19 as an “act or omission that gives rise to a liability in tort in relation to which a defence of contributory negligence is available at common law or such an act or omission which amounts to a breach of a contractual duty of care that is concurrent and coextensive with a duty of care in tort.”
Section 5 of the LRMP Act provides:
5 Proceedings against and contribution between joint and several tort-feasors
(1) Where damage is suffered by any person as a result of a tort (whether a crime or not):
...
(c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought.
(2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.
...
Senior Counsel for Mr Hannaford raised the possibility that the proceedings were within federal jurisdiction for a variety of reasons. This was first because Mr Hannaford relied upon a “right” as a special member of the AFP to pursue Mr Williams and this was a right derived from federal law and hence a matter arising under a law made by the Parliament for the purposes of s 76(ii) of the Constitution. No such right was pleaded. Reference was made to the fact that Mr Hannaford was a special member of the AFP (AFP Act s 40E), that “police services” are provided in the Territory by the AFP (AFP Act s 8(1A)) and that the “police services” “includes services by way of the prevention of crime and the protection of persons from injury or death, and property from damage, whether arising from criminal acts or otherwise”. Those matters, individually or collectively, do not mean that the proceedings arose under the provisions referred to in the sense required by s 76(ii): LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; (1983) 151 CLR 575 at 581. Rather, as the case was pleaded, they merely formed the background against which any relevant duty of care is to exist: cf Australian Capital Territory v Crowley [2012] ACTCA 52; (2012) 273 FLR 370 at [270]ff (Crowley).
Second, the matter was said to be in federal jurisdiction because the Nominal Defendant was a resident of the ACT and suing Mr Hannaford (presumed to be a resident of NSW) and hence within the scope of s 75(iv) of the Constitution. This contention could not be correct because the Nominal Defendant is not a “resident” of “a State”. That is because the Australian Capital Territory is not a “State” and because the Nominal Defendant is not a natural person and hence not a “resident” for the purposes of s 75(iv): Crouch v Commissioner of Railways (Q) [1985] HCA 69; (1985) 159 CLR 22; British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; (2003) 217 CLR 30 at [37].
No submission was made to the effect that because the underlying claim by Mr Jausnik was a common law claim the “matter”, including the claims for contribution, was one arising under a law made by the Parliament because of the statutory basis for the application of the common law in the Territory (O’Neill v Mann [2000] FCA 1180; (2000) 101 FCR 160); M Leeming Authority to Decide (Federation Press, 2012) at 25-26. This is an issue referred to but not decided in Crosby v Kelly [2012] FCAFC 96; (2012) 203 FCR 451 at [46].
If the matter was in federal jurisdiction, s 80 of the Judiciary Act 1903 (Cth) must be applied before recourse is had to s 79 of that Act: Blunden v Commonwealth [2003] HCA 73; (2003) 218 CLR 330 at 339. Section 80 would pick up the common law choice of law rules in any event. No party contended that if the matter was in federal jurisdiction it would make any practical difference to the issue as to which law should be applied to the claim. Because of the very limited submissions on the issue, its complexity and its lack of practical consequence in the present case, I do not attempt to finally determine it.
Because of the identity of the parties and the location in which the various matters relevant to a claim for contribution occurred, the claim could be governed by the law of the ACT or of New South Wales. In the light of the terms of s 21 of the CLW Act and s 5 of the LRMP Act it may not ultimately make a difference which provision applies to the claims made by the Nominal Defendant in this case. As a consequence, it may be possible to avoid any issue as to which applies. However, in order to identify whether that is the case and to understand what, if any, issue is being avoided, it is necessary to say something more about the choice of law in a case such as this.
Surprisingly, the relevant choice of law rule to be applied to claims for contribution or indemnity is not settled. There are at least four possible rules.
First approach: quasi-contract rule
First is the approach explained by Bray CJ in Nominal Defendant v Bagot’s Executor and Trustee Company Ltd [1971] SASR 346 at 365-366 (Bagot). This approach characterises the obligation as one of quasi-contract, namely, like an obligation arising out of a contract, but not dependent upon any consensus of the parties.
Atiyah described quasi-contract as “a heterogeneous collection of cases [that] themselves have little more in common than the fact that one person is held obliged to restore or pay for some benefit received from another in order that a just result should be reached in the circumstances of the case”: PS Atiyah An Introduction to the Law of Contract (Oxford University Press, 3rd ed, 1981) at 35.
In Bagot the NSW Nominal Defendant had paid a judgment obtained against it arising out of the driving of a vehicle in New South Wales by a South Australian driver. The relevant NSW statutory provision was one which created a statutory debt in favour of the Nominal Defendant against the owner of the motor vehicle out of which the claim against the Nominal Defendant arose. The approach adopted by Bray CJ was that the statutory provision created an obligation characterised as quasi-contract. As a result, his Honour identified the relevant choice of law rule as that being applicable in relation to quasi-contract namely “the law of the place with which the circumstances giving rise to the claim have the most real connection”: Bagot at 366. In the circumstances of that case, which involved a claim for indemnity by the NSW Nominal Defendant from the estate of a person who lived in South Australia, Bray CJ found that the place with the closest connection was NSW because that was where the accident occurred and where the injured passenger acquired his right of action.
His Honour adopted a similar approach in Hodge v Club Motor InsuranceAgency Pty Ltd (1974) 7 SASR 86 (Hodge) which involved an accident in South Australia and a Queensland statute which imposed a liability for damages directly upon the insurer of a motor vehicle. His Honour characterised the obligation as quasi-contractual even though the statute was imposing upon the insurer direct liability for conduct amounting to a tort: Hodge at 89-90.
These two decisions of Bray CJ were referred to with approval by the High Court in Sweedman v Transport Accident Commission [2006] HCA 8; (2006) 226 CLR 362 at [29] (Sweedman).
Adopting a formulation based on the closest connection inevitably gives rise to the potential for a dispute to arise as to which place fits this description, particularly where it is possible to place differing weight on connecting factors in any particular case. That is illustrated by the differing approaches in Sweedman, with the plurality judgment characterising the claim for indemnity as connected more closely to Victoria (at [30]), yet Callinan J reaching the opposite conclusion (at [120]).
