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" Civil Liability Act 2002 Corporations Act 2001 (Cth) Justices of the Peace Act 1361 Law Enforcement (Powers and Responsibilities) Act 2002 Metropolitan Police Act 1829 Ordinance for the Preservation of the Peace 1242 Police (Special Provisions) Act 1901 Police (Sydney) Act 1833 Police (Towns) Act 1838 LEGISLATION CITED: Police Act 1990 Police Offences Act 1901 Police Regulation 2000 Police Regulation Act 1899 Police Service Act 1990 Road Transport (General) Act 1999 State Emergency and Rescue Management Act 1989 Statute of Winchester Strata Schemes Management Act 1996 Uniform Civil Procedure Rules 2005 CATEGORY: Principal judgment Ackers v Taylor [1974] 1 WLR 405 Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 Alexandrou v Oxford [1993] 4 All ER 328 Ansett Transport Industries (Operations) Pty Ltd v State of New South Wales (1998) 28 MVR 145 Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn v Ashrafinia [2001] NSWCA 243; (2002) Aust Torts Reports 81-636 Attorney-General for New South Wales v Perpetual Trustee Co (Limited) [1955] HCA 9; (1955) 92 CLR 113 Bell v Nigro (1898) 15 WN (NSW) 28 Betts v Stevens [1910] 1 KB 1 Bhattacharya v State of New South Wales & Anor [2003] NSWSC 261 Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 Cartwright v McLaine & Long Proprietary Limited [1979] HCA 16; (1979) 143 CLR 549 Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1 D'Orta Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 Dorset Yacht Co Ltd v Home Office [1970] AC 1004 Duncan v Jones [1936] 1 KB 218 Edwards v Raabe [2000] VSC 47; (2000) 117 A Crim R 191 Enever v R [1906] HCA 3; (1906) 3 CLR 969 Glasbrook Bros v Glamorgan County Council [1925] AC 270 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 Greenwood v Papademetri [2007] NSWCA 221 Hamilton v Halesworth [1937] HCA 69; (1937) 58 CLR 369 Haynes v Harwood [1935] 1 KB 146 Hill v Chief Constable of West Yorkshire [1989] AC 53 Hinchcliffe v Commissioner of Police of the Australian Federal Police [2001] FCA 1747; (2001) 118 FCR 308 Horne v Coleman (1929) 46 WN (NSW) 30 Hunter Area Health Service v Presland [2005] NSWCA 33; (2005) 63 NSWLR 22 Innes v Weate (1984) 12 A Crim R 45 Jobling v Blacktown Municipal Council (1969) 1 NSWR 129 Jovic v Lamont [2007] NSWCA 47 Knightly v Johns [1982] 1 WLR 349 Lansbury v Riley [1914] 3 KB 229 Ludwig v Public Trustee [2006] NSWSC 890; (2006) 170 A Crim R 460 McConnell v Chief Constable of the Greater Manchester Police [1990] 1 All ER 423 CASES CITED: McPhersons Pty Ltd v Eaton [2005] NSWCA 435; (2005) 65 NSWLR 187 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 New South Wales v Godfrey [2004] NSWCA 113 New South Wales v Heins [2005] NSWCA 258 New South Wales v Klein [2006] NSWCA 295 New South Wales v Paige [2002] NSWCA 235; (2004) 60 NSWLR 371 Nicholson v Avon [1991] 1 VR 212 Parkin v Norman; Valentine v Lilley [1983] QB 92 Percy v Director of Public Prosecutions [1995] 3 All ER 124 Perre v Apand Pty Ltd [1999] HCA 36; (1997) 198 CLR 180 R v Chief Constable of the Devon and Cornwall Constabulary, ex parte Central Electricity Generating Board [1982] QB 458 R v Howell [1982] QB 416 R v Lushington; ex parte Otto [1894] 1 QB 420 R v Metropolitan Police Commissioner; ex parte Blackburn [1968] 2 QB 118 R v Sandbach; ex parte Williams [1935] 2 KB 192 R v Van Bao Nguyen [2002] NTSC 38; (2002) 139 NTR 15 Rice v Connolly [1966] 2 QB 414 Ridis v Strata Plans 10308 [2005] NSWCA 246; (2005) 63 NSWLR 449 Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242 Rush v Commissioner of Police [2006] FCA 12; (2006) 150 FCR 165 Smith v Chief Constable of Sussex Police [2008] EWCA Civ 39 State of New South Wales v Kuru [2007] NSWCA 141; (2007) Aust Torts Reports 91-893 Sullivan v Moody; Thompson v Connon [2001] HCA 59; (2001) 207 CLR 562 Thomas v Sawkins [1935] 2 KB 249 Thompson v Vincent [2005] NSWCA 219; (2005) 153 A Crim R 577 Thomson v C (1989) 95 FLR 116 Ticehurst v Skeen (1986) 3 MVR 307 Tomarchio v Pocock [2002] WASCA 156 Volman (t/as Volman Engineering) v Lobb [2005] NSWCA 348 Wilson v State of New South Wales [2001] NSWSC 869; (2001) 53 NSWLR 407 Wringe v Cohen [1940] 1 KB 229 Wyong Shire Council v Shirt (1980) 146 CLR 40 X (Minors) v Bedfordshire County Council [1995] 2 AC 633 Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 Zalewski v Turcarolo [1995] 2 VR 562 T Plucknett, A Concise History of the Common Law, 5th ed (1956) Butterworths at 93. TA Critchley, A History of Police in England and Wales, revised edition (1978) Constable and Company Ltd at 1-9 A History of Police in England and Wales 1900 1966 in (1968) 84 LQR 560 A Harding, A Social History of English Law (1966) Penguin at 15 TEXTS CITED: H Potter, An Historical Introduction to English Law and its Institutions, 3rd ed (1948) at 343 Halsbury's Laws of England, 4th ed, vol 11, par 108 K Milte & T Weber, Police in Australia (1977) Butterworths at 14–16 C Stephenson and F Marcham, Sources of English Constitutional History (1938) George G Harrap & Co Ltd at 139-140 Translation from the Norman French from O Ruffhead, Statutes at Large, new edition (1786) State of New South Wales (Appellant/First Cross-Respondent) PARTIES: John Tyszyk (Respondent/Cross-Appellant) Kanimbla Hall Limited (Second Cross-Respondent) FILE NUMBER(S): CA 40747/06 JE Marshall SC; SE McCarthy (Appellant/First Cross-Respondent) COUNSEL: S Norton SC; PN Khandhar (Respondent/Cross-Appellant) GA Laughton SC (Second Cross-Respondent) Crown Solicitor's Office (Appellant/First Cross-Respondent) SOLICITORS: Bryden's Law Office, Liverpool (Respondent/Cross-Appellant) McCullough & Buggy, Sydney (Second Cross-Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 952/05 LOWER COURT JUDICIAL OFFICER: Truss DCJ LOWER COURT DATE OF DECISION: 27 October 2006 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40747/06 DC 952/05 MASON P GILES JA CAMPBELL JA 26 MAY 2008 STATE OF NEW SOUTH WALES v JOHN TYSZYK Judgment 1 MASON P: I agree with Giles JA. 2 GILES JA: The facts and the questions in the appeal and cross-appeal are described in the reasons of Campbell JA, which I have had the benefit of reading in draft. In my opinion, the appeal should be upheld and the cross-appeal should be dismissed. I agree with his Honour's reasons for dismissal of the cross-appeal. Taking advantage of his Honour's reasons, I explain without undue repetition why I consider that the appeal should be upheld. 3 I assume, without deciding, that the constables owed to the respondent a duty to take reasonable care to protect him from injury from the dangling downpipe. That statement of the duty of care may impermissibly give the duty of care too detailed a content, see McPhersons Pty Ltd v Eaton [2005] NSWCA 435; (2005) 65 NSWLR 187 at [3] – [13] per Mason P, but the content as stated is appropriate to the facts and allows attention to be focussed on the question of breach. 4 Under common law principles breach should be determined according to the well-known passage in the judgment of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8, modified to include in the constables' conduct their inaction. Would a reasonable person in the constables' position have foreseen that the conduct involved a risk to the respondent or a class of persons including the respondent? If so, what would the reasonable person have done by way of response to that risk? And - "The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position." 5 The Civil Liability Act 2002 applied to the respondent's claim for damages, and accordingly the general principles stated in s 5B came into play. According to those principles a person is not negligent in failing to take precautions against a risk of harm unless (a) the risk was foreseeable, meaning a risk of which the person knew or ought to have known; (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions (s 5B(1)). In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider, amongst other relevant things, (a) the probability that the harm would occur if the care were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; and (d) the social utility of the activity which creates the risk of harm (s 5B(2)). On the facts in the present case, there is no occasion to explore any differences between the s 5B principles and the common law principles. 6 The reasonable person would have foreseen that failure to take steps to prevent the respondent or other persons from being where the dangling downpipe might fall on them involved a risk to them. The constables did foresee a risk. As the trial judge said at [55], in sufficient recognition of the principles, the question was "whether or not the officers failed to take reasonable precautions to protect the plaintiff from danger". 7 The trial judge answered the question - "60. When it was suggested to the Constables that at least one of them ought to have stood at the intersection with Tusculum Street to prevent cars and pedestrians from entering Constable Winslow said that he would not stand on the roadway without a vest which is part of standard operation procedures. Constable Elliott said that more than one officer would be needed to stop traffic. However, this was an emergency situation and they were on a narrow one way suburban street, not a multi-laned highway. It was also broad day light. 61. Constable Winslow said in evidence that officers are required to attend a job and to assess it. He also said that the police never know what they are going to until they get there. He said that he was used to according priorities at scenes to which he was called. He 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 by a fallen tree. 62. For these reasons I find that the first defendant breached the duty of care owed to the plaintiff. I am satisfied that the risk of injury was foreseeable, was not insignificant and that a reasonable person in the officers' position would have taken the precautions which they failed to take." 8 The precautions which the constables failed to take were identified at [61] in terms of preventing the respondent from parking where he did and getting out of the truck. From [60], this at least took up failure to stand at the intersection with Tusculum Street to prevent cars and pedestrians from entering. Did it go further, and include failure to give a warning to the respondent as he parked, whereby he would not have parked or would not have got out of the truck? 9 I agree with Campbell JA that the trial judge did not find that Constable Winslow did not give the warning he said he gave. It is unfortunate that this was left rather up in the air, and I will assume in favour of the respondent not only that a warning did not come to the respondent's ears but also that, because Mr Warner denied any gesturing or calling out prior to the accident, the trial judge did not accept Constable Winslow's evidence of giving a warning and Constable Elliott's evidence of seeing him move towards the truck and have a conversation. That assumption, however, does not mean that the constables did nothing; it leaves at the least the respondent's evidence that Constable Winslow said words to the effect that they were "just coming over to warn you"; that is, that the constables reacted to the respondent parking where he did with a view to warning him, even if on the assumption I have made the warning was not achieved. 10 The risk of injury from the downpipe falling and the probability of its occurrence were not insignificant. However, occupants of vehicles driving down Hughes Street would reasonably be seen as not at risk, and further, the constables had the responsibility, a real one in the performance of their general function of providing thoroughfare, of sufficiently removing the fallen tree. I see no reason why the precautions which a reasonable person would take were to block off Hughes Street at the intersection of Tusculum Street, for those reasons and also because the constables' evidence that regard to their own safety precluded that course should have been accepted. I respectfully do not agree with the basis on which the trial judge considered that the constables failed to take precautions. 11 Any need for action arose if a vehicle in Hughes Street progressing beyond the intersection with Tusculum Street went to park in the vacant kerbside area, so that an occupant might get out and be exposed to injury if the downpipe fell. The constables had to balance the need to deal with the fallen tree with the prospect of a vehicle doing what the truck did and an occupant getting out as the respondent did. The time frame was very short, "at the most thirty seconds" (at [45]), between the truck pulling up and the downpipe falling. There was no finding of how much less than thirty seconds – it could have been only a few seconds. The timing of the truck entering Hughes Street beyond the intersection with Tusculum Street and pulling up in the kerbside space was not found, but in the ordinary course there would be little time involved. The constables were reasonably occupied with the fallen tree, and there was little time for them to react to the respondent parking where he did and move to warn the occupants of the truck of the danger from the dangling downpipe. They did react with a view to warning. Even on the assumption earlier made, in my opinion it was not established that the constables failed to take the precautions a reasonable person would have taken. 12 To the extent that it was argued that one of the constables should have stood at the vacant kerbside to stop vehicles parking in that area and in that manner prevent the respondent parking where he did, which I do not think was a finding made by the trial judge, I do not accept that there was a failure to take reasonable precautions in that respect. Standing too close to the dangling downpipe would place the constable at risk, and in any event the constables were reasonably dealing with the fallen tree. It was sufficient, in my opinion, that they be aware of a vehicle pulling into the vacant kerbside space and act promptly with a view to warning the occupants of the dangling downpipe. It was not established that they failed to do so. 13 For these reasons, in my opinion, breach of the assumed duty of care was not established. 14 I agree with the orders proposed by Campbell JA. 15 CAMPBELL JA: Nature of the Appeal 16 The Respondent was a furniture removalist. He parked his truck at a street kerb adjacent to an apartment building. Almost immediately after he stepped out of his truck he was hit on the shoulder by a piece of downpipe that fell from the building. The downpipe had been dangling from the building for some time before that, and two police officers were at the scene, having been called there by a person who reported the dangling downpipe. 17 The Respondent sued the State of New South Wales, alleging that police for whom the State was vicariously liable had breached a duty of care owed to him. He also sued the owner of the apartment building ("the Building Owner"), alleging that the damaged state of the downpipe was attributable to its negligence. 18 In the District Court the learned trial judge upheld the Respondent's claim against the State, and dismissed the claim against the Building Owner. The State appeals against that decision, disputing the finding of negligence, challenging the trial judge's assessment of general damages, and challenging the refusal of the trial judge to permit the tender of two particular medical reports. 19 The Respondent cross-appeals against the Building Owner alleging it ought have been found liable for the injury, and against both the State and the Building Owner alleging that the damages found by the trial judge are inadequate. The Building Owner, by a Notice of Contention, seeks to support the trial judge's dismissal of the case against it on a ground different to that relied on by the trial judge. The Trial Judge's Factual Findings 20 Many matters of fact were not disputed at the trial. There was no dispute that the Respondent had been struck by a length of downpipe between 6m and 10m long that fell from the building owned by the Building Owner. The accident occurred on the afternoon of Saturday, 13 November 2004. At that time the weather was "very windy and at intervals there were gusts of considerable force" (judgment at [26]). It had rained very heavily the previous evening, but was not raining at the time of the accident. 21 The accident occurred in Hughes Street, Potts Point. Hughes Street runs in an east-west direction, from Macleay Street at its eastern end to Victoria Street at its western end. It is a one-way street, in which the traffic travels from the Macleay Street end to the Victoria Street end. Part way along its length Tusculum Street (which runs in a north-south direction) joins it from the north, creating a T-intersection. From the northern end of Tusculum Street Manning Street runs in an east-west direction to connect with Macleay Street. 22 The building owned by the Building Owner is on the corner of Tusculum and Hughes Street, and on the western side of Tusculum Street. 