State of NSW v Tyszyk [2008] NSWCA 107

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 2008

JUDGMENT OF: Mason P at 1; Giles JA at 2; Campbell JA at 15

(1) Appeal upheld. (2) Verdict and judgment for the Respondent set aside. DECISION: (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 – whether open to litigant who was a defendant in the court below to contend for the first time on appeal that an essential element of the plaintiff's cause of action is not made out - PRACTICE AND PROCEDURE – expert's reports – District Court – rules of court relating to admissibility of expert's reports – where trial judge refused to permit tender of expert's reports without reasons – where reports cross-examined on – where reports in plaintiff's possession for nearly a year – where defendant notified plaintiff of intention to tender reports – lapse of reasonable time for plaintiff to deal with tender of reports – lack of identifiable prejudice – whether exceptional circumstances - WORDS AND PHRASES – "exceptional circumstances"