State of NSW (NSW Police) v Nominal Defendant

The trial judge's findings 12 The trial judge made the following findings. The streets along which the Commodore and the police vehicle travelled were mostly residential, or partly light industrial. The vehicles passed one preschool and were within 500 m of another school. There was a preschool at the top of Wilson Street. Senior Constable Moor estimated the Commodore reached speeds of 100 km per hour at one stage of the pursuit, but otherwise its fastest speed was about 80 km per hour. The speed limit in the residential streets was 50 km per hour (at [25]). 13 Her Honour found, notwithstanding Senior Constable Moor's evidence that his speed immediately before the collision was 60-70 km per hour, that he must have been driving at a higher speed, because of the way the police vehicle bounced off the truck, spun around and collided with the Commodore. In reaching that conclusion, her Honour acknowledged, at [15], that there was no evidence of an expert, or any other kind to that effect. Later, at [39], her Honour apparently found that Senior Constable Moor was travelling at speeds of 80-100 km per hour during the course of the pursuit. 14 Her Honour then made the following findings:

(1) The absence of a rear registration plate on the Commodore gave Senior Constable Moor some cause for believing the vehicle was not registered. However, that barely established reasonable grounds for believing the vehicle was unregistered and that the driver was committing the offence of driving the vehicle unregistered: at [33].

(2) The absence of the registration plate initially gave Senior Constable Moor a basis to decide to pull the vehicle over, because he was not otherwise able to identify the vehicle or the driver in order to speak to the driver at a later time. However, it was a different question whether that justified the initiation or continuation of a pursuit: at [33].

(3) Driving an unregistered vehicle is at the low end of the scale of criminal offences: at [34].

(4) It was reasonably to be inferred that the driver of the Commodore saw the marked police car behind him: at [36].

(5) When the Commodore accelerated when it was about 50 m along Gang Gang Street, Senior Constable Moor formed the view that the vehicle was not going to stop and initiated the pursuit: at [36].

(6) It was not a reasonable decision for Senior Constable Moor to initiate a pursuit when the vehicle first accelerated in Gang Gang Street, because at that point, the evidence did not clearly establish that the driver was failing to stop, as Senior Constable Moor had not given him any signal to do so: at [34].

(7) Senior Constable Moor had the free choice not to initiate the pursuit: at [39].

(8) Although it was to be inferred that the driver of the Commodore saw the marked police vehicle behind him, the decision to initiate the pursuit at that point was precipitate: at [36].

(9) It was not a reasonable decision to continue the pursuit, given the low level nature of the offence that Senior Constable Moor considered had been committed: at [34].

(10) Once Senior Constable Moor activated his lights and siren, the driver of the Commodore must have know he was being pursued and should have avoided the risk of pursuit and injury by pulling over. He created a risk of injury by continuing to drive at high speeds: at [38].

(11) In continuing the pursuit, Senior Constable Moor caused the driver of the Commodore to drive faster than he had before the pursuit commenced: at [38].