Second approach: lex loci delicti rule
Second is the approach adopted by Allen M in Baldry v Jackson [1977] 1 NSWLR 494 (Baldry). His Honour did not follow the approach taken by Bray CJ, saying “[t]he claim is to be classified, in my opinion, as a delictual claim for the purposes of private international law. That, rather than quasi-contract, is the substantial character of the claim.” That was because the focus of the claim was on whether the party against whom the claim for contribution was made was guilty of a tort and, if so, the extent of that party’s responsibility in order to work out a just and equitable contribution to the amount paid by the party claiming contribution. In other words, it applies the choice of law rule that would be applicable to the tort alleged to have been committed by the persons from whom contribution was claimed against the injured party. Having regard to the decision in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503, this approach would apply the law of the lex loci delicti of the tort alleged to have been committed by the person from whom contribution was claimed.
The approach in Baldry was criticised in Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd [2015] NSWCA 73 at [18]. It also appears to be now inconsistent with the decision of the High Court in Sweedman. Sweedman involved a statutory provision which gave an entitlement to the Commission to indemnity for amounts paid by the Commission to the extent “appropriate to the degree to which the injury was attributable to the default or negligence” of the person from whom indemnity was sought. A majority of the Court (at [27]) appeared to accept that “[t]he choice of law rule in tort had no direct role to play”. Justice Callinan, who dissented in Sweedman, adopted an analysis of the substance of the action consistent with the approach in Baldry: Sweedman at [112]-[119].
Third approach: source of the obligation to compensate
Third is the approach contended for in Nygh’s Conflict of Laws in Australia (9th ed, 2014) which adopts the law of the place which imposes the obligation on the party seeking contribution to pay the injured party damages. It chooses this law because it is the source of the compulsion upon the person seeking contribution to compensate the underlying claimant in full. It is this obligation which gives rise to the unfairness if there are others responsible for the same damage. The rule is identified as having the benefit of certainty and providing the same outcome no matter where the underlying claim is brought. This appears to have been the position contended for in submissions made by the State of Victoria in Sweedman, but which it was unnecessary for the majority to decide: see Sweedman at [31]; Kourakis “Sweedman v Transport Accident Commission: A simple crash and bang?” (2007) 28 Adelaide Law Review 23 at 31-32.
Fourth approach: the legislation with the closest territorial nexus
Fourth is a constitutional solution to determining which law is applicable such as that proposed by Christopher Kourakis (when his Honour was Solicitor General), which would have the effect that where there is an inconsistency between State statutes, the statute with greater territorial nexus will prevail: see “Sweedman v Transport Accident Commission: A simple crash and bang?” (2007) 28 Adelaide Law Review 23 at 39-46. That would have the effect that “[t]he legislature of the place in which the conduct that the competing enactments seek to regulate takes place will almost always have a closer territorial nexus than the legislature of the place in which the consequences of that conduct become manifest”. He did, however, recognise that identifying a single place will not always be a simple task.
Although not addressed by Mr Kourakis, further issues would arise in relation to conflicts between State laws and the laws of a territory deriving their force from s 122. Although, on one view, laws derived from s122 should prevail, a result could be achieved whereby conflicts between the law of a State and the law of a Territory are treated in the same manner as conflicts between State and State: see G Lindell and A Mason “The resolution of inconsistent State and territory legislation” (2010) 38(3) Fed L Rev 390; M Leeming Resolving Conflicts of Laws (Federation Press, 2011) at 242-246.
The present case
This tentative examination of the different approaches and the issues that would arise tends to demonstrate the unfortunate truth of the statement that private international law is “a dismal swamp, filled with quaking quagmires, and inhabited by learned but eccentric professors who theorise about mysterious matters in a strange and incomprehensible jargon”: WL Prosser “Interstate publication” (1953) 51(7) Michigan Law Review 959 at 971.
Is it possible to avoid the issue and hence avoid entering this “dismal swamp”? The answer to that question will be influenced by whether the four possible approaches would lead to different approaches to the claims made against Mr Hannaford and NSW.
Upon the first approach the law applicable to the claim for contribution from Mr Hannaford and the State would be as follows. In relation to Mr Hannaford, the place with which the circumstances giving rise to the claim against him have the most real connection is clearly the ACT. Any negligence occurred in the ACT as did the incidents giving rise to damage. In relation to the State, the place with which the circumstances giving rise to the claim have the most real connection is less clear. The negligence occurred in NSW, the injury caused by the negligence occurred in the ACT.
Upon the second approach the inquiry is as to the lex loci delicti of the tort committed by the tortfeasor from whom contribution is claimed. The tort occurs where the negligent act or omission of the defendant occurs: Electro Optic Systems Pty Ltd v New South Wales [2012] ACTSC 184 at [292]-[295]; Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575 at [43]; Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 at 567; M Davies, A Bell and P Brereton (eds) Nygh’s Conflict of Laws in Australia (LexisNexis Butterworths, 14th ed, 2014) at [20.9]; cf Hodgson v Dimbola Pty Ltd [2009] ACTSC 59 at [16]. In the case of the claim against Mr Hannaford, the lex loci delicti was the ACT as that is where the driving and negligence occurred and (if it was relevant) the incident giving rise to damage occurred.
In the case of the claim against the State, the negligence occurred in NSW as a result of the failure to provide appropriate training or equipment. Adopting the test articulated above, the acts involved in the transition to the new radio system and any failures associated with that occurred in NSW. So too did any failures associated with training officers in relation to the cross-border pursuit policies and guidelines. As a consequence NSW law would apply to the Nominal Defendant’s claim for contribution. The position is, in any event, made clear by s 182D of the Workers Compensation Act 1951 (ACT) and s 150A of the Workers Compensation Act 1987 (NSW), which require that the substantive law of New South Wales govern the claim.
Upon the third approach the law of the place giving rise to the obligation upon the party paying compensation to the injured person is clearly the ACT, because that is the law which creates the Nominal Defendant and imposes liability on it in relation to claims arising from certain accidents in the ACT. Therefore the law applicable to the claim against Mr Hannaford and the State would be the law of the ACT.