23 Parking is permitted on the northern side of Hughes Street. The carriageway in Hughes Street is, after allowing for the parking, wide enough to carry only a single lane of traffic. 24 The vehicle the Respondent was driving immediately before the accident was a pantechnicon some 9m long. The plaintiff parked his vehicle on the right hand side in Hughes Street immediately adjacent to the Building Owner's building. It was possible for him to park on the right hand side of Hughes Street because of it being a one-way street. 25 The two police officers who were at the scene at the time the Respondent was injured were Constable Stephen Winslow and Constable Renae Elliott. They came to be at the scene because at 13:07pm an officer at the Kings Cross Police Station received a telephone call from a member of the public stating that a downpipe was loose at the location and about to fall on someone walking past. 26 Though it had been argued at the trial that the police on duty at the station had responded too slowly to that telephone call, the only negligence that the trial judge found was negligence of the two police officers who came to the scene. The Respondent does not now argue that the response to the telephone call was too slow. 27 The message about the dangling pipe was passed on to Constables Winslow and Elliott. They acknowledged receipt of the message at 13:25pm. They were engaged in other police duties at the time. They arrived at the scene where the accident later occurred at 13:57pm, on foot. They came without any barricades, or tape. Constable Winslow said that he anticipated that the council would bring barricades when they attended. 28 At 14:00pm they radioed a request that the council attend. A male person appeared soon after this, said he was from the building and that he would contact the building manager to have him secure the pipe. Constable Winslow then cancelled the call regarding the council, at 14:08pm. 29 After the police officers arrived at the scene, a tree on the southern side of Hughes Street, a little to the west of the downpipe, came down and fell across Hughes Street, blocking the single lane along which traffic could flow. A message from the constables to the Kings Cross Police Station at 14:08pm reported that the tree was down. 30 After the tree fell, the Respondent drove his truck along Hughes Street, and parked at the kerb immediately adjacent to the building. While the trial judge said it was "about 2 pm" when the Respondent drove into Hughes Street, it is apparent from other more precise times of events that the judge found that the "about 2 pm" contained a significant measure of approximation. The Respondent was intending to deliver some furniture to a customer who lived nearby. The Respondent was accompanied by his offsider, Mr Ray Warner. The trial judge found (at [28]): "Whilst Mr Warner went to check that the customer was at home the plaintiff alighted from the vehicle, took one step and whilst he walked to the rear of the truck he looked up and said he saw a pipe hanging off the building immediately above him, that it was swinging from side to side and the bottom was about 8 to 10 feet from the ground. Almost immediately the pipe came away from the building and started to fall. The plaintiff tried to get out of the way but it struck him in the area of the left scapula and knocked him to the ground." 31 The judge found that the time between the vehicle pulling up and the pipe coming down was "at the most thirty seconds". There was no finding about the minimum time that had elapsed between the vehicle pulling up and the pipe coming down. The Respondent estimated an extremely short time: "Q. Doing the best you can in terms of trying to identify the length of time between when you got out of the truck and when you were hit by the downpipe, it's fair to say isn't it, that only two or three seconds passed? A. Possibly. Q. And it's also in order that the court can understand the context of how this occurred that between when you pulled up in your truck and when the downpipe hit you no more than 30 seconds passed? A. That would be pretty fair to say. Q. Because there was no sitting around in the truck, was there, you parked the truck? A. No, no, no. Q. And within a matter of seconds you got out? A. Yes. Q. And within another two, three seconds of you being hit by the pipe the male police officer had come around the back of the truck, hadn't he? A. Yes." 32 Constable Winslow in chief estimated the time between the Respondent's truck pulling in and the downpipe coming down at 15-20 seconds. He gave the following evidence in cross-examination: "Q. There was 15 to 20 seconds from the time the truck stopped until the time the pipe fell, correct? A. Yeah. Q. It was almost instantaneous that the man got out and the pipe fell wasn't it? A. In three seconds or so. Q. Well that leaves you 12 to 17 seconds to take those steps and shout out as loud as you can doesn't it? A. Could of. Q. But you didn't? A. No the driver didn't get out straight away. Q. So what did you guess that maybe he had heard you if he didn't get out straight away? A. I assumed he heard me because he didn't get out straightaway." 33 The police officers went to the Respondent's assistance and asked him on a couple of occasions if he was all right. He said he was. They observed some abrasions on his left shoulder. 34 The police officers reported to the police station at 14:13pm that "wind has just blown down downpipe". A notation in the police records, that had no specific date or time attached to it, but that Constable Elliott verified on 15 November 2004, reads: "Whilst we were at location drainpipe fell to ground. No further action required. Building manager on site." They left the scene at 14:13pm. 35 The trial judge found that the pipe fell at 14:11pm. 36 In para [37] of her judgment the trial judge records that: "The constables gave evidence that: (a) when they arrived they observed that the downpipe was loose and swinging in the wind. From time to time it hit against the building and made a loud banging noise. They both said that the pipe was about 10 metres off the ground. … (c) Constable Winslow said they stopped a couple of pedestrians from walking on the footpath near the downpipe and stood on the footpath opposite side of the road for safety. Constable Elliott said she ushered a couple of pedestrians to the other side of the road as they could not reach the pipe. (d) they decided it was a job for the council or SES and Constable Winslow sent a radio message requesting that the council attend. Constable Elliott went into the building and took down the mobile telephone number for the building manager. (e) Constable Elliott said that when they arrived a vehicle was parked immediately adjacent to the pipe. A female appeared, got into the car and drove off without them speaking to her. Constable Winslow said he moved on a vehicle which attempted to pull into this space. (f) a male person appeared, said he was from the building and that he would contact the building manager to have him secure the pipe. Constable Elliott believed this to be Mr Hurst, but having regard to his evidence I consider it more likely that it was someone else from the building. Constable Winslow then cancelled the call regarding the council. (g) in the meantime a tree adjacent to the footpath near to where they were standing fell blocking Hughes Street. It had a lot of branches and leaves and the officers dragged it off the road using a Leatherman to remove the larger branches. There was also a discussion with a resident about the tree. (h) while this was happening the plaintiff pulled up in his truck immediately adjacent to the pipe. (i) he got out and was walking towards the rear of the truck when there was a strong gust of wind and the pipe came down. (j) on the evidence the time interval between the plaintiff pulling up and the pipe coming down was less than 30 seconds." 37 The trial judge did not say expressly whether or not she accepted that evidence. 38 Reasons for judgment ought make clear what the judge finds the facts to be. Recording the evidence a witness gave, without making clear whether the judge accepts or rejects that evidence, is not enough to satisfy a trial judge's duty to make findings of fact. 39 In the present case, even though the trial judge did not expressly say that she accepted the evidence she recorded in para [37], reading the judgment as a whole leads to the conclusion that she did accept it. A strong indication that that is so is that, in para [38] she goes on to say: "The principal and what I consider to be a significant point of difference between the evidence of the plaintiff and Mr Warner on the one hand and the police officers on the other is whether a warning was given to the plaintiff." and then to discuss the various pieces of evidence relating to whether a warning was given to the plaintiff. By contrast, there is no recording and discussing of evidence contrary to that recorded in para [37] of the judgment. Indeed, apart from evidence of the Respondent and Mr Warner that they did not see a tree blocking Hughes Street (which might be explicable if they arrived after the tree had been at least substantially removed from the roadway) there was no evidence to the contrary. 40 Another indication that she accepted the evidence set out in para [37] is that at [57] the trial judge, in a part of the judgment where she is clearly expressing her own views, stated that the police constables acknowledged that it was a dangerous situation by (inter alia) "warning a couple of pedestrians". Another is that in a portion of a judgment where the judge is clearly expressing her own views, she says at [45]: "I also have regard to the very short timeframe (at the most thirty seconds) between the vehicle pulling up and the pipe coming down." 41 I do not accept the submission of Ms Norton SC, counsel for the Respondent, that para [37] should not be regarded as recording facts that the judge accepted. 42 One other fact relevant to the timing of events, concerning which the trial judge made no express finding, was how the time of removal of the tree blocking Hughes Street related to the time that the Respondent pulled his vehicle into the parking spot. I have mentioned that the Respondent gave evidence that he did not see a tree blocking Hughes Street as he drove down it. Constable Elliott gave evidence that Constable Winslow, "… sawed some of the bits off while I held the tree back and tried to push it back, so we were able to remove some of the larger branches and then be able to move the tree off the road. Q. What was the next thing that happened? A. The next thing that happened is that a large removalist truck has pulled into – obviously, well, moved in just underneath where the downpipe was swinging and I was just moving the last bits of the tree away and Steve was actually facing towards where the truck had come in." 43 In chief, Constable Elliott said: "Q. … Can you tell the court why you found it necessary to take the action you took with respect to the tree? A. Well, the tree was basically blocking the flow of traffic which is – as far as a policing perspective, it was more important for a free flow of traffic at that point. Had we have not fixed the tree, we would have had a back load of cars up the one-way street, so I guess we prioritised, you know, I suppose our duties at the time and that was more threatening than, you know, we couldn't physically do anything about the downpipe." 44 Constable Elliott said, "… I'd finished putting the tree to the side and I turned around and I suppose it was at that point, that I heard a clang …" The clang was the downpipe falling. On this evidence the most likely situation is that the tree was no longer blocking Hughes Street at the time the Respondent drove down it and parked, but the task of removing all the debris resulting from the tree fall was not complete. Whether a Warning was Given to the Respondent 45 The trial judge records the conflict of evidence on this topic as follows (at [39]-[41]): "The plaintiff gave evidence that as he was pulling up he observed two police officers and another person standing on the footpath on the opposite side of the street looking up and in the direction of the building. He said that the officers glanced towards him but did not approach him nor say anything to him or to Mr Warner, whose evidence was to a similar effect. The plaintiff also gave evidence that after he had been struck Constable Winslow said words to the effect of We were just coming over to warn you. We've just moved a car from there. After the pipe came down Mr Warner recalled one of the police officers say that they had just moved a car from where they had parked but he denied that they had gestured or called out to him before the accident. According to Constable Winslow when the pantechnicon pulled up the passenger's window was open and he said to the passenger words to the effect hey guys, you can't park there. The downpipe is about to come down and he pointed up toward it raising his right arm. He said that he then observed the passenger leaning forward to the windscreen and look up at the building and at that point the driver then got out of the truck. Constable Elliott said she was still attending to the tree and observed Constable Winslow move towards the truck and have a conversation but she did not hear what he said. She said she saw him indicate with his left hand and saw the passenger look up." 46 After finding that the evidence of Constable Elliott was "more credible" than that of Constable Winslow, and making some other observations relevant to resolving the conflict of evidence, her finding was (at [44]-[45]): "In my view the plaintiff's version of what occurred had a certain ring of truth particularly his evidence that Constable Winslow said that a vehicle had been moved on before he arrived, as the plaintiff would have had no way of knowing this. Even if the court were to accept the police evidence, at its highest, it establishes that Constable Winslow warned Mr Warner about the pipe and that he (Mr Warner) looked up at it. There is no evidence that the plaintiff heard or was likely to have heard the conversation between the officer and Mr Warner nor that it was conveyed to him by Mr Warner. I also have regard to the very short time frame (at the most thirty seconds) between the vehicle pulling up and the pipe coming down. I am also unable to accept what is urged by the defendants namely that having heard a police officer's warning that he should not park in that spot because a pipe was about to come down, the plaintiff acted in a foolhardy fashion and avoided both the direction to move on and the warning. From my impression of the plaintiff I consider it highly unlikely that he would have done so." 47 Mr Marshall SC, counsel for the Crown, submits that the trial judge made no finding that the warning was not given. I think that is the better view of the reasons for judgment. To say a witness's evidence has "a certain ring of truth" is not the same as finding it is actually true. As well, the evidence that "particularly" had the "certain ring of truth" was the evidence that Constable Winslow said that a vehicle had been moved on before he (the Respondent) arrived – the judge does not say anything about the Respondent's evidence that the police officers did not say anything to him while he was parking or that when Constable Winslow came over Constable Winslow also said "we were just coming over to warn you" also having the "certain ring of truth". A statement "we were just coming over to warn you" is at least consistent with no prior warning having been given, though it is less than a clear admission that no prior warning had been given, and is also consistent with a prior warning having been given but apparently not heeded. The balance of para [44], beginning "Even if the court were to accept the police evidence …" is expressed in the subjunctive. It states the judge's view about what the situation would be if the court accepted the police evidence, but does not say whether she does, or does not, accept it. 48 The significance of the first sentence of para [45] is, it seems to me, to emphasise the very short time the police had available in which to give the warning. The balance of para [45] of the reasons is a finding that the plaintiff was unlikely to ignore a warning that he had heard. That finding – which I accept – is consistent with no warning being given, though also consistent with a warning being given but not heard. Even though she regarded Constable Elliott as a preferable witness to Constable Winslow, on Constable Elliott's account Constable Winslow still said something to the passenger before the Respondent got out of the truck. In the result, there is no finding that the warning that Constable Winslow said he gave was not given. 