Joachim Lavin v The Commissioner of Police [2007] NSWDC 286

Reported Decision : 6 DCLR (NSW) 127

New South Wales District Court

CITATION: Joachim Lavin v The Commissioner of Police [2007] NSWDC 286

HEARING DATE(S): 16 July 2007 EX TEMPORE JUDGMENT DATE : 16 July 2007

JURISDICTION: Civil (Residual Jurisdiction)

JUDGMENT OF: Neilson DCJ at 1

DECISION: Decision of the Commissioner of Police set aside; Suffering by the plaintiff of injuries were caused by his having been hurt on duty; Defendant to pay plaintiff's costs; Exhibits to be retained

CATCHWORDS: Sergeant of Police travels from his home (whilst off duty) to pick up his daughter from her workplace - On the return journey to his home his vehicle is "tail-gated" by another motorist for a considerable distance - Plaintiff stops his car and other motorist ("offender") pulls up behind him - Plaintiff leaves his vehicle to talk to offender but offender drives off, narrowly avoiding a collision with the plaintiff - Plaintiff had formed view that offender had committed offences - Plaintiff gives chase to offender's vehicle but after a distance decided to give up the pursuit - Whilst slowing down to make turn to return to his original route back home, a malfunction of vehicle causes plaintiff to lose control of his vehicle which collides with another vehicle on incorrect side of carriageway for plaintiff - Whether personal injury suffered by plaintiff was caused by his having been "hurt on duty" as required by Police Regulation (Superannuation) Act 1906 - Whether plaintiff was "on duty" at time of motor vehicle accident - Held: From the time that the plaintiff formed the view that the offender had committed a criminal offence and the plaintiff did something to see to the offender's arrest, he was acting in the course of his duty - The plaintiff's duty came to an end either when (a) he returned to the route he had originally embarked upon, or (b) he returned to the place at which he interrupted his original journey i.e. the place at which he had stopped. It was unnecessary to decide which was the proper test as the plaintiff had not done either of those things at the time he lost control of his vehicle - Police Act 1990 sections 6 and 201 - NSW v Fahey [2007] HCA 20 - DPP reference No 1 of 1993, The Queen v K (1993) 118 ALR 596 - DPP v Gribble [2004] NSWSC 926 - Workers Compensation Act 1987 section 9A - Stanton-Cook v TAFE Commission (1999) 17 NSWCCR 632 - Held: Plaintiff was not on a "periodic journey" within section 10 of the Workers Compensation Act 1987 - Cunnigham v Tobin and Ors t/as Stingray Cafe (2001) 21 NSWCCR 524 - Hatzimanolis v ANI Corporate Ltd (1992) 173 CLR 473 - Mills, Workers Compensation NSW page 1761 - [Notice of Appeal filed]