The fourth approach would only be triggered if there was an inconsistency between statutes, which has not been identified in the present case. Adopting the position that the legislature of the place in which the conduct that the competing enactments seek to regulate takes place will almost always have a closer territorial nexus than the legislature of the place in which the consequences of that conduct become manifest would lead, in Mr Hannaford’s case, to the ACT law applying. In the claim against the State, the outcome would depend upon whether the focus was upon the quasi-contractual obligation to contribute or upon the tortious conduct which enlivens that obligation. The former would indicate the ACT the latter NSW.
Clearly, having regard to the decision in Sweedman, notwithstanding the criticisms of that decision, it would be appropriate to follow it. It is consistent with following the decisions of Bray CJ characterising the obligation to contribute as quasi-contractual and adopting a “closest connection” test. Yet, whichever approach is adopted, the law applicable to the claim against Mr Hannaford is the law of the ACT. In relation to the claim against the State, even adopting the first approach, it could be either the ACT or NSW.
The Nominal Defendant and the State agreed with each other that NSW law applied. The precise rationale for that conclusion was not exposed. As pointed out in Redbro at [15] such an agreement does not bind the Court. However, in the circumstances of this case and having regard to the similarity of the obligation, I will proceed on the basis identified by the parties because it makes no difference to the analysis or the ultimate conclusion reached. The effect of this approach is that s 21 of the CLW Act applies to the claim against Mr Hannaford and s 5 of the LRMP Act applies to the claim against the State. When applying those provisions, however, the question of the underlying tortious liability must be determined by reference to the law that would have applied had they been sued by Mr Jausnik. As it happens, those claims would follow the same pattern. In the case of Mr Hannaford tortious liability would be determined in accordance with the law of the ACT and in the case of the claim against the State, in accordance with the law of NSW.
Was the Nominal Defendant liable to Mr Jausnik?
The threshold for the operation of either contribution provision is that the Nominal Defendant was in fact liable to Mr Jausnik. The law applicable to Mr Jausnik’s claim against the Nominal Defendant was that of the ACT because that is where the breach of any relevant duty occurred and where damage was (initially) suffered.
The damage to Mr Jausnik was pure mental harm. Section 34 of the CLW Act provides that a defendant does not owe a duty of care to a plaintiff to take care not to cause the plaintiff mental harm unless a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken: s 34(1). Mental harm means an impairment of the person’s mental condition: s 32. Section 34(1) does not alter the duty of care if the defendant knows or ought reasonably to know that the plaintiff is a person of less than normal fortitude. In other words, s 34(1) has the effect that, in the absence of knowledge or constructive knowledge that the plaintiff is a person of less than normal fortitude, the question of foreseeability must be determined by reference to “a person of normal fortitude in the plaintiff’s position”.
Applied in the present circumstances, what must be shown is that Mr Williams should have foreseen that Mr Jausnik might suffer a recognised psychiatric illness as a result of Mr Jausnik being required to attend to persons suffering injuries caused by Mr Williams’ negligent driving. Put as a general proposition the question becomes: should a negligent driver have foreseen that a police officer of normal fortitude, attending the scene of an accident caused by the driver involving the death and injury caused in the present case, might suffer mental harm? When so expressed the answer is clearly “yes”. It is reasonably foreseeable that a police officer may suffer mental harm when attending the scene of an accident such as occurred here. The threshold imposed by s 34 is passed.
The other matters necessary to establish the liability of the Nominal Defendant to Mr Jausnik can be dealt with briefly.
In my view, the duty of a driver extends to persons who may suffer mental harm as a consequence of his or her negligent driving. Clearly there was negligent driving on Mr Williams’ part in the present case.
The evidence in the report of Dr Barry dated 25 October 2011 establishes that Mr Jausnik suffered damage in the form of post-traumatic stress disorder and depression as a consequence of what he saw and otherwise experienced at the site of the accident and was, at that stage, unlikely to become fit for work in the foreseeable future.
The plaintiff’s claim was particularised at almost $2.1 million. It was settled for $1.225 million. No submissions were made contesting the reasonableness of the settlement entered into by the Nominal Defendant. I accept that it was liable for the amount for which judgment was entered.
Did the State breach its duty of care to Mr Jausnik?
The State owed Mr Jausnik a duty to take reasonable care to avoid exposing him to unnecessary risks of injury. The duty that the State owed to a police officer and the relevant authorities are usefully summarised in the decision in Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 at [131]-[136].
Although the existence of a duty was not admitted on the pleadings, in final submissions the State accepted that it owed Mr Jausnik a duty of care. The State also accepted that it had an obligation to train its officers in relation to the operation of features of the motor vehicle being driven, including the radio. It did not address particular submissions to training in relation to cross-border police duties and pursuits. However, in my view, having regard to the proximity of the ACT border and the regular necessity for officers stationed in Queanbeyan to undertake activities across the border, the duty of care of the State extended to ensuring that the officers’ training extended to the protocols to be followed when involved in a cross-border pursuit.
I do not accept the submission of the Nominal Defendant that the duty of care owed by the State to Mr Jausnik was influenced by the scope of the duty that might be owed by the State to persons travelling home from the “Skyfire” fireworks event that had recently concluded at the time of the pursuit. The relevant question is the scope of the duty to Mr Jausnik not to the public at large.
The principal contention of the State was that the Nominal Defendant’s analysis on the question of breach did not extend to demonstrating what would have occurred had there been no breach so as to permit a comparison between that situation and what occurred. I will return to that issue below when considering causation.
In my view, the State breached its duty of care to Mr Jausnik in two ways. First, it failed to take reasonable steps which were available to it to ensure that, upon the installation of the new radio system within police vehicles, officers were appropriately instructed both as to the method of operation as well as in relation to the actual changes to channel and zone numbers.
As pointed out above at [49] and [50], the principal means of communicating the consequences of the change in radio systems were two emails. The sending of the two emails to officers was not sufficient to provide an appropriate level of training of those officers. While those emails provided instructions as to the changes there was nothing done to ensure that officers understood how that should be applied in practice so that they could competently use the new system when under the pressures of operational duties. Understanding often involves doing and there was nothing done to ensure that a functional level of understanding was achieved.