(12) As it was not reasonable for Senior Constable Moor to continue the pursuit and given his voluntary and unreasonable decision to do so in circumstances where the offence did not warrant it, his actions broke the chain of causation: at [38]. 15 The trial judge held, at [39], that: "It was not foreseeable that Senior Constable Moor would initiate a pursuit at that point given what had happened until then and then continue it for the time and distance he did." 16 Having determined that Senior Constable Moor had not acted reasonably in initiating the pursuit, nor in continuing the pursuit, her Honour found, that the collision was caused by Senior Constable Moor's own and separate decisions to continue the pursuit. Her Honour held, therefore, that the collision was not caused by the driver of the Commodore. 17 The appellant contended that there was no evidence upon which her Honour could properly draw an inference that at the time Senior Constable Moor was coming over the hill, he was travelling at more than 60 km per hour. 18 In determining that the pursuit, both in its initiation and continuation, was unreasonable, the trial judge paid particular regard to the Police Service's Pursuit Guidelines. Under those Guidelines, "Urgent Duty" is defined as a "duty which has become pressing or demanding of prompt action" (emphasis added). Officers are directed that a pursuit is a last resort: "…only [to] be engaged [in] when the gravity and seriousness of the circumstances require such action and there are not other immediate means of responding ." (Emphasis added). 19 A pursuit is deemed to have commenced "at the time [the police officer] decide[s] to pursue a vehicle that has ignored a direction to stop". A pursuit is deemed to continue if the police officer: "… follow[s] the offending vehicle or continue[s] to attempt to remain in contact with the offending vehicle whether or not [the] Police vehicle is displaying warning lights or sounding a siren." 20 Under the Pursuit Guidelines, police officers are directed that: "The decision to initiate and/or continue a pursuit requires weighing the need to immediately apprehend the offender, against the degree of risk to the community and police as a result of the pursuit." 21 The Guidelines provide that a police officer is under no legal obligation to initiate a pursuit and that in many circumstances, the safety of the community and police will dictate that no pursuit be initiated. The Guidelines specify that police officers will not be the subject of criticism if a decision is made to terminate a pursuit. 22 When engaging in a pursuit, the police officer is required to: "… ensure that there is reasonable cause to believe that the person being pursued has committed … an offence; and the offender is attempting to evade apprehension." 23 The Guidelines further provide that pursuits will be terminated when: "The danger to the pursuing police or the public outweighs the need for the immediate apprehension of the offender/s. Factors to be considered include:

The speed of the pursuit; Location of the pursuit; Time of day/day of the week; Weather and road conditions; [and] Traffic density, including vehicles and pedestrians …" 24 A control mechanism is in place in relation to pursuits. A Duty Operations Inspector or, in the absence of the Duty Operations Inspector, the VKG Shift Coordinator, assumes the overriding control of a pursuit situation and must monitor the pursuit. The Duty Operations Inspector or VKG Shift Coordinator is required to continually assess the pursuit and determine whether it should continue. That officer must require the pursuit to be terminated in accordance with the Pursuit Guidelines.

Did her Honour err in finding that Senior Constable Moor's conduct in continuing the pursuit broke the chain of causation? 25 Causation in negligence is a question to be determined by applying common sense to the facts of the particular case: March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at [17], 515. In that case, Mason CJ pointed out, at [16], 514, that generally speaking a causal connection between a tortious act and damage is established if it appears that the plaintiff would not have sustained the injury if the defendant had not been negligent. The chain of causation is not necessarily broken by a more immediate cause of the loss or damage than the defendant's negligence. As Mason CJ said at [27], 518: "As a matter of both logic and common sense, it makes no sense to regard the negligence of the plaintiff or a third party as a superseding cause or novus actus interveniens when the defendant's wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff or a third party and that injury occurs in the ordinary course of things. In such a situation, the defendant's negligence satisfies the 'but for' test and is properly to be regarded as a cause of the consequence because there is no reason in common sense, logic or policy for refusing to so regard it."

See also Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 at [6], 528. In Bennett v Minister for Community Welfare [1992] HCA 27; (1992) 176 CLR 408 in the context of whether the later negligence of one of two tortfeasors broke the chain of causation, McHugh J said, at [13], 429: "The causal connection between a defendant's negligence and the plaintiff's damage is negatived by the subsequent conduct of another person only when that conduct is 'the free, deliberate and informed act or omission of a human being, intended to exploit the situation created by defendant' Hart and Honore, Causation In The Law, 2nd ed. (1985), p 136. When the subsequent conduct is a cause of the damage but is unrelated to the situation created by the earlier negligence, the subsequent conduct and the earlier negligence are treated as separate and independent causes of the damage." (Footnotes omitted) 26 The question of a causal connection between a driver's negligence and injury was again considered in Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, where the following explanation was given in the plurality judgment (Deane, Dawson, Toohey and Gaudron JJ) at [6], 6: "For the purposes of the law of negligence, the question whether the requisite causal connexion exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of commonsense and experience. And that remains so in a case such as the present where the question of the existence of the requisite causal connexion is complicated by the intervention of some act or decision of the plaintiff …which constitutes a more immediate cause of the loss or damage. … If, in such a case, it can be seen that the necessary causal connexion would exist if the intervening act or decision be disregarded, the question of causation may often be conveniently expressed in terms of whether the intrusion of that act or decision has had the effect of breaking the chain of causation which would otherwise have existed between the breach of duty and the particular loss or damage. The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent decision, the defendant's wrongful act or omission is, as between the plaintiff and the defendant and as a matter of commonsense and experience, properly to be seen as having caused the relevant loss or damage. Indeed, in some cases, it may be potentially misleading to pose the question of causation in terms of whether an intervening act or decision has interrupted or broken a chain of causation which would otherwise have existed. An example of such a case is where the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision ." (Emphasis added)