49 An additional reason for reading the reasons for judgment in that way is that the evidence of the plaintiff about the officers not approaching him or saying anything to him related to the time "as you parked your van", not later. As well, the following evidence was given in cross-examination: "Q. I want to suggest to you that as the male police officer spoke those words to you and your offsider, he raised his hand in the air and pointed up in the direction of the downpipe. Do you accept that? A. I don't know I didn't see him. I couldn't see him from where I was." 50 When the substance of that question was put again the Respondent's answer was: "A. I was no longer looking in his direction because there was no need to but I wouldn't have been able to see him from where I was anyway further down the-- Q. It's certainly the case isn't it that the passenger was in a better position to see the police officers than you? A. He was the only one of the two of us that could've seen." 51 As well, one needs to bear in mind that it was the Respondent who was driving the truck, and that when he was in the process of parking it at the right-hand kerb of the street he would not have had the police officers on the other side of the street under observation for the whole time. The Respondent's denial that the police officers said anything to him needs to be understood as being that, so far as he was aware, they did not say anything to him. Duty of Care 52 By its Amended Defence the State denied the existence of any duty of care to the Respondent. Mr Marshall (who did not appear below) accepts that the only argument put concerning duty of care in the court below was to the effect that there was no duty of care because the police were engaged in an investigation. That argument was rejected by the trial judge, on the basis (with respect obviously correct) that any investigation that the constables engaged in was over virtually as soon as they arrived and had established that there was indeed a dangling downpipe, and its location. 53 On the appeal Mr Marshall put a much more extensive argument than had been put below concerning why in his submission the police officers owed no duty of care to the Respondent. While there are significant restrictions on a litigant taking, on appeal, a point that was not taken below, it is open to a 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, such as a duty of care, is not made out: Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn v Ashrafinia [2001] NSWCA 243; (2002) Aust Torts Reports ¶81-636 at [51]; Jovic v Lamont [2007] NSWCA 47 at [67]-[72]. 54 In considering whether the two constables owed a duty of care to the Respondent I shall start by considering whether a duty of care arises from any of the ways in which the powers and duties of a police officer place that officer in a different position to an ordinary member of the community. The Office of Constable 55 At common law the office of constable was a public office, the holder of which had various functions and responsibilities that the constable exercised on his own responsibility: Enever v R [1906] HCA 3; (1906) 3 CLR 969 at 975-977 per Griffiths CJ, 982 per Barton J, 991-994 per O'Connor J; Attorney-General for New South Wales v Perpetual Trustee Co (Limited) [1955] HCA 9 at [28]; (1955) 92 CLR 113 at 129 per Viscount Simonds. 56 The office of constable is an ancient one. It developed from the Anglo-Saxon method of keeping civil order by the appointment of tithingmen. An Ordinance for the Preservation of the Peace in 1242 (C Stephenson and F Marcham, Sources of English Constitutional History (1938) George G Harrap & Co Ltd at 139-140) required the appointment of constables. The Statute of Winchester, in 1285, provided for the appointment of "watch and ward" constables, and of two "high constables" in every hundred. In 1361 the Justices of the Peace Act differentiated the functions of the Justice of the Peace and the constable, making the constable someone appointed by the Justice of the Peace to assist in keeping the peace. (See K Milte & T Weber, Police in Australia (1977) Butterworths at 14–16; TA Critchley, A History of Police in England and Wales, revised edition (1978) Constable and Company Ltd at 1-9.) 57 Mr Goodhart, in reviewing A History of Police in England and Wales 1900-1966 in (1968) 84 LQR 560 at 560-561 says: "Perhaps the chief heritage that has survived to the present day is the term "constable" which began as the title of a high military officer associated with the royal court but which steadily declined until the end of the 18th century, when it had become that of local officer, usually regarded as a figure of fun. He was the conservator of the peace in a parish or township, subject to the orders of the Crown-appointed justices of the peace. In the towns the constables constituted the Watch. Dogberry and Vere are two of Shakespeare's favourite comic characters. Today it seems to be almost unbelievable that a society, such as England until the 19th century, could have lived a peaceful life virtually without any official police, but the maintenance of the peace was secured in largest part by the efforts of the individual citizen. If there was a riot which could not be controlled by local efforts, then the soldiers were called in. In the middle of the 18th century, however, the situation began to deteriorate as the cities developed, but only tentative steps were taken to control the growing disorder." 58 Those steps were the introduction by Fielding of the Bow Street runners in 1751. In 1829 the Metropolitan Police Act established a new system of organisation for the police in England, but used the old office of constable as the basis for that new method of organisation. 59 The first constables and watchmen in New South Wales were appointed in 1789, and in 1825 a Superintendent of Police for the Colony was appointed (Milte & Weber, op cit at 22-23). This was done without any specific statutory authority beyond the general powers of administration of the Governor – the duties and powers of the office of constable were imported into New South Wales as part of the common law. 60 The first New South Wales statute for regulating the appointment and activities of police was the Police (Sydney) Act 1833 (4 W IV No 7). That Act provided for the appointment of justices of the peace, and continued in section 4: "And be it further enacted That it shall be lawful for the Governor to authorise the said Justices from time to time to nominate a sufficient number of fit and able men as a police force for the said town and port who shall be sworn by one of such Justices to act as constables for preserving the peace and preventing robberies and other felonies and apprehending of offenders as well as for preventing nuisances and obstructions in the said town and port and the men so sworn shall obey all such lawful commands as they may from time to time receive from any of the said Justices for conducting themselves in the execution of their office." 61 It will be seen that this Act stated some of the duties of a constable, but did not attempt to define them exhaustively – many powers and duties of the office continued to arise under the common law. 62 The Police (Towns) Act 1838 (2 Vic No 2) made similar provisions for the appointment of constables "within the towns of Parramatta Windsor Maitland Bathurst and such other towns in the Colony of New South Wales as shall be declared by His Excellency The Governor … to come under the operation of this Act". 63 The statutes under which the police were organised altered during the 19th century. In Bell v Nigro (1898) 15 WN (NSW) 28 Sir Julian Salomons QC put the following argument: "So much of the Act 4 W IV No 7 as deals with the appointment of constables is, no doubt, repealed by 14 Vic No 38 s 30; but by s 5 all constables appointed under it were to exercise all the powers and perform the duties of the constables appointed under the Act which it repealed. The Act 14 Vic No 38 was itself repealed by 16 Vic No 33, which in s 4 contained a similar reservation of the powers conferred on constables under the former Acts. Then 16 Vic No 33 was repealed by 25 Vic No 16, under s 5 of which the police force of the Colony is at present appointed. And by that section, constables under it to have "all such powers, privileges and advantages, and be liable to all such duties and responsibility as any constable duly appointed now has". The powers of constables appointed under the 4 W IV No 7 and 2 Vic No 2, therefore, preserved to the present members of the police force by this unbroken series of enactments." 64 The Chief Justice accepted this argument, saying at 28-29: "It is clear that the constables appointed under 25 Vic No 16 had preserved to them the powers and duties which appertained to those appointed under the old Sydney Police Act and the 2 Vic No 2" 65 The Police Regulation Act 1899 set a new statutory basis for the operation of the police force. It provided: "6(1) The Commissioner may, subject to disallowance by the Governor, appoint so many sergeants and constables of police, of such grades as are specified by rules made under this Act, as he deems necessary for the preservation of the peace throughout New South Wales. (2) Such constables shall … have all such powers privileges and advantages and be liable to all such duties and responsibility as any Constable duly appointed now has or hereafter may have either by the common law or by virtue of any statute now or hereafter in force in New South Wales. 7A(1) It is, and shall be deemed always to have been, the duty of a member of the police force to protect persons from injury or death and property from damage, whether the person is, or the property is, endangered by criminal acts or otherwise. (2) The duty imposed by subsection (1) is in addition to, and does not derogate from, any other power, authority, duty or function conferred or imposed on a member of the police force by or under this or any other Act or by law." 66 Under section 101 of the Police Offences Act 1901 (which is still in force under the name of the Police (Special Provisions) Act 1901) magistrates or justices could in certain circumstances appoint certain people as special constables. Section 103 of that Act conferred upon such special constables the powers, duties and immunities of a constable in the police force: Hamilton v Halesworth [1937] HCA 69; (1937) 58 CLR 369; Jobling v Blacktown Municipal Council (1969) 1 NSWR 129. The continued power to appoint special constables demonstrates that the office of constable has not become completely subsumed in the organisation of the police force. That the constable has discretions and powers simply by virtue of holding the office is further illustrated by the way that a constable can exercise those discretions and powers even when he or she is off duty: Horne v Coleman (1929) 46 WN (NSW) 30. 67 Reorganisation of the police force occurred yet again pursuant to the Police Service Act 1990. Section 119 of that Act repealed the Police Regulation Act 1899. 68 Section 12 established various ranks of police officers, one of which was Constable. Section 13 required a person to take an oath or make an affirmation of office as a police officer in accordance with the regulations before exercising any of the functions of a police officer. Section 14 provided: "In addition to any other functions, a police officer has the functions conferred or imposed on a Constable by or under any law (including the common law) of the State." 69 Though the name of the Act was changed in 2002 to the Police Act 1990, the provisions I have just quoted continued to be the law at the date the Respondent was injured. 70 The Law Enforcement (Powers and Responsibilities) Act 2002 states explicitly a range of powers and responsibilities of police officers. However, section 4 (as in force at the date of the Respondent's accident) provided: "(1) Unless this Act otherwise provides expressly or by implication, this Act does not limit: (a) the functions, obligations and liabilities that a police officer has as a constable at common law, or (b) the functions that a police officer may lawfully exercise, whether under an Act or any other law as an individual (otherwise than as a police officer) including, for example, powers for protecting property. (2) Without limiting subsection (1) and subject to section 9, nothing in this Act affects the powers conferred by the common law on police officers to deal with breaches of the peace." 71 There is nothing in the relevant provisions of that Act to cut down any powers and responsibilities of a constable that might bear upon the present case. 72 Thus, through the chain of statutes that has governed the police force in New South Wales since its inception, the duties and powers attaching to the office of constable under the common law were at no time repealed. Thus, the constables who were present when the Respondent was injured had both the duties and powers of a constable at common law, and also any other duties and powers conferred on them by statute. Police Powers and Duties – Statute 73 Section 6 Police Service Act 1990 provided: "(1) The mission of the Police Service is to have the police and the community working together to establish a safer environment by reducing violence, crime and fear. (2) The Police Service has the following functions: (a) to provide police services for New South Wales (b) to exercise any other function conferred on it by or under this or any other Act (c) to do any thing necessary for, or incidental to, the exercise of its functions. (3) In this section: police services includes: (a) services by way of prevention and detection of crime, and (b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and (c) the provision of essential services in emergencies, and (d) any other service prescribed by the regulations." 74 Section 7 of that Act said: " Statement of values of members of NSW Police Each member of NSW Police is to act in a manner which: (a) places integrity above all, (b) upholds the rule of law, (c) preserves the rights and freedoms of individuals, (d) seeks to improve the quality of life by community involvement in policing, (e) strives for citizen and police personal satisfaction, (f) capitalises on the wealth of human resources, (g) makes efficient and economical use of public resources, and (h) ensures that authority is exercised responsibly." 75 As O'Keefe J said in Wilson v State of New South Wales [2001] NSWSC 869 at [41]; (2001) 53 NSWLR 407 at 416-417, sections 6 and 7 set goals after which each member of the police force is required to strive, but do not impose tortious duties of care owed to individuals in the community to fulfil all or any of the matters there set out. Wood J said in Ticehurst v Skeen (1986) 3 MVR 307 at 317 concerning a somewhat similar provision to section 6 in earlier legislation that it: "… was intended to give statutory recognition to the notion that the duty of police extends beyond the mere enforcement of law and order. It is common experience that they are called out in times of natural and civil disaster, and that they have a highly responsible function to play in the preservation of life and property. This was a somewhat grey area of the law which justified legislative support. So interpreted, the … legislation has a utility in giving statutory recognition to this role, and also protection to those officers who in the bona fide exercise of their duties, in rescue situations and generally, might otherwise become liable for damage or injury arising from their actions." 76 That latter remark referred to legislative provisions that exempted a member of the police force from liability for injury or damage sustained in the exercise in good faith of a power or duty conferred on him by law. 77 Section 186 Law Enforcement (Powers and Responsibilities) Act 2002 empowers any police officer to close any road or road related area to traffic during any temporary obstruction or danger to traffic or for any other temporary purpose, and to prevent the traffic of any vehicles or people within the road or road related area that has been so closed. Definitions of "road" and "road related area" in section 3 of that Act adopt (with a presently irrelevant exception) the definitions of those expressions in the Road Transport (General) Act 1999. That definition of "road related area" includes a footpath adjacent to a road. Thus the two constables involved in the present case had the legal power, but not a duty arising under the statute, to close the footpath. Clearly they did not exercise that power. Indeed, arriving as they did on foot, and without any tapes or barricades, it is hard to see how they could have exercised that power. What is relevant for present purposes is that the case was not argued on the basis that their negligence lay in failing to exercise a power to close the footpath. 78 Additional powers to give directions to people not to enter an area of danger, or to close a footpath, arise under section 60L and 61 State Emergency and Rescue Management Act 1989, but those powers can be exercised only by a "senior police officer", who is defined as being "a police officer of or above the rank of sergeant or a police officer of a class prescribed as being within this definition by the regulations." No such regulation has been promulgated. Thus the two constables involved in the present case were insufficiently senior to exercise those particular powers. 