State of New South Wales v Brown [2003] NSWCA 21

New South Wales Court of Appeal

CITATION : State of New South Wales v Brown [2003] NSWCA 21 HEARING DATE(S) : 9 October 2002 JUDGMENT DATE : 14 February 2003

JUDGMENT OF : Handley JA at 1; Giles JA at 41; Hodgson JA at 42 DECISION : Appeal allowed with costs - orders made

CATCHWORDS : NEGLIGENCE - police - duty to rescuer - no question of principle State of New South Wales PARTIES : v Brian A Brown By his Tutor Dulcie Brown FILE NUMBER(S) : CA 40052/02 COUNSEL : B H K Donovan QC/S C Finnane (Appellant) G R Petty SC/R E Quickenden (Respondent) SOLICITORS : I V Knight, Crown Solicitor (Appellant) J J Lees, Gorokan (Respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT DC 70071/98 FILE NUMBER(S) : LOWER COURT English DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

40052/02 DC 70071/98 HANDLEY JA GILES JA HODGSON JA 14 February 2003 STATE OF NEW SOUTH WALES v BRIAN A BROWN by his Tutor Dulcie Brown

NEGLIGENCE – police – duty to rescuer - no question of principle

A van containing an adult woman and her four children left the road and collided with a power pole. The woman was thrown from the vehicle and became unconscious. Rescuers safely removed the three eldest children and the mother was taken to hospital. However, despite inspecting the interior the police did not discover a 7 weeks old baby who had not been secured in a baby capsule and was lying injured and unconscious under the rear seat obscured by the disarray within. When the police became aware from hospital records that the woman had recently had another child they passed a message to the driver of the tow away vehicle carrying the damaged van asking him to check for a young baby inside. He had been working as a tow truck operator for 18 to 19 years. As a result of finding the injured baby the driver suffered a psychiatric illness and sued the police for negligence. The trial Judge upheld this claim and awarded damages.