Australia: Causal Link Not Severed By Reasonable Act Of Police Officer In Pursuit

Last Updated: 16 August 2009
Article by Belinda Wightley

State Of NSW (NSW Police) v Nominal Defendant [2009] NSWCA 225

NSW Court Of Appeal1

In Brief

  • 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 decision.


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 Nominal Defendant.

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. [2005] QCA 65: (2005) 2Qd R133

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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