79 These are the only specific statutory powers and duties of police officers that seem to impact on the case. They do not of themselves give rise to a duty of care. Police Powers and Duties – Common Law 80 An indication of the powers and duties of a police officer is provided by the terms of the oath or affirmation of office prescribed by clause 8 of the Police Regulation 2000: "… I will well and truly serve our Sovereign Lady the Queen as a police officer without favour or affection, malice or ill will until I am legally discharged, that I will cause Her Majesty's peace to be kept and preserved, and that I will prevent to the best of my power all offences against that peace, and that while I continue to be a police officer I will to the best of my skill and knowledge discharge all my duties faithfully according to law…" 81 In Thomson v C (1989) 95 FLR 116 Angel J said, at 117: "Courts have sensibly been loath to clothe the ambit of a police officer's duty in specifics. Rather, their duties have always been expressed in the most general of terms." 82 Similarly, Cosgrove J in Innes v Weate (1984) 12 A Crim R 45 at 51 said that a police officer's duty: "… cannot be stated in other than general terms – the range of circumstances in which the duty to act may arise is too wide, too various, and too difficult to anticipate for the compilation of an exhaustive list." 83 However some indication of the duties can be given, though that indication must have the kind of imprecision involved in any statement in general terms. Common Law Duties Concerning Crime 84 A most important aspect of the duties of a constable concerns preventing and detecting crime (Glasbrook Bros v Glamorgan County Council [1925] AC 270 at 277; Thomas v Sawkins [1935] 2 KB 249; Rice v Connolly [1966] 2 QB 414 at 419). Constables' duties concerning crime extend to collecting evidence concerning crime and keeping it for as long as is necessary (R v Lushington; ex parte Otto [1894] 1 QB 420 at 423; Betts v Stevens [1910] 1 KB 1 at 7; Ludwig v Public Trustee [2006] NSWSC 890; (2006) 170 A Crim R 460 at [53]-[55] and cases there cited), enforcing the criminal law (R v Metropolitan Police Commissioner; ex parte Blackburn [1968] 2 QB 118; Rush v Commissioner of Police [2006] FCA 12; (2006) 150 FCR 165 at [91]; Hinchcliffe v Commissioner of Police of the Australian Federal Police [2001] FCA 1747; (2001) 118 FCR 308 at [33]-[35]) and protecting property from criminal injury (Glasbrook v Glamorgan Council at 277; Rice v Connolly at 419). However in the present case there is no suggestion that the activities of the two constables were connected in any way with their powers and duties concerning crime. Common Law Duties Concerning Keeping the Peace 85 Another aspect of the duties of a constable concerns preventing or assisting in preventing disturbances or breaches of the peace: Horne v Coleman (1929) 46 WN (NSW) 30 at 31; Glasbrook v Glamorgan Council at 277; Thomas v Sawkins [1935] 2 KB 249 at 256; Duncan v Jones [1936] 1 KB 218 at 223; Rice v Connolly at 419. The notion of a "breach of the peace" is a multifaceted one, and includes a wide range of actions and threatened actions that interfere with the ordinary operation of civil society. Something of the idea is expressed in A Harding, A Social History of English Law (1966) Penguin at 15: "England was not a land of a single peace but of many, one belonging to each great lord and one to the church. Peace was something precious and almost tangible which went along with a priest or a lord, and which great lords could give to their followers to take with them: in that case peace was often called protection . There could be different values of peace. Long after the idea had grown up that the high roads and then the whole country were in some sense automatically within the King's peace, it remained more heinous to infringe the King's 'hand-given' peace, the peace which the king had explicitly declared. Just as one could injure a man himself, one could injure his peace, by committing a crime in his house, or in his presence, or against his protected servant; and there was a traditional compensation for the breach of his peace." 86 The concept continues to find operation in the office of the justice of the peace, and until recently in the practice of binding over to keep the peace. 87 The medieval origins of the notion of "peace" show a frequent connection with violence – the allegation in a writ of trespass that an action was done "vi et armis and contra pacem domini regis" (with force and arms and against the peace of our lord the King) made that allegation one that could be tried only in the King's court (T Plucknett, A Concise History of the Common Law, 5th ed (1956) Butterworths at 93). H Potter, An Historical Introduction to English Law and its Institutions, 3rd ed (1948) at 343 explains how immediately before the Conquest "the King had a special Peace which was in force everywhere, but this peace only covered deeds of violence done to persons". Potter there also explains how upon the death of Edward I the precedent was established that a King's peace would be proclaimed and enforced immediately upon his succession, and that: "The King's Peace was destined to grow and flourish till it had covered the face of England at all times and in all seasons. When this had come to pass no man committed violence without being liable to a fine at the suit of the King." 88 In R v Howell [1982] QB 416 Watkins LJ, delivering a joint judgment of himself and Cantley and Hollings JJ went so far as to say, at 426: "… we cannot accept that there can be a breach of the peace unless there has been an act done or threatened to be done which either actually harms a person, or in his presence his property, or is likely to cause such harm, all which puts someone in fear of such harm being done. There is nothing more likely to arouse resentment and anger in him, and a desire to take instant revenge, than attacks or threatened attacks upon a person's body or property." 89 Their Lordships referred to a statement in Halsbury's Laws of England, 4th ed, vol 11, par 108 that: "For the purpose of the common law powers of arrest without warrant, a breach of the peace arises where there is an actual assault, or where public alarm and excitement caused by a person's wrongful act. Mere annoyance and disturbance or insult to a person or abusive language, or great heat and fury without personal violence, are not generally sufficient." 90 They said, at 427 that that statement: "… is in parts, we think, inaccurate because of its failure to relate all the kinds of behaviour there mentioned to violence. Furthermore, we think, the word "disturbance" when used in isolation cannot constitute a breach of the peace. We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place at a constable, or anyone else, may arrest an offender without warrant." 91 The explanation of what amounts to a breach of the peace given in Howell has often been followed: Parkin v Norman; Valentine v Lilley [1983] QB 92 at 102-103; Innes v Weate at 52; Percy v Director of Public Prosecutions [1995] 3 All ER 124 at 132–3 (per Balcombe LJ and Collins J, holding that the exposition in Howell applied to binding over to keep the peace, as well as to powers of arrest to prevent a breach of the peace – "breach of the peace is limited to violence or threats of violence"; Edwards v Raabe [2000] VSC 47; (2000) 117 A Crim R 191; McConnell v Chief Constable of the Greater Manchester Police [1990] 1 All ER 423 at 425; Bhattacharya v State of New South Wales & Anor [2003] NSWSC 261 at [38] per Mathews AJ; Tomarchio v Pocock [2002] WASCA 156 at [54] (a decision of Pullin J sitting alone, notwithstanding the medium-neutral citation which suggests it is a decision of the Court of Appeal of Western Australia). 92 Lord Denning MR took a wider view of what counts as a breach of the peace in R v Chief Constable of the Devon and Cornwall Constabulary, ex parte Central Electricity Generating Board [1982] QB 458. That case was an application for mandamus seeking to compel the police to provide assistance to prevent protesters from interfering with a building project of which the protesters disapproved. The order was refused on discretionary grounds, but Lord Denning said at 471: "There is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing it. He is entitled by law peacefully to go on with his work on his lawful occasions. If anyone unlawfully and physically obstructs the worker, by lying down or chaining himself to a rig or the like, he is guilty of a breach of the peace." 93 However, Lawton and Templeman LJJ, the other judges in the Court of Appeal, did not endorse those statements, and later English cases have declined to follow them: Parkin v Norman at 103; Percy v Director of Public Prosecutions at 132. I note that Angel J in R v Van Bao Nguyen [2002] NTSC 38; (2002) 139 NTR 15 at [11] has cited Lord Denning's remarks with apparent approval, without adverting to the later English disapproval of them. 94 Judges who have followed Howell have recognised that sometimes the connection between a breach of the peace and violence is not a direct one. In Percy v Director of Public Prosecutions the Court accepted that there could be a breach of the peace even if a protester trespassed on a defence installation in a completely non-violent way, if there was a real risk that such conduct might provoke others to violence. 95 But the acceptance of the account of breach of the peace given in Howell has not been universal. In Nicholson v Avon [1991] 1 VR 212 Marks J said at 221: "A number of cases have been cited by counsel in which a definition of breach of the peace has been attempted: R v Howell (1981) 73 Cr App R 31, at p. 37; R v Chief Constable of Devon and Cornwall [1982] QB 458, at p. 471; Valentine v Lilley [1982] 2 All ER 583, at p. 590; Simcock v Rhodes (1977) 66 Cr App R 192; Parkin v Norman [1982] 2 All ER 583, at pp. 587-8; Innes v Weate [1984] Tas R 14, at p. 22 and articles "Arrest for Breach of the Peace" by Glanville Williams, and Leigh, "Police Powers in England and Wales". I am not persuaded that I should regard the attempted definitions as exhaustive of the meaning to be given to the expression "breach of peace" or "threatened breach of peace". The facts in a particular case will or will not appeal to a court as justifying a conclusion by police officers that there was a breach of the peace or a threat of it." 96 In State of New South Wales v Kuru [2007] NSWCA 141; (2007) Aust Torts Reports 91-893 at [149] Ipp JA said: "A breach of the peace occurs when an act "either actually harms a person, or in his presence, his property, or is likely to cause such harm, which puts someone in fear of such harm being done": R v Howell (Errol) [1982] QB 416 at 427 per Watkins LJ, in delivering the judgment of the English Court of Appeal. This statement of the law was followed by the English Court of Appeal in Addison v Chief Constable of West Midlands Police [2004] 1 WLR 29 at 30 to 31. See also Nicholson v Avon [1991] 1 VR 212 at 222." 97 That statement was neither agreed with nor disagreed with by other members of the court (Mason P and Santow JA). Further, I note that it was made in a context where the prime concern was to decide whether a police officer had, at common law, a power to enter private property when a breach of the peace was apprehended. There was no doubt that the police officers in Kuru had reason to believe there may be violence, because they were attending the premises in response to a complaint of a violent domestic incident. 98 For centuries, constables who were appointed to keep the peace have been given functions other than ones with an immediate connection with detecting or preventing violence. The Ordinance for the Preservation of the Peace of 1242 identified one function of the constables as being to keep watch at each city gate during the night and arrest any suspicious foreigners who passed by them. It also required that: "… in each hundred there shall be established a chief constable at whose command all men sworn to arms in his hundred shall be assembled; and to him they shall be obedient in carrying out necessary measures for the conservation of our peace. The chief constables of the various hundreds, moreover, shall be obedient to the sheriff and the two knights aforesaid, in coming at their command and in carrying out necessary measures for the conservation of our peace …" That authority seems fairly open-ended. 99 When the Statute of Winchester required the appointment of constables, it did so as part of c 6, that began by requiring each householder to maintain in his house certain weapons and armour, that shall be presented for inspection every two years. It continued: "And in every Hundred and Franchise two Constables shall be chosen to make the View of Armor: And the Constables aforesaid shall present before the Justices assigned such Defaults as they do see in the Country about Armor, and of the Suits of Towns, and of Highways, and also shall present all such as do lodge Strangers in uplandish Towns, for whom they will not answer; and the Justices assigned shall present at every Parliament unto the King such Defaults as they shall find, and the King shall provide Remedy therein …" 100 (Translation from the Norman French from O Ruffhead, Statutes at Large, new edition (1786)). That likewise does not seem to restrict the activities of constables to activities connected with violence or its prevention, except perhaps in the extremely extended sense that any system of law can be seen as a discouragement to self-help through violence as a means of remedying wrongs. There is authority that a party may be bound over to keep the peace even if no person has been put in bodily fear, and even if nothing has been done which tends to a breach of the peace in the sense of something which is calculated to lead to violence: Lansbury v Riley [1914] 3 KB 229; R v Sandbach; ex parte Williams [1935] 2 KB 192 esp at 196; Ackers v Taylor [1974] 1 WLR 405. 101 If the account of breach of the peace given in Howell is correct, in the present case the danger posed by the downpipe did not give rise to a breach of the peace or any apprehended breach of the peace, because there was no violence or threats of violence or reasonable apprehension that violence might occur. However the account of breach of the peace given by Howell suggests that the concept of breach of the peace has lost some of the protean quality it once had. When my own examination of the notion of breach of the peace has been incomplete, and the decisions in Lansbury, Sandbach and Ackers were not cited in Howell, I would prefer to leave the question of whether Howell is correct in that respect to an occasion when it is necessary to decide it. Thus, I shall not decide the case specifically on the basis that there was no actual or apprehended breach of the peace. 102 Rather, even if there had been an actual or apprehended breach of the peace that is not enough in itself to give rise to a duty of care owed by a police officer to someone who might be caught up in such a breach of the peace: Thompson v Vincent [2005] NSWCA 219; (2005) 153 A Crim R 577 at [153] per Mason P (with whom Handley JA and Pearlman AJA agreed). As Sedley LJ put it in Smith v Chief Constable of Sussex Police [2008] EWCA Civ 39 at [8]: "The commission of [a breach of] the peace creates public law duties which can be enforced by mandatory orders, but not, by itself, private law duties." 103 The various duties and powers of the police that I have been considering all arise as a matter of public law. The sorts of context in which they have been articulated has been criminal prosecutions for obstructing or assaulting a police officer in the course of his duty, consideration of whether an arrest has been validly effected, applications for mandamus, and an argument that an agreement to pay for special services provided by the police was made without consideration and hence unenforceable because it was already the duty of the police to provide those services (Glasbrook v Glamorgan Council). 104 In the present case, it can be accepted that one of the purposes, probably the principal purpose, of the constables being sent to the scene was to assist in protecting people from injury as a result of the loose downpipe. It can also be accepted that they attended the scene in performance of their duty as police officers. However, the mere fact that a public authority is given a task with a view to benefiting the public or some section of the public does not necessarily mean that the public authority owes a common law duty of care to people affected by performance of that duty. In Sullivan v Moody; Thompson v Connon [2001] HCA 59; (2001) 207 CLR 562 at [58], the High Court said: "Earlier, in Yuen Kun Yeu v Attorney-General (Hong Kong) [1988] AC 175, the Privy Council held that a regulatory authority did not owe a duty of care to corporate depositors. Their Lordships pointed to the responsibilities and discretions of the authority, and concluded that there was no intention on the part of the legislature that, in considering whether to register or deregister a company, there should be a common law duty of care superimposed upon the statutory framework." 