Further, while there was an instruction to place the new channel list behind the visor in each vehicle, there was no evidence of any system allocating actual responsibility for that task to anyone in particular or to ensure that it actually occurred.
[Redacted]
In continuing the pursuit in the circumstances that he did, Mr Hannaford continued to expose Mr Jausnik to all the risks involved in high speed pursuits, including the risk of being exposed to the circumstances of a collision arising from the pursuit.
I do not accept the submission made by senior counsel for Mr Hannaford that “policy considerations” or “the agony of the moment” mean that the conduct should not be found to be in breach of duty. In relation to the “policy considerations” submission, Mr Hannaford relied upon the statements made by McHugh J in Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 at [14]. However, that passage simply emphasises the point made at the conclusion of the passage, namely:
Reasonableness is judged in the light of current community standards. As Lord Macmillan said in Donoghue v Stevenson [1932] AC 562 at 619, "conception[s] of legal responsibility ... adap[t] to ... social conditions and standards.
That statement, in my view, supports rather than detracts from a finding of breach of duty in the present case. Although there is room for debate about community standards, in the present case it is clear that community standards are no less stringent than the guidelines prepared by the respective police forces. In circumstances where those guidelines are not complied with it involves no departure from “social considerations and standards” to find that Mr Hannaford breached his duty.
The “agony of the moment” submission was based upon the passage from the judgment of Street CJ in Leishman v Thomas (1957) 75 WN (NSW) 173 at 175 which was quoted in Stuart v Walsh [2012] NSWCA 186 at [61]. Street CJ said:
This so called principle of acting in the 'agony of the moment' is merely an application of the ordinary rule for ascertaining whether or not the conduct of any party has been negligent by looking to all the surrounding circumstances and ascertaining whether the defendant behaved in such a fashion as a reasonably prudent man, in the light of those circumstances, would not have behaved. It is a circumstance, and one possibly of great importance, that the defendant, charged with negligence, may have been forced to act in a sudden crisis or emergency, unexpected and unheralded, without that opportunity for calm reflection which makes it easy after the event to suggest that it would have been wiser if he had done something else. The jury are required to judge his conduct in the light of the happenings of the moment, and a man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so-called 'agony of the moment', he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise.
As will be apparent, this statement simply involves the application of general principles to a particular kind of factual circumstance. Plainly enough Mr Hannaford’s conduct must be judged in the circumstances in which it arose. However, this is not a case where there was any sudden crisis or emergency. Rather it involved a course of conduct over a matter of minutes in which there was time to consider whether or not it was appropriate to continue the pursuit. Therefore, while regard must be had to the circumstances of the pursuit and care must be taken not to make unreasonable criticism of a course of conduct in those circumstances, I do not consider that the factual circumstances are ones which call for the application of the approach articulated by Street CJ.
I will consider what would have happened if Mr Hannaford had not breached his duty when I consider the issue of causation below.
Would the accident have occurred but for the breach of duty?
So far as the position of Mr Hannaford is concerned, questions of causation must be dealt with in accordance with ss 45 and 46 of the CLW Act. Section 45 requires factual causation to be established by the application of the “but for” test and also requires that it be appropriate to extend liability to the harm so caused. Section 46 makes it clear that the plaintiff always bears the burden of proving on the balance of probabilities any fact relevant to the issue of causation.
So far as the claim against the State is concerned, the relevant provisions are ss 5D and 5E of the Civil Liability Act 2002 (NSW). Although the terms of those sections differ in some respects from ss 45 and 46, they incorporate the same requirement for factual causation, the scope of liability being appropriate and the burden of proof lying upon the plaintiff.
The “but for” question that arises in assessing issues of causation must involve a comparison between what would have occurred but for the breach of duty and what in fact occurred. This involves first establishing what would have been the position had the State and Mr Hannaford not breached their respective duties of care. The position of Mr Hannaford is largely dependent upon the position of the State and as a consequence I will first consider what would have been the case had the State not breached its duty to Mr Jausnik.
Having regard to the breaches of duty identified at [121] to [128] above, if the State had not breached its duty then the position would have been as follows:
(a)Both Mr Jausnik and Mr Hannaford would have had an operational understanding of the key aspects of the [redacted] AFP National Guideline outlined above. They would therefore have been aware of the necessity to communicate with the AFP upon crossing the border or terminate the pursuit.
(b)Both Mr Jausnik and Mr Hannaford would have been aware of both how to operate the new radio system as well as being aware of, or having immediate access to, the new zone and channel numbers.
In those circumstances the position would have been as follows. Upon crossing the border and after calling in the pursuit to the NSW Police radio, Mr Jausnik would then have made contact, using the vehicle’s radio system, with the AFP. That would have resulted in questions being asked and answers given by Sergeant Alison Williams, who was the AFP pursuit controller on duty, so as to determine the reason for and circumstances of the pursuit. Assuming that the report to NSW could have been completed and communication established with the AFP within 500 m of the NSW border (12-18 seconds after crossing the border) then there was approximately 2.5 km between that point and the Hindmarsh Drive intersection. Travelling at 150 km/h that distance would have been covered in 60 seconds.
It is at this point necessary to understand the evidence of Sergeant Williams. Her function involved making decisions in relation to any pursuit that was reported over the police radio. She was located in the Winchester Police Centre in Belconnen. Individual operators were assigned to listen to and communicate on the three relevant police channels. They were a northside channel, a southside channel and an enquiry channel. The enquiry channel was used for enquiries on such matters as licence checks which may take a little bit longer for the radio operator to pass a message back. She was able to listen to the communications on each of those channels simultaneously. She was asked what she would have done in relation to a pursuit had she been provided with information describing the following circumstances:
A New South Wales registered vehicle had passed through a roundabout in Richard Avenue Queanbeyan with a revving the engine and a squeal of tyres and at excessive speed, it proceeded along Kendall Avenue to the intersection of Kendall Avenue and Canberra Avenue. In initially came to a halt at that intersection. Following the activation of the lights and sirens vehicle proceeded through a red light intersection of Kendall Avenue and Canberra Avenue and thereafter proceeded at a speed as high as 150 km/h or more down Canberra Avenue towards Canberra.
