State Of NSW (NSW Police) v Nominal Defendant 
NSW Court Of Appeal1
The duty of care owed by a driver being pursued by a police
officer continues even if at some point the police officer's
conduct becomes unreasonable. It is foreseeable that in the context
of a pursuit a police officer might make an error of judgment in
initiating or continuing a pursuit.
The chain of causation will not be broken in those
circumstances where the negligence of the driver was itself a
direct or indirect contributory cause of the intervening act or
The NSW Court of Appeal handed down its decision in State of
NSW v Nominal Defendant on 31 July 2009.
The State of NSW sought a recovery from the Nominal Defendant
pursuant to the indemnity contained in 151Z(1) of the Workers
Compensation Act 1987 in relation to injuries sustained by a
police officer whilst in pursuit of a red Commodore. The red
Commodore did not have a rear registration plate and the driver
failed to stop once the officer activated his lights and siren. The
pursuit ended with the police officer colliding with a parked truck
and subsequently the red Commodore which was stationary.
In the District Court the Nominal Defendant successfully argued
that in the circumstances it was not reasonable for the police
officer to initiate the pursuit and that he had the free choice not
to do so. Further, it was unreasonable for the police officer to
continue the pursuit. It followed that it was not reasonably
foreseeable that the police officer would initiate and then
continue with the pursuit.
Sweeney DCJ held that the collision was caused by the
intervening act or decision of the police officer to continue the
pursuit and therefore the State of NSW failed to recover from the
Court Of Appeal
The leading judgement was delivered by Beazley JA with whom
Allsop J and Macfarlan J agreed.
Justice Beazley referred to the Queensland Court of Appeal
decision in a matter of Hirst v Nominal
Defendant2. That case dealt with the
application of the principles of causal connection in relation to a
police pursuit. Keen JA in that case held that if the causal
connection was to be severed at the point that the police
officer's actions became unreasonable it would be an odd
result. It would mean that the law would hold the driver of the car
being pursued liable up until that point when the police
officer's actions were unreasonable but regard him or her as
freed of liability even though the driver of the car persisted in
the unlawful conduct of failing to stop. He did not consider that
the law supports such a result. Again in that case it was held that
the duty of care owed by a driver to a police officer was not to
expose the police officer to a risk of injury arising from his own
deliberate conduct in seeking to uphold the law.
Justice Beazley, in this appeal, considered it reasonable that
in the context of a pursuit a police officer might make an error of
judgment in initiating or continuing their pursuit or in the speed
in which the pursuit proceeded. Her Honour followed the decision in
Hirst that it was also foreseeable that the police officer
might be negligent.
Justice Beazley disagreed with the trial judge's findings
that the failure to display registration plates was a low level
nature of offence. The Court of Appeal held that the absence of
registration plates could indicate that the vehicle was stolen or
unregistered. Both of those offences were not insignificant.
The decision solidifies the Court of Appeal's position on
the actions of police officers during police pursuits in relation
to issues of negligence. Whilst the reasonableness of the
performance of a police officer's duty does not escape judicial
scrutiny if damage results, reasonableness has to be considered in
context. Even though in this situation the collision was caused by
the actions of the police officer, the driver of the red Commodore
was still found to be negligent.
The case serves to protect the rights of the State of NSW in
recovering workers compensation payments made to their officers
from drivers the subject of a police pursuit in circumstances where
the police officer has been injured even though the collision was
solely caused by the police officer's actions.
1. Alsop P, Beazley JA and Macfarlan JA
2.  QCA 65: (2005) 2Qd R133
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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