105 Similarly, that the police officers were on the scene in the exercise of their public duty does not necessarily mean that they owed a tortious duty of care to anyone. The interaction of police powers, duties and discretions 106 In Haynes v Harwood [1935] 1 KB 146 at 163-164 Maugham LJ (with whom Roche LJ at 166 agreed on this point) said: "… the primary duty of the police is the prevention of crime and the arrest of criminals; but that is only a part of the duties of the police in London. There is a general duty to protect the life and property of the inhabitants ; there is a discretionary duty to direct the traffic, to help blind and infirm people to cross the road, and to direct people who have lost their way." (emphasis added) 107 That passage from "There is" on is not a statement of the common law duties of a constable. The distinction that Maugham LJ drew between "the primary duty of the police" and "the duties of the police in London" arose from the fact that (at 147) "… the orders of the Metropolitan police provided that all the efforts of the police constable must be directed to the preservation of life and property". As well, in assessing his Lordship's remarks about the existence of a duty, it is important that the remarks were made in a particular litigious context. That context was one of explaining why the claim for damages of a policeman who was injured in the course of stopping horses that the defendant's servant had negligently permitted to bolt down a crowded street was not defeated by a defence of volenti non fit injuria – the policeman was not a volunteer when it was part of his duty to protect life and property. 108 Maugham LJ was careful to make clear that this was an unusual type of duty. The passage I have quoted was immediately preceded, at 161, by his Lordship saying: "It is true that he was under no positive legal duty to run out into the street and at the risk of his life to stop two galloping horses; and I quite accept that nobody would have thought of reprimanding him if he had done nothing." 109 The passage was immediately followed, at 162, by saying: "In my opinion they are not mere lookers-on when an accident takes place, or seems likely to take place; they have, I think, a discretionary duty to prevent an accident arising from the presence of uncontrolled forces in the street, if they are in a position to do so. At any rate, they have a moral duty to intervene in such a case …" (emphasis added) 110 A "general duty to protect the life and property of the inhabitants" that is nonetheless not a "positive legal duty" seems at first sight to be an odd sort of legal entity. So is a "discretionary duty". I think that the explanation for that apparent oxymoron lies in an important feature of the role of a police constable. It is that, simply by virtue of holding the office, a constable has a variety of functions and powers, but also has a wide measure of discretion about whether, at any particular time or place, to exercise any of those functions or powers. If the constable decides to exercise a function or power, when that function or power is then exercised the constable is acting in the course of his or her duty, such that anyone who interfered with the carrying out of the function or power might be liable to be prosecuted for obstructing a police officer in the execution of his or her duty. But that is not to deny the measure of discretion that the constable had about whether to embark at all upon carrying out that function or power, at that particular time and place. 111 Thus the courts have recognised a duty on police to enforce the criminal law, but have also recognised that police have a large discretion as to the manner in which that duty is performed. In Glasbrook v Glamorgan Council Viscount Cave LC at 277 built this discretion into his formulation of the duty: "No doubt there is an absolute and unconditional obligation binding the police authorities to take all steps which appear to them to be necessary for keeping the peace, for preventing crime, or from protecting property from criminal injury …" (emphasis added) 112 In Blackburn at 136 Lord Denning MR said: "Although the chief officers of police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere. For instance, it is for the Commissioner of Police of the Metropolis, or the chief constable, as the case may be, to decide in any particular case whether inquiries should be pursued, or whether an arrest should be made, or a prosecution brought. It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area. No court can or should give him direction on such a matter. He can also make policy decisions and give effect to them, as, for instance, was often done when prosecutions were not brought for attempted suicide. But there are some policy decisions with which, I think, the courts in a case can, if necessary, interfere." 113 In Hill v Chief Constable of West Yorkshire [1989] AC 53 at 59 Lord Keith of Kinkel affirmed that a chief officer of police has a wide discretion as to the manner in which his duties are discharged. He said: "It is only if his decision upon such matters is such is no reasonable chief officer of police would arrive that that someone with an interest to do so may be in a position to have recourse to judicial review. So the common law, while laying upon chief officers of police an obligation to enforce the law, makes no specific requirements as to the manner in which the obligation is to be discharged." 114 In Hinchcliffe a husband and wife sought mandamus to compel the police to investigate what they asserted was illegal publication of information concerning Family Court proceedings in which they had been involved. Kenny J refused to order mandamus, saying at [34]-[35]: "… In R v Chief Constable of Devon and Cornwall; Ex parte Central Electricity Generating Board [1982] 1 QB 458, the Master of the Rolls reiterated (at 472) that: "It is of the first importance that the police should decide on their own responsibility what action should be taken in any particular situation." See also Lawton LJ at 474-477 and Templeman LJ at 480-481. Australian courts too have accepted that whilst a commissioner of police has a duty to enforce the law, he or she also has a broad discretion as to the manner in which he or she chooses to fulfil the responsibilities of office: see, for example, R v McAulay; Ex parte Fardell (1979) 2 NTR 22 at 29; King-Brooks v Roberts (1991) 5 WAR 500 at 518-519; and compare Smiles v Commissioner of Taxation (Cth) (1992) 35 FCR 405 at 408; affirmed Smiles v Commissioner of Taxation (Cth) (1992) 37 FCR 538. The authorities do not support the proposition that the respondents owed a duty of the kind pleaded by Mr and Mrs Hinchcliffe in their amended statement of claim (that is, a duty to investigate their complaint and to consider whether any person should be prosecuted in consequence of such investigation). As the respondents' counsel noted, there can be no duty to consider prosecution if there is no duty to undertake an investigation." 115 The relevance of this discretion concerning the manner in which a police officer's duties are performed lies in the topic to which I now turn. Public Policy as a Reason for Not Imposing a Duty of Care? 116 In Hill Lord Keith of Kinkel considered an action that the estate of a young woman who had been murdered by a serial killer brought against the police. The allegation was that the police had committed the tort of negligence when they failed to identify and apprehend the killer before he claimed the young woman as his victim. His Lordship said at 59 that the wide discretion that a chief officer of police has concerning the manner in which his obligation to enforce the criminal law is discharged "is not a situation where there can readily be inferred an intention of the common law to create a duty towards individual members of the public." He noted that the recognition of a duty of care by the Borstal operators, found to exist in Dorset Yacht Co Ltd v Home Office [1970] AC 1004 was one held to be owed only to persons at special risk of damage if boys imprisoned there were negligently allowed to escape. He held that police owed no duty of care to a particular young woman concerning the manner in which they sought to identify and apprehend a serial killer whose modus operandi was to kill young women. 117 There were two separate reasons for this conclusion. The first (at 62) was because the class of potential victims could be identified only by reference to being young and female, and there was nothing special to mark out the young woman who had been killed from all other young women who were at risk. 118 The second (at 63) was a matter of public policy. The factors identified as going to that public policy were: - The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of a tort liability "so far as concerns their function in the investigation and suppression of crime"; - Not only would imposition of a duty of care be unlikely to which improve the efficiency of police operations, it could impede it by leading to the exercise of some police functions "being carried on in detrimentally defensive frame of mind"; - Imposition of liability for failure to catch a criminal as soon as the police might have done would make actions for breach of that duty "not uncommon"; - Litigation of questions involving the formation of police policies and exercise of police discretions within the framework of available resources involves examination of matters that "would not be regarded by the courts as appropriate to be called in question"; - Investigation of such matters would be time-consuming and costly, and would involve diversion of significant police resources from the primary task of the police. 119 The State placed reliance in its submissions on the importance of public policy, of the type recognised by the House of Lords in Hill, as a reason for not recognising the existence of a duty of care in the present case. In assessing that argument one must bear in mind that the decision in Hill has been referred to with approval in the High Court of Australia (Sullivan v Moody at [57]; D'Orta Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [101] per McHugh J) and in this Court: (New South Wales v Godfrey [2004] NSWCA 113 at [33], [68], [72]; New South Wales v Paige [2002] NSWCA 235; (2004) 60 NSWLR 371 at [115]; New South Wales v Heins [2005] NSWCA 258 at [24]; New South Wales v Klein [2006] NSWCA 295. 120 In my view, public policy factors of the type identified in Hill are not sufficient to lead to a conclusion that there is no duty of care in the present case. 121 Hill is not authority that there was immunity from liability in negligence for police officers in all circumstances. In Hill Lord Keith specifically said, at 59: "There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence. Instances where liability for negligence has been established are Knightly v Johns [1982] 1 WLR 349 and Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242." 122 When introducing the public policy basis upon which he held there was no liability his Lordship said there was a reason "why an action for damages in negligence should not lie against the police in circumstances such as those of the present case, and that is public policy" (at 63, emphasis added). His reasoning concerning why public policy resulted in there being no duty of care owed was stated with reference to the matters that are involved in investigation of crime, and his conclusion at 64 was that "the police were immune from an action of this kind" (emphasis added). 123 It seems to me that the principle that Hill stands for is that, when there is a criminal at large who has demonstrated a propensity to commit crimes against a particular group of people, and that group of people is a large one, police owe no duty of care to persons who might become a victim of that criminal, concerning the strategies adopted and resources to be employed in seeking to identify and arrest that criminal. 124 There will be some other types of situation when public policy considerations like those which led to the conclusion of lack of duty in Hill also lead to the conclusion that there is no duty of care owed in that other situation and, but each situation must be considered in the light of its own facts. 125 Partly on the basis of Hill, a wider principle than Hill itself articulated has been accepted both in the House of Lords and in the High Court of Australia. It is that a "common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties": X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 739; Sullivan v Moody at [30] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ. The High Court also said, in Sullivan v Moody at [60]: "… when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of the specified class of persons, the law would not ordinarily subject them to a duty to have regards to the interests of another class of persons where that would impose upon them conflicting claims or obligations." 126 The approval given to Hill in the joint judgment of in Sullivan v Moody at [57] was in a context where their Honours were considering the way in which the need for coherence in the law affected whether a duty of care would be held to be owed by a particular defendant to a particular plaintiff. They said, at [55]: "A duty of the kind alleged should not be found if that duty would not be compatible with other duties which the respondents owed." 127 At [57], their Honours drew on Hill as an illustration of how the functions, powers and responsibilities of the various persons and authorities who are alleged to owe the duty relates to the existence of the duty: "In Hill … the House of Lords held that police officers did not owe a duty to individual members of the public who might suffer injury through their careless failure to apprehend a dangerous criminal. Lord Keith of Kinkel pointed out that the conduct of a police investigation involves a variety of decisions on matters of policy and discretion, including decisions as to priorities in the deployment of resources. To subject those decisions to a common law duty of care, and to the kind of judicial scrutiny involved in an action in tort, was inappropriate." 128 Those remarks in no way suggest that, in all their activities, police have immunity from action for negligence. 129 In the present case, there is only one factor concerning which there is even an argument that public policy factors or the need for "coherence" lead to denial of a duty of care. It arises from the fact that the constables on the scene were faced with a choice between continuing to give all their attention to the drainpipe, and dealing with the fallen tree. They obviously decided, in exercise of their discretion as police officers, to give some of their time and attention to the fallen tree. 130 However I do not see how recognition of a duty of care to the Respondent would be incompatible with any other relevant duty that the constables owed. It might, at best, increase the tendency of constables to give attention to protecting people from physical injury rather than dealing with public nuisances, but I do not see that as incompatible with any of the duties that the constables owe. Their public duty concerning the tree was to take such steps to deal with it as they thought appropriate. Recognition of a duty of care in relation to the downpipe would still leave them free to perform that duty concerning the tree, though it might affect the choice they made about which course of action was appropriate. There is nothing in the present case like the situation being considered in Sullivan v Moody, where there was a duty to investigate allegations of sexual abuse against children, in a statutory context that required the interests of the child to be paramount. In that situation, performance of the duty could be inhibited if a duty of care owed by the investigators to those being investigated were recognised. 131 Turning to other factors relied on in Hill, investigation of whether the constables acted appropriately in deciding to give their attention to the fallen tree involves no real question of policy decisions about resource allocation. It raises questions of no greater complexity than many another negligence action, such as deciding whether a police officer drove negligently. There is no topic involved into which it is inappropriate for courts to intrude. 