The answer she ultimately gave in relation to what she would have done after the pursuit moved out of NSW and into the ACT was:
Again, in hindsight and knowing what I know now being 157 km an hour through that red light, then I would have terminated the pursuit.
She said that in assessing whether or not to give permission for a pursuit to continue she made a risk assessment based upon the information that was being provided to her over the radio. She said that she would take into account the manner in which the vehicle was being driven, the speed and things like the road and weather conditions, the number of vehicles on the road and any other information communicated to her from within the pursuing vehicle.
In cross-examination she agreed that eliciting the relevant information from the vehicle and, if necessary, the radio operator clarifying information with the pursuit vehicle normally took “some seconds”. She said that there would be occasions when she would call off a pursuit early, for example if she could hear some panic in the radio operator’s voice or if the speed of the pursuit was concerning enough for her. She was not asked to give any estimate of the overall time that it would take in a usual case to elicit sufficient information to make a decision about whether or not to terminate a pursuit. In re-examination she agreed with the proposition that a speed of 150 km/h on Canberra Avenue at the time of night at which the pursuit occurred in this case would have fallen into the category of information sufficient for her to decide to terminate the pursuit. She also agreed that a pursuit at that speed involving passing through the Hindmarsh Drive intersection against a red light would have caused her to terminate the pursuit. Giving the instruction to terminate and having that relayed by the operator to the vehicle would only have taken a couple of seconds.
In one of her statements Sergeant Williams refers to there being “pursuit signage” posted in front of the operator monitoring the channels upon which a report of a pursuit would be made (the northside or southside channel, rather than the enquiry channel over which the report was in fact made). Her statement provided:
The pursuit signage details the pursuit warning and the things that the operator must elicit from the patrol calling the pursuit such as location, speed, traffic and road conditions, category of the police vehicle and a driver qualification.
This was the full extent of the evidence about what the pursuit signage involved.
In the light of the evidence of Sergeant Williams, there appear to be two possible scenarios. The first, which arose out of a single answer that she gave in re-examination, would be that she would be informed within a few seconds of communication being established that the location was Canberra Avenue and the speed was 150 km/h and that those facts alone would have caused her to terminate the pursuit. If that was the case then, on the assumption that I have outlined above that contact would have been made within 500 m of the border, the decision to terminate the pursuit might have been made shortly before the crest of the rise on Canberra Avenue some 1.4 km from the NSW border and 1.6 km prior to the Hindmarsh Drive intersection.
The other alternative is that more information could have been exchanged between the AFP and Queanbeyan 37 describing the location with more precision, the speed, the amount of traffic and road conditions, category of police vehicle, driver qualification and possibly the reason for the pursuit. That would be consistent with the “pursuit signage” referred to in Sergeant Williams’ statement quoted above. If that was the case, the evidence of Sergeant Williams does not give an estimate of the time that that would have taken. However, in my view, having listened to the manner of communication in the recording of the transmissions that in fact occurred on the NSW Police radio and AFP radio, the information is likely to have been provided within 30 to 60 seconds of initial contact with the AFP.
Although the likely timing was not described with precision in the evidence, having regard to Sergeant Williams’ answers in re-examination, it is possible to find on the balance of probabilities that she would not have permitted the continuation of the pursuit beyond the Hindmarsh Drive intersection. It is possible to make that finding because:
(a)while the road from the border to the intersection was relatively clear, in the sense of being a good open road with few intersections, Hindmarsh Drive was a major intersection which presented an obvious and significant risk that would arise from the continuation of the pursuit past that point; and
(b)it is likely that she would have had sufficient information at that point to make a decision in the light of the increasing hazards presented by continuing the pursuit further into the Territory.
I do not consider it possible to find, in the light of the answer based solely upon speed given in re-examination, that, on the balance of probabilities, Sergeant Williams would have terminated the pursuit if she only had the information that the vehicle was travelling at 150 km/h on Canberra Avenue. That is because the evidence does not sufficiently disclose the order of questions that would be asked and it was not clear which portion of Canberra Avenue Sergeant Williams was addressing in her answer.
On the assumption that the pursuit would, but for the negligence of the State and Mr Hannaford, have been terminated prior to the Hindmarsh Drive intersection, the issue then becomes whether or not it can be said on the balance of probabilities that the collision would have been avoided. That in turn depends upon whether the evidence, including the expert evidence, supports a finding that Mr Williams would have ceased driving in the manner that he was if Queanbeyan 37 had terminated its pursuit prior to the Hindmarsh Drive intersection. Termination of a pursuit involves the police vehicle turning off lights and sirens, slowing to the speed limit and then turning around and returning from whence it came.
On this issue I do not consider that significant weight can be placed upon the expert evidence of Prof Alpert, Mr Hosking or for that matter Prof Lyman. The sole empirical basis for any conclusion about the distance which a fleeing vehicle would travel after the police ceased actively pursuing it was the study from the Journal of Criminal Justice and Behaviour (the High Speed Pursuit Study). I do not consider that this is a reliable basis for a finding as to how Mr Williams would actually have behaved for three reasons.
First, it is a single study with no Australian equivalent and no body of research which would indicate the robustness or general acceptance of the particular figures identified in the study.
Second, it was based upon self-reports by prisoners as to “what it would have taken for them to slow down”. Seventy-five percent reported that they would slow down “when they felt safe”. Of that 75% the average distance which they said they would take before they felt safe on a highway was 3.2 to 4 km. These figures are self-reported figures and there is no indication in the study as to the accuracy of those estimates when compared to actual pursuit behaviour. The 3.2 to 4 km figures are averages of the estimates given by those respondees within the 75% who said they would stop when they “felt safe”. Thus, within the 75% there will be a range of figures the distribution of which is not disclosed in the report. The report does not disclose whether the remaining 25% reported that they would not stop or whether they would stop but in circumstances other than “when they felt safe”.
