Appeal Outcome: Special leave application dismissed with costs 1 May 2009 (S369/2008)
New South Wales
Court of Appeal
CITATION: State of NSW v Tyszyk [2008] NSWCA 107 HEARING DATE(S): 6 February 2008
JUDGMENT DATE:
26 May 2008JUDGMENT OF: Mason P at 1; Giles JA at 2; Campbell JA at 15 DECISION: (1) Appeal upheld.
(2) Verdict and judgment for the Respondent set aside.
(3) In lieu thereof, verdict and judgment for the Appellant.
(4) Subject to Order 6, cross-appeal dismissed.
(5) Cross-appellant to pay costs of the Second Cross-Respondent of the cross-appeal.
(6) Reserve the question of what, if any, order for costs should be made concerning the costs, as between the Appellant and the Respondent, of the appeal, the cross-appeal, and the proceedings in the court below.CATCHWORDS: TORTS – negligence – duty of care – police officers – Respondent struck by downpipe that fell from apartment building – police officers called to scene – whether police owed duty of care to Respondent – whether warning given to Respondent – office of constable at common law – statutory bases for operation of police force – common law and statutory powers and duties of police officers – common law duties of police officers concerning crime – common law duties of police officers concerning keeping the peace – interaction of police powers, duties and discretions – whether public policy a reason for not imposing a duty of care – whether recognition of duty of care to Respondent would be incompatible with any other duty police owed – connection between public policy factors relevant to whether police owe a duty of care and coherence as a factor in deciding whether duty of care exists – relevance of concept of proximity in determining existence of duty of care – salient features analysis – relevance of class to whom public duty owed – significance of finding that police did not engage in any positive act in a negligent fashion – whether police were in control of site – whether plaintiff vulnerable – no reliance on s 213 Police Act 1990 – breach of duty of care – whether failure of police to prevent Respondent from acting in a particular way constituted or was merely evidence of breach of duty of care – whether performance of duty required police to place themselves in situation of potential danger – where contrary to standard operating procedures under which police worked - TORTS – negligence – duty of care – breach – where building owner accepts existence of duty to take reasonable care that building does not cause personal injury to passers by – whether building owner ought reasonably to have realised that causal mechanism by which downpipe became loose was a possible risk – where no evidence that building owner knew that pipe was loose – where case pleaded solely on basis of negligence and not in public nuisance - TRIALS – issues – restrictions on litigant taking on appeal a point not taken below –…
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Details
- Case
- [2008] NSWCA 107
- Decision Date
CaseChat Overview and Summary
The case of *State of NSW v Tyszyk* concerned an appeal to the Court of Appeal of New South Wales regarding a negligence claim brought by the respondent, Mr. Tyszyk, against the appellant, the State of New South Wales. Mr. Tyszyk had been struck by a downpipe that fell from an apartment building. Police officers had attended the scene prior to the incident. The central dispute revolved around whether the police officers owed a duty of care to Mr. Tyszyk in the circumstances.
The legal issues before the Court of Appeal included whether the police owed a duty of care to the respondent, considering their common law and statutory powers and duties, and the interaction between these powers, duties, and discretions. The court was required to determine if public policy considerations or the potential incompatibility of such a duty with other duties owed by the police would preclude the recognition of a duty of care. Furthermore, the court considered the relevance of proximity, the salient features of the relationship between the parties, and the significance of the police not engaging in any positive negligent act or controlling the site. The court also had to consider whether the failure of the police to prevent Mr. Tyszyk from acting in a particular way constituted a breach of duty, or was merely evidence of such a breach.
The Court of Appeal reasoned that the common law duties of police officers primarily relate to the prevention and detection of crime and the keeping of the peace. In this instance, the police had attended the scene but had not created the danger, nor had they assumed control of the site or the building from which the downpipe fell. The court found that the police had not engaged in any positive act of negligence. Applying a salient features analysis, the court concluded that the relationship between the police and Mr. Tyszyk lacked the necessary proximity to establish a duty of care in negligence. The court determined that imposing a duty of care in these circumstances would be incompatible with the broad public policy considerations that underpin the exercise of police powers and discretions, particularly in situations where police are responding to an existing hazard rather than creating one.
The Court of Appeal upheld the appeal, setting aside the verdict and judgment that had been entered for the respondent in the court below. In lieu thereof, the court entered a verdict and judgment for the appellant. The cross-appeal was dismissed, subject to a reservation regarding the costs of the appeal and the proceedings in the court below.
The legal issues before the Court of Appeal included whether the police owed a duty of care to the respondent, considering their common law and statutory powers and duties, and the interaction between these powers, duties, and discretions. The court was required to determine if public policy considerations or the potential incompatibility of such a duty with other duties owed by the police would preclude the recognition of a duty of care. Furthermore, the court considered the relevance of proximity, the salient features of the relationship between the parties, and the significance of the police not engaging in any positive negligent act or controlling the site. The court also had to consider whether the failure of the police to prevent Mr. Tyszyk from acting in a particular way constituted a breach of duty, or was merely evidence of such a breach.
The Court of Appeal reasoned that the common law duties of police officers primarily relate to the prevention and detection of crime and the keeping of the peace. In this instance, the police had attended the scene but had not created the danger, nor had they assumed control of the site or the building from which the downpipe fell. The court found that the police had not engaged in any positive act of negligence. Applying a salient features analysis, the court concluded that the relationship between the police and Mr. Tyszyk lacked the necessary proximity to establish a duty of care in negligence. The court determined that imposing a duty of care in these circumstances would be incompatible with the broad public policy considerations that underpin the exercise of police powers and discretions, particularly in situations where police are responding to an existing hazard rather than creating one.
The Court of Appeal upheld the appeal, setting aside the verdict and judgment that had been entered for the respondent in the court below. In lieu thereof, the court entered a verdict and judgment for the appellant. The cross-appeal was dismissed, subject to a reservation regarding the costs of the appeal and the proceedings in the court below.
Orders
Orders of the court
(1) Appeal upheld. (2) Verdict and judgment for the Respondent set aside. (3) In lieu thereof, verdict and judgment for the Appellant. (4) Subject to Order 6, cross-appeal dismissed. (5) Cross-appellant to pay costs of the Second Cross-Respondent of the cross-appeal. (6) Reserve the question of what, if any, order for costs should be made concerning the costs, as between the Appellant and the Respondent, of the appeal, the cross-appeal, and the proceedings in the court below. (The members of the Court agreeing with the orders of Campbell JA)
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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