132 The State drew attention to the decision in Alexandrou v Oxford [1993] 4 All ER 328. There, police attended a shop when a burglar alarm in it was activated, and an emergency telephone call was automatically made to the local police station. The police attended promptly, but did not inspect the shop properly, in consequence of which burglars were later able to steal goods from the shop at a place where they had forced entry at its rear. The shop proprietor failed in an action for negligence against the police, on the grounds that no duty of care existed. There were essentially two reasons. The first was that if the duty was owed to this particular plaintiff, a duty would be owed to "any person who informs them, whether by 999 call or in some other way, that a burglary, or indeed any crime, against himself or his property is being committed or is about to be committed". As the relationship between the plaintiff and the police was only as a member of that "wider group", there was no special relationship between the plaintiff and the police such as could give rise to a duty of care (at 338, 341, 343). The second was by application of the same considerations of policy that led to a duty of care being denied in Hill. 133 The public policy basis for the decision in Alexandrou does not seem to me to be applicable here, because Alexandrou was a case that related to the adequacy of the efforts of police in investigation of crime, and the present is not such a case. Duty of Care in this Case? 134 A decision about whether there is a duty of care must be made bearing in mind that the constables knew about the risks posed by the drainpipe and the Respondent did not, that the prospect of injury to anyone who walked under the drainpipe was readily foreseeable, and that keeping a close eye on the drainpipe and warning anyone who approached it is a simple task, so imposition of a duty of care might not be particularly onerous. 135 But the factors just identified are not sufficient to give rise to a duty of care. Existence of a duty of care depends upon identifying "… persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question" (per Lord Atkin, Donoghue v Stevenson [1932] AC 562 at 580). 136 The requirement for there to be not only a causal connection between the action or omission and the damage suffered, but also for there to be closeness or proximity before a duty of care exists continues to be recognised. That is so even though the concept of proximity "… gives a little practical guidance in determining whether a duty of care exists in cases that are not analogous to cases in which a duty has been established. It expresses the nature of what is in issue, and in that respect gives focus to the enquiry, but as an explanation of a process of reasoning leading to a conclusion its utility is limited." ( Sullivan v Moody at [48]) 137 The process of reasoning one adopts in deciding whether a duty of care exists in a case such as the present, where there is no duty already identified by the case law, is to engage in a multifactorial or "salient features" analysis, of the type described by Spigelman CJ in Hunter Area Health Service v Presland [2005] NSWCA 33; (2005) 63 NSWLR 22 at [9]-[21]. Notwithstanding that Spigelman CJ was in dissent in Presland concerning the application of the principles for deciding whether a duty of care exists, his statement of the principles is in my respectful opinion correct. Class To Whom Public Duty Owed 138 While it can be accepted that the constables were acting in the exercise of their public duty in going to the site with a view to protecting people from the danger posed by the downpipe, that duty is one that was imposed, as a matter of public law, for the benefit of any passers-by. The width of the class for whose benefit that duty exists is a factor against recognition of a duty of care concerning that public duty. 139 Mr Marshall argued that, by analogy to Alexandrou, if police who receive a telephone call informing them of a situation of danger owe no duty of care to people who might be affected by that danger, it is hard to see how they come to owe a duty of care if they subsequently go to the scene of the danger but do not take control of it and do nothing to make it worse. In my view that analogy is sound. No Positive Act 140 An important factor in the present case is that the constables in question failed to act to prevent the Respondent from walking into the vicinity of the downpipe, but did not engage in any positive act in a negligent fashion. The common law does not usually impose a duty of care to engage in positive action, see Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [68]. As McHugh JA said in Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at [81]: "Ordinarily, the common law does not impose a duty of care on a person to protect another from the risk of harm unless that person has created the risk. And public authorities are in no different position. A public authority has no duty to take reasonable care to protect other persons merely because the legislature has invested it with a power whose exercise could prevent harm to those persons. Thus, in most cases, a public authority will not be in breach of a common law duty by failing to exercise a discretionary power that is vested in it for the benefit of the general public. But if the authority has used its powers to intervene in a field of activity and increased the risk of harm to persons, it will ordinarily come under a duty of care. So also, if it knows or ought to know that a member of the public relies on it to exercise its power to protect his or her interests, the common law may impose a duty of care on the authority. If the authority comes under a duty of care, the failure of the authority to exercise a discretionary statutory power may give rise to a breach of the common law duty of care. But subject to these exceptions, ordinarily the common law will not impose an affirmative duty of care on an authority which would have the result that a failure to exercise a statutory power constitutes a breach of that duty." 141 In Thompson Mason P at [154] recognised that in some circumstances police may act so as to assume a duty of care in a particular task. The authority cited to that proposition was Knightly v Johns [1982] 1 WLR 349; Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242; Zalewski v Turcarolo [1995] 2 VR 562, and Graham Barclay Oysters Pty Ltd v Ryan at [81]. 142 Those case are distinguishable from the present case. In Knightly the plaintiff was a police officer who was injured when he collided with a motor car after a superior officer instructed him to ride his motorcycle in the wrong direction in a one-way tunnel. In that case, there was a positive act of the superior officer, which directly led to the plaintiff's injury – there is no such positive act in the present case. In Rigby the plaintiff was a shop owner whose shop was damaged by fire after a psychopathic intruder broke into it, and spread inflammatory material around, and the police fired a cartridge of inflammable material into the shop after the fire brigade had departed. Again in that case, there was a positive act of the police, which led directly to the plaintiff's injury. In Zalewski police had shot the plaintiff, while the plaintiff was in a seriously disturbed state. The plaintiff was in a room with a gun when the police entered. There was some evidence that the plaintiff then moved his gun, after which the police shot him. Hanson J at 578-579 found: "… it was open to the jury to find [that the police officer] acted impetuously, without due enquiry and reflection, in disregard of police instructions, in the face of the risk of provoking a situation involving the person with a psychiatric or psychological condition and who did provoke by his actions a situation which it was open to the jury to find was a probable consequence of his actions." Again, that involved a specific positive action on the part of the police officer. 143 Another decision referred to in argument as illustrating circumstances when a police officer could be subject to a duty of care is Ticehurst v Skeen (1986) 3 MVR 307, a decision of Wood J (as his Honour then was) in the Common Law Division of this court. It arose when a motorcyclist came into collision at night with a vehicle that had broken down and had been left, unlighted and with nothing to warn of its presence, partly blocking a traffic lane. A police officer had come to the broken down vehicle earlier in the evening and gave the driver some help in trying to re-start the vehicle, but when that attempt was unsuccessful called the NRMA and went away without taking any steps to provide a warning to oncoming motorists about the presence of the vehicle. That police officer did not give evidence because he was medically unfit to do so (309). Wood J said, at 319: "The police have a well recognised role and responsibility in patrolling the roadway, in ensuring that the traffic laws are obeyed, in investigating accidents, and in assisting those injured in accidents. This is part of the work entrusted to them by statute, and by the common law. The purpose is to prevent accidents and to preserve the safety of road users. I am well satisfied that the functions of the police in the enforcement of traffic laws, and in the protection of the public, encompass a common law duty to give proper notification to possible road users of a danger arising from previous accidents and creating an unreasonable risk of harm… … I would be prepared to find, as a matter of law, that a police officer coming onto a hazardous condition on the roadway, does owe a duty to other road users to exercise reasonable care to protect them from that hazard. The standard of care, and the precautions to be taken, would however depend on the circumstances of the case, including the nature and degree of the risk, competing calls on the services of the officer, the availability of equipment and personnel, and so on." 144 However, there were some equivocation on his Honour's part about whether this was an actual finding that a duty of care existed, because he continued: "I propose to approach the present case on the assumption that such a duty of care does exist." (Emphasis added) 145 He went on to find, at 319, that, in the circumstances of the case, the plaintiff had failed to establish there was a breach of that duty, because of the paucity of the evidence: "On the material before me I am quite unable to say whether the [police officer] was the superior or subordinate officer in the patrol car, whether he and his partner were still on duty, whether they were en route to a more pressing call, what equipment they had, or whether their call for assistance from the NRMA was, in the circumstances, less than adequate response. Each of these considerations is critical when the personal liability of the [police officer] is in issue." 146 To the extent that there was a finding of duty of care in that case, it is in my view incorrectly decided. The reasoning does not draw the distinction clearly drawn in cases cited in paras [102], [104], [106]-[109] and [125] above between a duty owed by a police officer as a matter of public law, and a duty of care. It is at odds with the principles stated by McHugh J in Graham Barclay at [81]. 147 Both the trial judge and the Respondent placed reliance on the decision of this court in Ansett Transport Industries (Operations) Pty Ltd v State of New South Wales (1998) 28 MVR 145. In that case, a semitrailer had jack-knifed on a highway, blocking two lanes. Police established a roadblock that prevented vehicles from approaching the semitrailer, but, for no apparent reason, removed the roadblock before the semitrailer had ceased to block the lanes. The police left in place a system whereby another semitrailer driver signalled drivers who were approaching the scene to stop, and gave them directions on the route to follow to avoid the site of the accident. After that, a bus ignored the signal to stop, and collided with the semitrailer. Mason P recorded, at 148: "It was not disputed that, since the police had taken charge of the accident scene, they had come under a duty of care to road users to supervise carefully: Ticehurst v Skeen (1986) 3 MVR 307." 148 The finding of negligence in that case was thus a finding that there had been a breach of the admitted duty of care. The admission was made on the basis that the police had taken charge of the accident scene. By reason of both of those circumstances, Ansett does not assist in deciding whether there is a duty of care in the present case. Control 149 Control has been held to be a relevant factor in existence of a duty of care: Graham Barclay at [20], [90]-[95] and [149]-[152]; Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 at [19]-[21], [42]-[43], [110]-[117]; Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 at [102]. 150 While the police officers had directed some people away from the site, they had done nothing physical, like the erection of barriers, to prevent access to the site or in any other way take control of it in a physical sense. They were simply standing on the footpath on the opposite side of the street to where the downpipe was dangling. They did not even have control in the extended or metaphorical sense that can come from having particular access to a crucial piece of information. It is not as though the constables were the only people who knew about the downpipe dangling, or were in a position to warn the Respondent of its presence. They had not assumed any responsibility towards the Respondent as an individual person. At the time he was injured the Respondent did not even know of their presence, and was in no way relying upon them. The constables had not created the risk of harm, and did nothing that increased the risk of harm to people who were nearby. Vulnerability 151 The vulnerability of a plaintiff can be an important factor in deciding whether a duty of care is owed to him or her: Perre v Apand Pty Ltd [1999] HCA 36; (1997) 198 CLR 180; Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1 at [100]. As Spigelman CJ explained in Hunter Area Health Service v Presland at [19]: "The concept of vulnerability in this context is a reference to the inability of a particular person to protect himself or herself from the consequences of the conduct alleged to be negligent." 152 The Respondent was not vulnerable in that sense – all he needed do was to look up to become aware of the potential danger. 153 In these circumstances, I conclude that the constables did not owe a duty of care to the Respondent. There was nothing in the relationship that they had to the Respondent that put them into a different situation, so far as owing a duty of care is concerned, to that of any other member of the public who was on the scene. 154 I mention that section 213 Police Act 1990 exempts a member of the police force from liability for damage caused by an act or omission in the exercise by that member in good faith of the function conferred or imposed on that member by law. However no reliance was placed upon that section in the present case. Breach of Duty of Care – the Judge's Reasons 155 Although my finding that no duty of care was owed is sufficient to dispose of the case against the State, I will consider, somewhat more briefly, the situation concerning breach of duty of care. 156 The trial judge's reasoning on this topic is as follows (at [55]-[62]): "It is now appropriate to determine whether or not the officers failed to take reasonable precautions to protect the plaintiff from danger. It was submitted on their behalf that they did all they could. I am not so persuaded. The evidence established that they were at the scene for a total of sixteen minutes and I accept that a lot happened within that time. They were called to the scene because a member of the public reported that a downpipe was loose and about to fall on someone walking past. They acknowledged that it was a dangerous situation by: · standing on the opposite footpath · telephoning the council because they could not reach the pipe · warning a couple of pedestrians Whether they told a driver who had pulled in to the spot where the plaintiff later parked or a car was already there and the driver got in and drove off, they had warned some pedestrians and in my view were clearly aware of the fact that there was an empty parking space immediately adjacent to the pipe. Their attention was however sufficiently diverted by the tree that they failed to observe the plaintiff enter Hughes Street and to move him on. It was accepted by the officers that the fallen tree did not create a danger, but was restricting traffic flow in a one way street. In my view at its highest the tree constituted an inconvenience to motorists who may have had to reverse up Hughes Street and take an alternative route. On the other hand a swinging pipe in gusting strong winds clearly constituted a danger. When it was suggested to the Constables that at least one of them ought to have stood at the intersection with Tusculum Street to prevent cars and pedestrians from entering Constable Winslow said that he would not stand on the roadway without a vest which is part of standard operation procedures. Constable Elliott said that more than one officer would be needed to stop traffic. However, this was an emergency situation and they were on a narrow one way suburban street, not a multi-laned highway. It was also broad daylight. Constable Winslow said in evidence that officers are required to attend a job and to assess it. He also said that the police never know what they are going to until they get there. He said that he was used to according priorities at scenes to which he was called. He 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 by a fallen tree. For these reasons I find that the first defendant breached the duty of care owed to the plaintiff. I am satisfied that the risk of injury was foreseeable, was not insignificant and that a reasonable person in the officers' position would have taken the precautions which they failed to take." Breach of Duty - Discussion 157 At the start of her discussion of breach of duty of care the trial judge posed the correct question, "whether or not the officers failed to take reasonable precautions to protect the plaintiff from danger". 