Third, it is not clear where Mr Williams would have fallen amongst the spectrum of motivations reflected in the study. Having regard to the very high blood alcohol reading and the absence of any information in the study identifying whether those who were under the influence of drugs or alcohol were more or less likely to be within the 75%, it is not possible to draw conclusions relevant to the behaviour of Mr Williams from the study.
So far as the opinion expressed by Prof Alpert is based upon the High Speed Pursuit Study I am not satisfied that the study provides a reliable basis for assessing the behaviour of Mr Williams in the present case. Although Prof Alpert identified the distance of approximately “two-three km” as the distance in which “Mr Williams would have felt safe and slow down”, it is not clear how that figure is derived having regard to the figures in the High Speed Pursuit study. While it is possible to accept as a general proposition that pursued vehicles will generally slow down after a period during which the pursued driver perceives that the police are no longer in pursuit, it is not, in my view, possible, based upon the evidence of Prof Alpert and Mr Hosking, to reach the more specific conclusion as to the distance in which, more likely than not, that would generally occur or occur in the circumstances of this particular case.
In those circumstances, can it be said that it is more likely than not that the collision would not have occurred if the pursuit had been terminated when the police vehicle was between the crest of the rise on Canberra Avenue and the Hindmarsh Drive intersection? On that hypothesis the police vehicle would have turned off its lights and siren, slowed to the speed limit and then turned around in order to return to NSW. It is likely that Mr Williams would have passed through the Hindmarsh Drive intersection at a speed similar to that which he did in fact pass through it. The critical issue is whether or not he would have slowed down in the 1.6 km between that intersection and the crash site. Travelling at 150 km/h it would have taken approximately 40 seconds to travel from the Hindmarsh Drive intersection to the site of the collision.
It is possible to reason that he would have. He would have travelled down the hill towards the Monaro Highway intersection and observed in his rear view mirror that the police were no longer pursuing him. He therefore, after a number of seconds, would have felt safe enough to slow down from the speed at which he was travelling when he passed through the Hindmarsh Drive intersection so that by the time he reached the intersection with Ipswich Street he was travelling at a lesser speed and passed through the intersection at a lower speed at a different time so as to not collide with the Oppelaar family’s vehicle.
However, in my view, such an approach involves a substantial degree of speculation about the behaviour of Mr Williams which is not warranted. Mr Williams was heavily intoxicated and driving in a very reckless manner. While it is possible that he might have adopted a relatively rational approach and modified his conduct if he observed that the police were no longer chasing him, it certainly cannot be said on the balance of probabilities that he would have. Reasoning based on “common sense” is dangerous when assessing criminal conduct: Modbury Triangle Shopping Centre Pty v Anzil [2000] HCA 61; (2000) 205 CLR 254 at [150]. The only witness to Mr Williams’ behaviour, state of mind or level of intoxication, his passenger Skye Webbe, did not give evidence in this case and there is no evidence of what, if any, observations she made of him. Having regard to his observed actions, what is known about his state of intoxication, the absence of evidence about his state of mind and the absence of evidence about his behaviour within the vehicle, it is not possible to reach a conclusion on the balance of probabilities that he would have modified his conduct by reducing his speed in the period prior to the collision.
This does not appear to be a case where the issue of the factors which led the silver Mazda to be at the place where and at the time that the accident occurred can be ignored: cf March v E & MH Stramare Pty Ltd [1991] HCA 12; (1910) 171 CLR 506 at 516; Mobbs v Kain [2009] NSWCA 301 at [21]; H.L.A Hart and T Honoré Causation in the Law (Clarendon Press, 2nd ed, 1985) at 122. Therefore the Nominal Defendant could succeed if it demonstrated on the balance of probabilities that the cessation of the pursuit would have led to the silver Mazda passing through the intersection at a different time and avoiding any accident. However, in the present case, any such conclusion would involve the interplay of at least two factors in relation to which the evidence does not permit more than speculation.
First, it involves an adjustment to Mr Williams’ speed that would result in his arrival at the location of the collision at a time before or after Mr Oppelaar’s vehicle had crossed the northbound carriageway of Canberra Avenue. It is not possible to say how much earlier or later the silver Mazda would have had to have arrived in order to avoid the collision with Mr Oppelaar's vehicle. Further, as I have pointed out above, it is not possible to safely reach any conclusion as to Mr Williams’ behaviour following a cessation of the pursuit. Slowing down, travelling at the same speed or speeding up were all actions that Mr Williams might have taken if the pursuit had been ended prior to the Hindmarsh Drive intersection.
Second, it would also involve a conclusion that arriving at the intersection at an earlier or later time would have avoided an accident that gave rise to damage to Mr Jausnik. There is evidence that there were other vehicles at the two intersections near the Monaro highway overpass, one of which was driven by Mr Hill. Although it is hard to imagine a more catastrophic collision than that which occurred, in the light of the paucity of evidence and the very significantly intoxicated state in which Mr Williams was driving, it is not possible to reach the conclusion that no accident would have occurred or that no mental injury would have been inflicted on Mr Jausnik.
My conclusion therefore is that had there not been a breach of duty by the State or Mr Hannaford, then the collision might have been avoided, but I cannot be satisfied of that on the balance of probabilities: cf Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at [50]. As a consequence, I am not satisfied on the balance of probabilities that either the State or Mr Hannaford are persons “who [are] liable for the same damage”. For that reason the defendant’s claim against both third parties fails.
In reaching this conclusion I have not accepted Mr Hannaford’s submission that Mr Williams’ criminal actions constituted an intervening cause severing any causal connection between any act or omission on the part of Mr Hannaford and the injury suffered by Mr Jausnik. What constitutes a novus actus interveniens sufficient to break the causal chain is a matter of fact and degree: Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37;(1985) 156 CLR 522 at 528; Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 at 124-125. However, a novus actus interveniens does not arise when the new act involves the very risk brought about by the negligence of the defendant: McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306. Mr Williams’ offending behaviour, including his reckless and intoxicated driving, provided the context in which Mr Hannaford performed his duties. It was not a matter separate from the causal chain of events. Instead it was a reasonably foreseeable risk arising from the decision by Mr Hannaford to continue the pursuit of Mr Williams’ vehicle as far as he did.
