Tyszyk v State of New South Wales

[2009] HCATrans 84

[2009] HCATrans 084

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S369 of 2008

B e t w e e n -

JOHN TYSZYK

Applicant

and

STATE OF NEW SOUTH WALES

Respondent

Application for special leave to appeal

FRENCH CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 MAY 2009, AT 9.40 AM

Copyright in the High Court of Australia

MS S. NORTON, SC:   If the Court pleases, I appear for the applicant with my learned friend, MS M. FRASER.  (instructed by Brydens Law Office)

MR M.J. O’MEARA:   May it please the Court, I appear for the respondent  (instructed by Crown Solicitor’s Office)

FRENCH CJ:   Yes, thank you.

MR O’MEARA:   Mr Marshall is unable to be here today and apologises.

FRENCH CJ:   Thank you, Mr O’Meara.  Yes, Ms Norton.

MS NORTON:   Your Honour, this is an application for special leave to appeal a decision of the New South Wales Court of Appeal overturning a decision of the District Court which found that two police officers had breached ‑ ‑ ‑

GUMMOW J:   You need an extension of time, do you not?

MS NORTON:   I do.  I have the affidavits here.

FRENCH CJ:   Is that opposed? 

MR O’MEARA:   Not opposed. 

FRENCH CJ:   Yes, you have your extension of time.

MS NORTON:   Thank you, your Honour.  Two officers had breached a duty they owed to Mr Tyszyk to take reasonable steps to keep him safe from the danger posed by a heavy pipe which was hanging over a footpath.  The scene of the accident itself is a narrow, one‑lane road in the Kings Cross area with parking only on one side.  If a car was parked there, it left just enough space for one car to pass between the parked car and the other gutter.  So it is a very narrow little street.  There is a very old block of units about 80 years old with big, heavy copper drainpipes down the side.  The side of the building came flush up to the footpath so that when in some high wind this pipe came loose.  It was swinging over the footpath.

FRENCH CJ:   There is not much doubt the pipe was dangerous.  The problem you have, is it not, is that nobody on the Court of Appeal seems to have thought there was a breach, duty or no duty.

MS NORTON:   That is right.

FRENCH CJ:   Is that not rather circumstantial?

MS NORTON:   It is.

FRENCH CJ:   How does a special leave point arise out of that?

MS NORTON:   The decision in the Court of Appeal is not really unanimous in that two of the judges merely decided on breach.

FRENCH CJ:   On the question of breach it is, is it not?

MS NORTON:   But on the question of breach it is, your Honour.  We say that the trial judge’s judgment on the question of breach is correct.  If that is correct, then the case itself does, frankly, raise the questions of whether and in what circumstances the police owe a duty and whether they are immune from suit if it is not investigation or prosecution.  So it really depends on there being a possibility of overturning the decision of the Court of Appeal overturning the trial judge’s decision on the question of breach.  Unless that is done, then it does not raise a special leave point.

GUMMOW J:   This Hertfordshire Police Case does not really seem to be in point, does it?

MS NORTON:   No.  I did not put it on my list of authorities or send it up, your Honour, because when I read it I – there are some paragraphs in the dissenting judgment which say some useful things about the nature of the duty as it is in England, but I could not see how it was of any assistance in this case so I did not put it on the list of authorities.  I am not quite sure why it is in the written submissions.  The question then I suppose narrows itself down to whether there are sufficient prospects of this Court intervening to overturn the intermediate appeal court’s finding on the question of breach to warrant a grant of special leave.  We say that there is, not simply because the trial judge found facts that were open to her to find and applied the law, which certainly as it was argued before her was correct, but simply because it narrows down even further.

It would seem from reading – and it is not a very lengthy judgment on breach in the majority decision – that the trial judge made a finding that there was a duty and that it was breached because the police officers in question had elevated the convenience of drivers above the safety of pedestrians and drivers, which were what they were called to the scene to attend to.  She says it quite briefly in application book page 15 at about point 50. 

The background facts that are relevant to the question of breach are that there were two police officers who gave evidence.  Constable Winslow said that, although they had walked there without any tape or barricades, they had sufficient resources available to make the area safe, as it were.  They had moved on other pedestrians; they had moved on other cars.  So until the time as they left the immediate vicinity of the pipe – they were standing on the opposite side of the road – to attend to this tree that had not fallen down but some of the branches were blocking the road, they were exercising their duty and they were keeping the area safe. 

Now, the Court of Appeal has found that it was reasonable for them to go and look after the tree.  The trial judge said that what they had done, given that they were aware or, as she says in her judgment at about line 45, he – that is Constable Winslow:

accepted that on this occasion what he was required to do was to protect pedestrians and said that he was aware of the fact that a person parking where the plaintiff did was in imminent danger.  However he failed to prevent the plaintiff from parking in that space and alighting from his vehicle I find on the evidence that the officers relegated the safety of persons in the vicinity of the pipe to inconvenience to motorists ‑

should be “caused”, I suppose –

by a fallen tree.

That is the central difference between the trial judge’s judgment ‑ ‑ ‑

FRENCH CJ:   It is a pretty fine second guessing of practical judgments that you made at the time, is it not?

MS NORTON:   Your Honour, it may have been if the police officers had said they did not have the resources.  But the police officers said they had the resources to make the area safe and they were aware that the tree posed nothing more than an inconvenience to traffic, whereas this pipe – and it is not a gutter pipe like we see on modern buildings.  This was very heavy pipe that could cause very serious injury to someone.  It injured Mr Tyszyk quite seriously, but it could have been a much more serious injury.

So, in those circumstances, what the trial judge was doing was not an impermissible exercise in saying the police should have allocated their resources here rather than there.  The resources were there.  They were controlling the situation and then they made a decision to go and look after something else which was not posing a danger to life or limb.  In those circumstances it is a matter that, in our submission, the Court can review and say whether that was right or wrong.  It is not really in hindsight because the police officers admitted they knew as soon as they got there that this was a danger to anybody in the vicinity.

FRENCH CJ:   You are more or less saying that we should, as it were, wade into the breach issue because there is a gleaming special leave question beyond which is the duty question.

MS NORTON:   Yes, your Honour, that is right.  I think I am bound to say that, your Honour.  It is an interesting question but we do not get there unless this – also, to be brutally honest, if we are going to lose on breach, I would rather lose at this position than further on, after.  A very interesting discussion, but we are here and we take our chances.  I do not think there is anything further I can say, your Honours.

FRENCH CJ:   Thank you.  We will not need to call on you, Mr O’Meara.

In the Court of Appeal one of its judges, Justice Campbell, found there was no duty of care.  All members of the court found that, assuming there was a duty of care, it had not been breached.  There is no reason to doubt the correctness of their conclusion as to breach in the circumstances of this case.  Special leave will be refused with costs.

AT 9.49 AM THE MATTER WAS CONCLUDED