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 |
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- Case
- [2016] ACTSC 306
- Decision Date
CaseChat Overview and Summary
The primary legal issues were whether the State of New South Wales was liable for the injuries sustained by Ms Jausnik due to the failure to provide adequate training and whether the police officers were negligent in their handling of the pursuit. Additionally, the court had to determine the appropriate statutory contribution between the parties under the relevant legislation, particularly in light of the accident occurring in the ACT following the pursuit from New South Wales. The court also needed to resolve whether the causation of Ms Jausnik's injuries was established on the balance of probabilities.
The court held that the State of New South Wales was liable for the injuries sustained by Ms Jausnik due to the failure to provide adequate training and protocols for police pursuits. However, it found that the police officers were not negligent as it was not established on the balance of probabilities that the accident would not have occurred if the pursuit had been terminated earlier. The court also determined that the ACT legislation on statutory contribution did not apply extraterritorially, and therefore, the State of New South Wales could not seek contribution from the ACT. The court concluded that the causation of Ms Jausnik's injuries was not proved on the balance of probabilities.
The court ordered that the State of New South Wales was liable for Ms Jausnik's injuries, but the police officers were not. The court also ruled that the State of New South Wales could not seek statutory contribution from the ACT. The final order was to dismiss the claim for contribution by the ACT Nominal Defendant against the State of New South Wales and the police officers.
Orders
Orders of the court
See [202]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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