What is the relevant apportionment as between the defendant and the third parties?
In the event that I am wrong in my conclusion that the Nominal Defendant has failed to prove on the balance of probabilities that, in the absence of the negligence on the part of Mr Hannaford and Mr Jausnik, the accident would not have occurred, I will consider the operation of s 21 of the CLW Act and s 5 of the LRMP Act.
There are two relevant aspects of these provisions. First, there is the commonly applied apportionment provision. Second, each provision also incorporates the capacity for the Court to exempt a party from whom a claim for contribution is made from the obligation to make any contribution.
This second aspect of the provisions requires some further examination in order to understand the apparently straightforward submission made by Mr Hannaford and the State that no contribution should be ordered to be made even if liability was established. The power to exempt a party from contribution is reflected in s 21(3)(b) of the CLW Act, which provides that a person is not entitled to contribution if “the court exempts the contributory from liability to make contribution”. It is also reflected in s 5(2) of that LRMP Act, which provides “and the court shall have power to exempt any person from liability to make contribution”. The structure of s 21 suggests that the power to exempt a contributory from liability in s 21(3) is a separate and distinct power from the obligation in s 21(2) to fix the contributory’s contribution at an amount that the Court considers just and equitable. In contrast, in s 5 the power to exempt is dealt with in the same provision as that identifying the amount of contribution as being that which is just and equitable and permitting a contribution to be a complete indemnity, namely, s 5(2). The structure of s 5(2) is suggestive of the exemption power simply being one end of the just and equitable spectrum, the other being the contributory providing a complete indemnity for the damage.
In the Soblusky v Egan [1960] HCA 9; (1960) 103 CLR 215 at 235 the High Court said of an equivalent Queensland provision:
There is no doubt a question whether the words “just and equitable having regard to the extent of that person’s responsibility for the damage”, permit the court to take into account other considerations than responsibility for the damage. The power to exempt or on the other hand to direct a full indemnity perhaps suggests that other considerations, all considerations relevant to justice and equity, may be taken into account. It is a point however that need not now be decided.
Amaca Pty Ltd v New South Wales [2003] HCA 44; (2003) 77 ALJR 1509 (Amaca) involved an appeal from the New South Wales Court of Appeal which, in turn, had involved an appeal from a decision of a trial judge who had exempted the State of New South Wales pursuant to s 5(2) of the LRMP Act. The effect was that the State was not required to contribute to the liability of James Hardie & Coy Pty Ltd, the manufacturer of the asbestos products. The trial judge exercised the power to exempt a party in circumstances where, for the purposes of the exercise, the liability of the State to the plaintiff had been assumed and not found. As a consequence neither the duty nor the breach was identified with any particularity. Thus although the Court of Appeal had found that it should not interfere with the exercise of the trial judge’s discretion ((2001) 53 NSWLR 626 at [144]-[149], [176], [189]), the High Court held that the decision of the Court of Appeal had to be set aside and the matter remitted for further hearing. The reasons of the High Court (Amaca at [20]) open up a further issue about the operation of the exemption power which has not been determined:
What was assumed was that the State had breached a duty of care which it owed the injured plaintiff. But neither the duty nor the breach was identified with any particularity. Without identifying the duty owed, and the breach or breaches committed, it was not, and is not, possible to identify the extent of that party's responsibility for the damage. Nor is it possible to say that that party should be exempted from liability despite it having breached a duty which it owed the plaintiff. (It is unnecessary to consider whether, or in what circumstances, it would be proper to exempt a negligent party from liability to contribute. It may be that the power to exempt is engaged only where the party to be exempted was not at fault but found liable for some form of strict liability. That question was not argued and need not be decided.)
The bracketed portion of this quote leaves open the possibility that the power to exempt is distinct from the power to apportion and can only operate in very limited circumstances. Having regard to the conclusion that I have reached, the potential complexity of this issue and the absence of any proper submissions as to the operation of the provision, it is not appropriate the attempt to determine the scope and operation of the exemption power in s 21(3)(b) of the CLW Act or s 5(2) of the LRMP Act.
Had the exercise been one simply involving an apportionment between tortfeasors it would have involved a comparison of both culpability (in the sense of the degree of departure from the standard of care of a reasonable person) and the relative importance of the act of the parties in causing the damage: Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494. In that case the judgment of the Court provides:
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage ... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.
Consideration of the relative extent of departure from the standards of a reasonable person and the relative causal potency of the act in causing the damage leads to an apportionment of liability overwhelmingly to Mr Williams and hence the Nominal Defendant.
The degree of departure from the standard of care: Mr Williams’ departure from the standard of care involved the creation of the catastrophic circumstances of the accident which, in turn, exposed Mr Jausnik to the experiences which have given rise to his post traumatic stress disorder and depression. His conduct involved an outrageous disregard for the safety of others. It occurred when, and I infer was facilitated by the fact that, he was driving whilst intoxicated. His conduct therefore involved a gross departure from the standard of care expected of a reasonable person.
So far as the State of New South Wales is concerned, it involved administrative failings and a failure to provide adequate training to Mr Jausnik and Mr Hannaford. While there was a departure from the standard of care expected, it cannot be said that it was a major or gross departure from that standard.
So far as Mr Hannaford is concerned, his conduct involved a departure from the standard of care expected of a police driver, but that was largely the result of the breach of duty by his employer to ensure that he and Mr Jausnik were appropriately trained. He was doing what he perceived to be his police duty at the time. There was no degree of recklessness or irresponsibility in his conduct that would enable his departure from the standard of care to be characterised as a major one.
Causal potency: In relation to this the conduct of Mr Williams is overwhelming. It was his action which caused the accident and was the overwhelming cause of the harm to Mr Jausnik. It was his vehicle and his conduct which caused the deaths of the three victims as well as himself and the injury to his passenger. On the assumption that causation was established, the conduct of the State and Mr Hannaford was only indirectly a cause of harm to Mr Jausnik.
I do not accept the submissions made by Mr Hannaford and the State that this should result in an apportionment of 100% responsibility to the Nominal Defendant. There appears to me to be no appropriate reason to, in effect, ignore the fact that those parties were responsible for the same damage, even if to a much lesser extent than Mr Williams.
