State of NSW v Tyszyk

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.