158 The trial judge found that there were four specific things that the constables failed to do: - they failed to observe the Respondent enter into Hughes Street; - they failed to move him on; - they failed to prevent him from parking in the empty parking space; and - they failed to prevent him from alighting from his vehicle. 159 In my view, failing to observe the Respondent enter Hughes Street would not in itself be a breach of any duty of care. Any duty of care would be one owed to pedestrians or persons who it was reasonably foreseeable would become pedestrians. The fact that the Respondent's truck drove into Hughes Street is not enough, at the time of his entering Hughes Street, to bring him within the scope of the duty. All the evidence was to the effect that the police officers observed the truck as it pulled up. 160 Failure to move the Respondent on, failure to prevent him from parking in the empty space, and failing to prevent him from alighting from his vehicle are all failing to make the Respondent act in a particular way. Each of those ways is one that would have resulted in the Respondent not encountering the danger from the pipe. However, the law of negligence does not impose absolute duties on a defendant to cause a plaintiff to act in some particular way. Rather, it imposes a duty on a defendant concerning the defendant's own conduct, namely to take reasonable care to avoid particular types of harm to particular people (identified either by name or by description). That a defendant has failed to prevent a plaintiff from acting in a particular way might be part of the evidence that a particular defendant has breached a duty of care, but does not itself constitute the breach of duty of care. To decide whether a defendant's failure to cause the plaintiff to act in a particular way was actually the product of negligence, one must enquire what courses of action were reasonably open to the defendant to prevent the plaintiff from acting in that way, and whether the taking of reasonable care by the defendant required the defendant to adopt one of those courses of action. 161 One specific course of action that the Respondent submitted should have been adopted was for one or other of the constables to yell a warning to the Respondent or in some other way seek to attract his attention as soon as he parked his vehicle. For the reasons already given, in my view there has been no finding that that course of action was not followed. Going on Point Duty 162 Another specific course of action that the Respondent submitted to the trial judge the constables should have adopted was for one of them to stand in the intersection of Hughes Street and Tusculum Street and direct traffic. If they had done that, they could have both kept traffic away from the fallen tree, and been in a position from which they could warn pedestrians, and then there would have been no need for them to remove the tree. Constable Winslow's cross-examination on that topic included: "Q. I want to suggest to you that it would be even more reason for sending you or Elliott up to that corner and put up your hand? A. We were right at the corner. The corner of Tusculum and Hughes is where we were, that's where we were situated, so we couldn't get much closer to the corner than what we already were. Q. Out onto the roadway to stop the traffic as the cars came down, keep an eye on them, hold up your hand, pretty easy to do isn't it? A. Yes, but I'm not going to position myself in the middle of the roadway without a reflective vest which I did not have. Q. It's not night-time is it? A. It doesn't matter. A lot of people don't see us. How many pedestrians get hit in the city every day, lots. Q. So that was another precaution taken for your safety, was it, you weren't going to go out into the road to try and stop traffic because you didn't have a vest, is that it? A. Yeah, it's my safety – OH&S issue. Q. So there was a comparison of your safety and the safety of motorists coming down who might pull into that parking spot and you won, is that it? A. Yeah, I regard my safety as a high concern of mine." The reference to "OH & S" was clearly a reference to occupational health and safety. 163 The only re-examination of Constable Winslow on that topic was: "Q. It was also suggested to you that something which you ought to have done was to have stood on the corner of Hughes and Tusculum Street and prevented traffic from passing down the street. Had you have attended to that, Constable, in that manner, could you have also attended to removing the tree from the road? A. No. 164 In cross-examination Constable Elliott agreed that someone standing in the middle of the intersection of Hughes Street and Tusculum Street would be able to turn any vehicles that approached the intersection by coming down Hughes Street into Tusculum Street, and require any vehicles that approached the intersection along Tusculum Street to turn around in Tusculum Street, and that one person could stop or divert all of that traffic. The cross-examination continued: "Q. There were two of you there. The other one could have gone down the street a bit beyond the building near where the tree was and stopped pedestrians walking up the footpath. A. From – on the – they'd also have to deal with people around the corner from Tusculum Street as well. Q. The person standing on the corner from Tusculum Street stopping the traffic can easily shout out to pedestrians or hold their hand up or wave. Don't you agree? A. To a certain extent but not completely, no. Q. It depends whether the pedestrians take any notice of a uniformed police officer holding their hand up at them or telling them to stop. A. Some people don't. Q. Yes, but generally you find that citizens obey the directions of police in those circumstances, don't you? Police on point duty, that sort of thing. A. To an extent." 165 The re-examination of Constable Elliott included the following: "Q. Constable, when Mr Lidden was asking you some questions about what he says you ought to have been doing, as in redirecting traffic, can I just ask you this; did you have with you at the time any safety jackets? A. No. Q. When, as part of your police duties you've been required to so redirect traffic, is it common practice or not to wear such equipment? A. It's standard operating procedures to wear it. We can't do it without wearing it." 166 I would not hold that performance of a duty of care required a defendant to place himself or herself into a situation of potential danger, in circumstances contrary to the standard operating procedures under which that defendant worked, and where the only evidence was that the defendant "can't do it without wearing it". The Case Against the Building Owner 167 The Building Owner called three witnesses. One was Matthew Hurst, who had been a director of the Building Owner since 1996 and its chairman from 1999, as well as a resident. The second was Mr Peter Politis, a director of P & H Developments Pty Ltd, a company engaged by the Building Owner to perform general maintenance and cleaning at the building. The third was Mr Kelvin McGrath, a plumber who had regularly provided services at the building for about 35 years, attending on a call-out basis generally two or three times per month, sometimes more often. He attended at the building on the afternoon the pipe fell, and saw it on the ground. 168 The trial judge made the following findings (at [63]-[64]): · "The building is some 80-85 years old · Hardly surprisingly, given its age, there have been plumbing problems, for example a leaking roof and the need to replace sewer stacks · Externally, overall the building was in reasonable condition for its age · According to Mr McGrath, whose evidence I consider to be the most reliable on this aspect, the downpipes were of copper, a non-corrosive metal, were 115mm square and more substantial than the equivalent pipes manufactured these days · There was no evidence to suggest any defect in the downpipe itself · The downpipes overlap by about 25mm and the joins are soldered · They are attached to the wall by way of brackets and galvanised steel bolts, which can corrode over time. The building had been painted a few months before the plaintiff's accident with a fibrous membrane. The painting included the downpipes and brackets and the painters had been requested to report anything untoward. Mr Hurst said that they carried out some patching of walls and window repairs, but he did not recall them reporting any problems with downpipes." 169 Mr Hurst's position in the Building Owner was such that maintenance matters were regularly brought to his attention. However, until the day of the plaintiff's accident he was unaware of any problem involving the downpipes. 170 Mr Hurst accepted that in the period he had been on the Board, no report had been commissioned from a plumber concerning the state of the guttering and downpipes. 171 The trial judge found (at [66]): "P & H Developments Pty Limited have been retained to provide services to the second defendant for eight or nine years. The services include general maintenance and cleaning, arranging and supervising repairs and reporting maintenance issues. P & H engages cleaners and Mr Politis attends the building for at least part of every day, six or seven days per week." 172 The trial judge found (at [80]): "It emerged from the evidence in the second defendant's case that there were regular inspections of the outside of the building: · Mr Hurst said that whilst a resident of the building he walked past it on a daily basis and checked the outside. The plaintiff sought to challenge Mr Hurst's evidence on the basis that he denied that there were pipes on the premises at the time of the accident whereas it was established that there were as part of replacing the sewer stacks. However I am not persuaded that I should reject his evidence in relation to other matters. · Mr Politis gave evidence that he regularly inspected the external walls of the building mainly looking for broken windows but said that he ran his eye over the building including the downpipes. The plaintiff attacked his reliability because he was somewhat confused as to the shape of the downpipe. However his only involvement with the pipe was moving it after it fell and I have no reason not to accept his evidence as to the services he provided to the building. · Mr McGrath gave evidence that the downpipes were clamped to the wall every couple of metres and that from time to time he checked to ensure that they were secure." Apart from the one topic on which she expressly said that she did not accept Mr Hurst's evidence, it appears that the trial judge accepted this evidence. 173 The roof of the building is regularly used for parties and has artificial turf, pot plants and a fishpond. The roof is surrounded by a parapet. In the parapet are openings through which water can flow to rainwater heads. Each rainwater head sits on top of a downpipe, into which water from the rain head ordinarily then flows. 174 The trial judge recorded evidence that she evidently accepted (at [69]-[70]): "… Mr Politis, who cleans the roof twice per week gave evidence of regularly finding objects in the rain heads but said there are grates to stop large objects. Mr McGrath gave evidence that in the past rainwater heads have overflowed usually if garden material had blown in. He also gave evidence that after parties he had found objects such as keys and bottles. He said that he regularly checked to ensure that there was no foreign material in the rainwater heads as dirt and leaves were common and that when the grates became worn or damaged he replaced them. Whilst Mr McGrath was unaware of any problems with this particular downpipe he said that rainwater heads had become blocked in the past and this became obvious when water spilled off the roof into the street." 175 The downpipe that is the subject of this litigation sits on the outside of the building. It runs vertically from the rainwater head to near the ceiling level of the ground floor of the building. It then takes a dogleg bend and flows recessed in the wall of the building to below the level of the footpath. It then takes another bend and flows horizontally underneath the footpath to empty into the gutter at the kerb. 176 When Mr McGrath attended the building on the day the accident had occurred he found that the downpipe was full of water all the way up to the place where it had broken off. He was able to clear the pipe using an electric eel. He found it had been choked with material located in the pipe in the footpath, and above the bend. The blockage commenced about 30-40cm from the road. It included a thin piece of timber about one metre long, as well as some VB cans and a large beer bottle. From the position of these debris in the pipe one would infer that they came from the footpath end, not from the top of the pipe. In the section of the pipe above the bend he found leaves, dirt and sludgy debris, in a quantity that in his view could not have built up over night. He said he had never seen a bit of timber or cans in the footpath before, and that a blockage of the type he had encountered was "very unusual". 177 The trial judge accepted (at [75]) that: "… even if properly attached it was possible that the downpipe could fall off the building if full of water. … In the absence of any evidence to suggest a defect in the pipe or in its attachment, this is in my view the only plausible explanation before the court as to the cause of the pipe becoming detached although the wind was probably also a factor. There is no evidence to support the plaintiff's suggestion as to wear and tear of the bolts holding the brackets." 178 There was no evidence from anyone with any greater expertise than Mr McGrath about the cause of the pipe becoming detached from the building. Her Honour found (at [87]) that: "… what ultimately caused the loose pipe to fall was a strong gust of wind. There was no evidence to suggest that the second defendant, through one of its officers or agents, was aware of the danger until after the pipe had fallen. There was evidence that before the pipe fell the police had a conversation with a male resident of the building but he was never identified. Even if he were a director of the second defendant, by that time the police had been called and were in control of the site and in my view the second defendant was entitled to rely upon them to carry out their duties to ensure the safety of persons in the vicinity." 179 I have already said that I do not accept that the police were "in control of the site". Relevantly for the Respondent's case against the Building Owner, the male resident of the building was never identified, and being a resident of the building is not enough to make someone the agent of the Building Owner. Thus, the Respondent has not sheeted home to the Building Owner at a time before the pipe fell, knowledge that the pipe was loose. Hence, what situation the Building Owner would have been in if it had had that knowledge does not need to be considered. 180 The Building Owner is a corporation that appears, from its name, to be established under the Corporations Act or one of its predecessors. The trial judge described the apartments in the building as being "held by company title". Thus the Building Owner is not an owners corporation established under the Strata Schemes Management Act 1996 or any of its predecessors, and so is not subject to the statutory duty under section 62 Strata Schemes Management Act 1996 to maintain and keep in repair the common property, that was considered by this court in Ridis v Strata Plans 10308 [2005] NSWCA 246; (2005) 63 NSWLR 449. 181 The Building Owner accepted at the trial, and accepts on the appeal, that it owed a tortious duty to take reasonable care that its building did not cause personal injury to passers by in the public street. In contended, however, that it had not breached the duty, and that performing the duty did not require it to inspect the premises with a view to discovering hidden defects. 