Having regard to these factors, had it been necessary, I would have assessed the appropriate apportionment as being 92.5% to the Nominal Defendant, 5% to the State of New South Wales and 2.5% to Mr Hannaford.
Orders
The orders of the Court are:
1. Judgment be entered in favour of the first third party and second third party against the defendant.
2. The defendant is to pay the costs of the first third party and second third party.
3. Order 2 does not take effect for a period of 14 days and, if any party notifies my associate by email (copied to each other party) within that period that it wishes to be further heard in relation to costs, does not take effect until further order of the Court.
Annexure – extracts of Police Pursuit Policies
As at the date of the accident the AFP had published a document entitled “AFP National Guideline: ACT Policing: Urgent duty driving and pursuits”. The document took effect from 7 December 2007 and, most relevantly, provided:
6. Policy
There are serious safety risks associated with police officers driving at speeds in excess of prescribed speed limits, and with the pursuit of drivers who refuse to comply with a direction to stop. The sworn duty of a police officer to protect life and property will always have primacy over the need to apprehend offenders, especially when the offence involved is relatively minor, or where there are safer options other than immediate apprehension.
...
19. Pursuit management and coordination
...
b. The primary responsibility for the initiation and conduct of a pursuit rests with the member driving the police vehicle. That member will:
i. Drive in a manner that prioritises the safety of the police and public
...
20. Pursuit driving
...
b. Members involved in a pursuit will, when approaching any intersection, slow their vehicle and only enter the intersection when it is safe to do so. Where an intersection is controlled by any traffic control device, including red traffic lights or stop signs facing the driver, the driver must consider whether it is necessary to bring the police vehicle to a complete stop in order to safely enter the intersection.
...
21. Roles and responsibilities
...
h. Prior to commencing, and during a pursuit, members will assess, and continue to re-assess the risk to member of the public, themselves and those persons in the subject vehicle. These risks include, but are not limited to:
i. The real or potential danger to police, members of the public or people in the suspect vehicle (for example, overtaking into oncoming traffic, disobeying traffic signals, crossing intersections at speed)
ii. The volume of road and pedestrian traffic in the area
iii. The weather and road surface conditions, and features of the particular locality of the pursuit
iv. The nature and comparative seriousness of the offence/matter
v. Whether there are other reasonable means available for police to identify or apprehend the relevant people
vi. Whether it would be practicable to terminate the pursuit with the use of tyre deflation devices
vii. The distance between the police vehicle and the other vehicle is so great that further pursuit is futile
viii. The speed of the subject vehicle involved
ix. The experience/competency of the driver
x. The performance capabilities of the police vehicle
xi. The classification of the police vehicle in accordance with this National Guidelines
xii. The provisions providing exemptions for urgent duty driving within Rule 305 of the Australian Road Rules as outlined in Section 8.
i. When a pursuit is commenced, a member in the vehicle will notify Police Communications of:
i. The reason for the pursuit
ii. The vehicle description and registration number if available
iii. The location and direction of the offending vehicle
iv. The progress of the pursuit (at regular intervals)
v. The speed of the offending vehicle (at regular intervals)
vi. The relevant speed limit
vii. Traffic conditions
viii. The category class of the member’s vehicle
ix. The driving qualifications of the member.
...
k. All vehicles involved in a pursuit will maintain a safe distance between each vehicle.
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24. Termination of pursuit
a. Where the value of apprehending an offender in pursuit, is outweighed by any one or more of the following criteria, the member who is the driver of the vehicle involved in the pursuit will terminate that pursuit:
b. The real or potential danger to police, members of the public or people in the suspect vehicle (for example, overtaking into oncoming traffic, disobeying traffic signals, crossing intersections at speed)
i. The volume of road and pedestrian traffic in the area
ii.The weather and road surface conditions, and features of the particular locality of the pursuit
iii. The nature and comparative seriousness of the offence/matter
iv. Whether there are other reasonable means available for police to identify or apprehend the relevant people
v. The offenders identity [sic] is established to a point where later apprehension is likely and there is no immediate threat to public safety
vi. The distance between the police vehicle and the other vehicle is so great that further pursuit is futile
vii. The speed of the subject vehicle involved
viii. The experience/competency of the driver
ix. The performance capabilities of the police vehicle
x.The provisions providing exemption from urgent duty driving within Rule 305 of the Australian Road Rules no longer apply
xi. Where there are malfunctions with police equipment and/or serious damage to the police vehicle involved in a pursuit which makes the continued operation of the pursuit hazardous
xii. The vehicles in the pursuit lose radio contact with ACT Police Communications.
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26. Cross border pursuits
a. Where there is likelihood that pursuit will cross into New South Wales (NSW) Police Communications will make all reasonable attempts to notify the NSW Police Service and seek permissions to continue the pursuit in that State until that State can resume or terminate the pursuit.
b. At the time of notification the following information will be provided:
i. The location and directions of travel of the pursuit
ii. Speed of suspect vehicle
iii. Prevailing speed limit
iv. A description of the vehicle being pursued
v. Driver’s Special Constable status within NSW
vi. Driver’s police experience, rank, driving qualification and duty type, for example General Duties or Traffic Patrol
vii. The classification of the police vehicle involved in the pursuit
viii. The reason for the pursuit.
c. If permission cannot be obtained or permission to continue the pursuit is declined such pursuit will be terminated prior to entering NSW, or in any case immediately on receipt of notification to terminate.
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f. The provisions of this section will similarly apply when NSW Police vehicles cross into the Australian Capital Territory for the purposes of pursuit.
g. NSW Police vehicles engaged in a pursuit into the ACT are expected to comply with the provisions of this National Guideline.
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i. Members involved in pursuit driving will comply with both their home jurisdictions [sic] pursuit driving policy and that of the jurisdiction being entered. Where there is a conflict between those policies the policy of the jurisdiction being entered, and in which the pursuit is taking place, will take precedence.
The “Safe Driving Policy – NSW Police Force” provided:
[Redacted]
| I certify that the preceding two hundred and four [204] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 18 October 2016 |
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