182 The trial judge accepted that the duty on the Building Owner was "to take reasonable care to protect persons such as the plaintiff from risks and injury which can be foreseen and avoided." She held, however, that the Building Owner had not breached that duty. 183 The case against the Building Owner was pleaded solely on the basis of the tort of negligence. Liability of a building owner or occupier to someone passing along an adjacent public street was traditionally seen as arising in the tort of public nuisance: Cartwright v McLaine & Long Proprietary Limited [1979] HCA 16; (1979) 143 CLR 549; Volman (t/as Volman Engineering) v Lobb [2005] NSWCA 348 at [35]-[38]; Greenwood v Papademetri [2007] NSWCA 221 at [87]. When the case has not been pleaded in nuisance, questions of whether there is now any difference of substance between the law of nuisance and the law of negligence as applied to such a situation, and in particular the present status of the decision in Wringe v Cohen [1940] 1 KB 229 in Australia, do not need to be resolved. 184 In Ridis v Strata Plan 10308 McColl JA made an extensive review of the authorities concerning the common law duty of care owed by a building occupier to an entrant, and concluded at [133] that "an occupier is under no duty to inspect their premises for the purpose of discovering unknown and unsuspected defects". I respectfully agree with that proposition. Further, I can see no reason why the duty of care owed by a building occupier to a passer-by in the public street should be any more stringent than the duty that a building occupier owes to an entrant. 185 Ms Norton submits that it is likely that the pipe banging against the side of the building before it fell would have come to the attention of building residents. Even if one could infer that it was likely that the banging pipe would have come to the attention of a resident, that is not sufficient to fix the Building Owner with knowledge that the pipe was loose. 186 Ms Norton submitted that the occasional blockage of the rain heads on the building showed that it was reasonably foreseeable that the downpipes would become blocked. She submitted that it would be very simple to check for blockages in the downpipe by putting a hose into the top of the rain head and seeing whether water flowed out at the kerb at the same rate as it was going in, and that also regular use of an electric eel could detect and remove debris. There was no evidence concerning practices usually adopted by the owners of apartment buildings to check on the condition of downpipes, and no evidence of any codes of practice or other recommendations made by a knowledgeable body on that topic. 187 While the rain heads had occasionally become blocked, that blockage had in the past been able to be cleared from the roof level itself. There was no external indication on the downpipe of any defect in its condition. The particular causal mechanism by which the downpipe became loose was a combination of the pipe being full of water, and the strong wind. Though that causal mechanism can readily be understood in hindsight, there is no basis on which it can be concluded that the Building Owner ought reasonably have realised that this was a possible risk. Even though it would have been very easy to check for blockages by the mechanism that Ms Norton suggested, there was no occasion to carry out such a check. In my view the conclusion of the trial judge that the Building Owner had not failed in its duty to take reasonable care, is correct. Rejection of Dr Podgorski's Reports 188 Though the matter considered under this heading is, in light of the conclusions to which I have already come, not necessary for the decision, it was argued, and is of some general importance, so I should express my views concerning it. 189 Dr Mark Podgorski is a rheumatologist. The Respondent's GP, Dr Charteris, referred the Respondent to Dr Podgorski. This resulted in Dr Podgorski writing two medical reports. A report dated 21 April 2005 is addressed to Dr Charteris, and records the results of Dr Podgorski's examination and diagnosis. The second report, dated 29 June 2005 is addressed to the plaintiff's solicitors. 190 At the trial the State sought several times to tender those reports, but each time the tender was rejected. They have been placed before this Court on the basis that if necessary the Court would decide their admissibility in the course of this judgment. Relevant Rules of Court 191 The trial occurred in two tranches. The first was on 20, 21, 22 and 23 June 2006. The second was on 16, 17 and 18 October 2006. 192 The present provisions of Division 2 of Part 31 Uniform Civil Procedure Rules 2005 (rule 31.17 to rule 31.54 inclusive), controlling the giving of expert evidence, came into effect on 8 December 2006. Thus, it is by reference to the provisions in force in June and October 2006, not the present provisions, that the correctness of the trial judge's ruling needs to be determined. 193 Rule 31.17 Uniform Civil Procedure Rules 2005, as then in existence, stated: " expert's report means a written statement by an expert (whether or not an expert witness in the proceedings concerned) that sets out the expert's opinion, and the facts on which the opinion is formed, and contains the substance of the expert's evidence that the party serving the statement intends to adduce in chief at the trial." Dr Podgorski's reports complied with that definition. 194 Rule 31.18 provided: "(1) Each party must serve experts' reports … on each other active party: (a) in accordance with any order of the court, or (b) if no such order is in force, in accordance with any relevant practice note, or (c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used. (2) An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion. (3) Except by leave of the court, or by consent of the parties: (a) an expert's report … is not admissible unless it has been served in accordance with this rule, and (b) without limiting paragraph (a), an expert's report … when tendered under section 63, 64 or 69 of the Evidence Act 1995 , is not admissible unless it has been served in accordance with this rule, and (c) the oral expert evidence in chief of any expert is not admissible unless an expert's report … served in accordance with this rule contains the substance of the matters sought to be adduced in evidence. (4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied: (a) that there are exceptional circumstances that warrant the granting of leave, or (b) that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1)." 195 Rule 31.19 provided: "(1A) This rule applies to proceedings in the District Court or a Local Court. (1) If an expert's report is served in accordance with rule 31.18 or an order made under that rule, the report is admissible: (a) as evidence of the expert's opinion, and (b) if the expert's direct oral evidence of a fact on which the opinion was formed would be admissible, as evidence of that fact, without further evidence, oral or otherwise. (2) Unless the court orders otherwise: (a) it is the responsibility of the party requiring the attendance for cross-examination of the expert by whom an expert's report has been prepared to procure that attendance, and (b) … the party requiring the expert's attendance must notify the expert at least 28 days before the date on which attendance is required. (3) Except for the purpose of determining any liability for conduct money or witnesses' expenses, an expert does not become the witness for the party requiring his or her attendance merely because his or her attendance at court has been procured by that party. (4) A party who requires the attendance of a person as referred to in subrule (2): (a) must inform all other parties to the proceedings that the party has done so at least 28 days before the date fixed for hearing, and (b) must pay to the person whose attendance is required (whether before or after the attendance) an amount sufficient to meet the person's reasonable expenses (including any standby fees) in complying with the requirement. (5) If the attendance of an expert is required under subrule (2), the report may not be tendered under section 63, 64 or 69 of the Evidence Act 1995 or otherwise used unless the expert attends or is dead or the court grants leave to use it. … (7) The party using an expert's report may re-examine an expert who attends for cross-examination under a requirement under subrule (2). (8) This rule does not apply to proceedings on a trial with a jury." 196 On 22 June 2005 – nearly a year before the trial began – there was an order for the plaintiff to complete service of all primary medical/liability reports by 15 August 2005. Dr Podgorski's reports were not served or included in the list of medical reports proposed to be relied upon of any party prior to the trial. The State subpoenaed them. An order for access to them was made on 25 July 2005, but the solicitor for the State did not look at the documents until shortly before the hearing. 197 The State first sought to tender the reports on 21 June 2006. After argument that is not recorded in the transcript, they were rejected. 198 Later in the day on 21 June 2006 the plaintiff was cross-examined by counsel for the State, Mr McCarthy, and various suggestions were put to the Respondent about what he had told Dr Podgorski concerning his symptoms and history. The Respondent agreed with those suggestions. There was some argument about the admissibility of the reports, that is not recorded in the transcript, after which the trial judge rejected the reports without reasons. The Respondent disagreed with a suggestion put to him about what he meant by what he said to Dr Podgorski. 199 In particular, the Respondent had agreed with the suggestion that he had told Dr Podgorski: "… that in the past you had previous dislocations of shoulders on each side in football days as a youth and for 8 or 9 years had had chronic recurrent left shoulder and upper arm discomfort on lifting heavy objects in his job as a removalist." The Respondent disagreed with the suggestion that by those words he meant the eight or nine years immediately before the accident. Having looked at Dr Podgorski's report as though on a voir dire, I see that the history that had been put to the Respondent is virtually verbatim what Dr Podgorski had recorded in the report, but the report does not assist in deciding whether or not that eight to nine years was immediately before the accident. 200 Later in the day on 21 June 2006 Mr McCarthy renewed the tender of Dr Podgorski's reports. Mr McCarthy supported the tender on the basis that the report had been cross-examined on, it had been in the plaintiff's possession for nearly a year, and there was no identifiable prejudice. The trial judge declined to reverse her previous ruling, saying that she was not persuaded that there were exceptional circumstances. 201 On 22 June 2006 Mr Dixon, counsel for the Building Owner, cross-examined the Respondent concerning what he had told Dr Podgorski. Mr Dixon suggested he told Dr Podgorski that he had been taking Cipramil for two to three years before the accident, but that after the accident it has increased to two per day. The substance of the Respondent's evidence was that he did not recall what he had said to Dr Podgorski, but he was not taking one tablet right up to the accident. That evidence was relevant to a case that both defendants wished to put, to the effect that the Respondent had a significant disability before the accident. 202 Later in the day on 22 June 2006 Mr Dixon attempted to tender Dr Podgorski's reports, on the basis that they were business records. In the course of discussion that preceded the trial judge's ruling that the tender was rejected, she referred to still not being persuaded that there were any exceptional circumstances, and that, even if a document was a business record, if it was an expert's report rule 31.18 still applied to it. 203 In the time between the first and second tranches of the hearing the solicitor for the State served on the solicitor for the Respondent a copy of the medical report of Dr Podgorski dated 29 June 2005. On 17 October 2006 Mr McCarthy renewed his application to tender Dr Podgorski's report, proved service of the report, and submitted that the fact that 28 days after service of the report had by then passed, was relevant to whether there were exceptional circumstances. The trial judge remarked that the 28 days was relevant only under rule 31.18(1)(c) which in turn applied only if there was no order about service of reports. In the present case there had been an order of the Judicial Registrar requiring reports to be served by a particular time prior to the commencement of the first tranche of the hearing. The trial judge declined again to admit the document into evidence. 204 In my view it is correct to say that the 28-day period is explicitly given a role to play under rule 31.18 if there has been no order for service of the reports. It does not follow, however, that notification of an intention to tender the report and the subsequent lapse of time are not relevant matters to take into account in deciding whether there are exceptional circumstances. 205 In the reasons for judgment following the trial the trial judge referred to the attempt to tender Dr Podgorski's report, and said that those attempts: "… were unsuccessful because the reports had not been served and I was not persuaded that there were exceptional circumstances (part 31.18(4))." 206 I venture to repeat what I said (with the agreement of Tobias JA and Handley AJA) in Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [66]-[67]: "Another question of construction concerned "exceptional circumstances" in rule 31.18(4). In San v Rumble (No 2) [2007] NSWCA 259 at [59]-[69], I gave consideration to the expression "exceptional circumstances" in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4). (a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [2000] 1 QB 198 (at 208). (b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913). (c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]). (d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912-913). (e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186). In the context of rule 31.18(4) UCP Rules , any decision about whether there are exceptional circumstances would need to bear in mind the explicit statement of objectives of a court in the management of litigation contained in sections 56-59 Civil Procedure Act 2005 ." 207 In my view, the combination of the reports having been cross-examined on, the reports having been in the plaintiff's possession for nearly one year, the defendant having notified an intention to tender the reports, lapse of a reasonable time for the plaintiff to take steps to deal with the tender of the reports (which might or might not be 28 days), and lack of any identifiable prejudice would, in the absence of any other countervailing factors, amount to exceptional circumstances. 208 Having seen the reports, I would be surprised if the trial judge found that their weight was such that they made the slightest difference to her decision on quantum. Thus, if the point concerning rejection of Dr Podgorski's reports had been the only ground on which the State succeeded in the appeal there may well not have been an order for a new trial. However, in light of my findings concerning liability, it is unnecessary to consider that topic any further. Costs 209 As the Respondent's cross-appeal against the Building Owner has failed, there is no reason why that cross-appeal should not be dismissed with costs following the event, so far as the Building Owner is concerned. In so far as the cross-appeal is brought against the State it should also be dismissed. 210 The situation concerning the costs of the appeal of the State, and of the cross-appeal in so far as it is brought against the State, is somewhat more complex. In argument, Mr Marshall accepted that if the State were to win on the point concerning existence of duty of care, the fact that that point had not been run to its full extent in the court below could have an effect on costs. It will be necessary to consider whether, in light of all the reasons for judgment, there is any occasion for departure, and if so what departure, from the usual principle that costs follow the event. As well, Mr Marshall adverted to the possibility that there may be material not contained in the appeal books that bears upon the question of costs. 211 Though I would hear counsel further on this if they wish, at present I see no reason why a decision on costs should not be made without a further oral hearing, on the basis of written submissions and any further evidence that the parties wish to file. In view of the imminent retirement of Mason P, the course to be adopted for deciding costs will to some extent depend on whether the parties consent to any question of costs being decided by Giles JA and me. Once the attitude of the parties to that question is known, directions concerning any interlocutory steps for deciding the costs question can be given. Orders 212 I propose the following orders: 1. Appeal upheld. 2. Verdict and judgment for the Respondent set aside. 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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.