This last-mentioned example is of particular relevance to the circumstances of the case under appeal. See also Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232. 27 In Hirst v Nominal Defendant [2005] QCA 65; (2005) 2 Qd R 133 the Court was concerned with the application of these principles in a police pursuit case, the circumstances of which were more dramatic than those here. They need to be stated to understand the passages in the judgment of Keane JA to which I propose to refer. 28 The plaintiff, a police officer, suffered severe injury when the marked police car he was driving collided with another vehicle in the course of a high-speed pursuit. The pursuit involved an unidentified "blue car" and the pursuit was initiated because it was exceeding the speed limit by up to 26 km per hour in a 100 km per hour zone and had failed to stop when the police officer activated his police lights. 29 The pursuit involved speeds of up to 175 km per hour and dangerous overtaking of other vehicles on the road. The collision occurred when the blue car and a vehicle towing a trailer that had been overtaken disappeared over the crest of a hill. The police officer reduced his speed to 150 km per hour, but collided with the vehicle towing the trailer, notwithstanding that he braked heavily to avoid the collision. 30 Keane JA held that the driver of the blue car had both created the danger and then failed to end it by pulling over in response to the police officer's signal to do so. After referring to Medlin, his Honour continued, at [29]: "The reasoning in Medlin confirms the propositions that voluntary or deliberate or unusual conduct on the part of a plaintiff does not necessarily sever the causal nexus so as to relieve a negligent defendant from liability for loss suffered by a plaintiff; and that it is necessary to have regard to the extent to which the plaintiff's voluntary conduct has been constrained by the defendant's misconduct, and then to ask whether as between plaintiff and defendant it was reasonable of the plaintiff to make the choice which was the immediate cause of the loss. While they recognize that there may be a point at which it is possible to say that it is not reasonable as between the plaintiff and defendant that the defendant is responsible for the voluntary conduct of the plaintiff, eg because the choice made by the plaintiff may be so unexpected a response to the defendant's conduct that the defendant should not bear any of the consequences of that decision, it cannot be said that this point was reached in this case …" 31 His Honour also pointed out that the driver of the blue car remained liable notwithstanding that the police officer's own conduct, by pursuing the blue car at such high speeds may have contributed to the danger. As his Honour said, at [30]: "In summary on this issue, the Nominal Defendant's argument comes to this, that although the driver of the blue car owed a duty of care to [the police officer] for breach of which he or she would have been liable had an accident occurred in the course of the pursuit up to the point at which [the police officer's] speed reached 175 kph, that driver was able to avoid all liability by continuing to try to escape in a situation of even more elevated danger. It would be an odd result if the law were to hold the driver of the blue car liable up to that point, but regard him or her as freed of liability by persisting in unlawful conduct which was likely to lead to an even more dangerous situation. I do not consider that the law supports such a result." (Citations omitted)

Jerrard JA agreed. 32 In separate reasons, Douglas J agreed with the reasons of Keane JA. His Honour, at [53], referred to the general duty of the driver of the blue car not to expose the police officer to an unreasonable risk of harm noting that the trial judge had correctly added: "… a specific duty to avoid the risk of injury that could occur through a deliberate response of [the police officer] to this driver's conduct." 33 That duty was: "… not to expose [the police officer] to a risk of injury arising from his own deliberate conduct in seeking to uphold the law ": (Emphasis added)

See March v Stramare ; Medlin ; Environment Agency v Empress Car Co (Abertillery) Ltd [1998] UKHL 5; [1999] 2 AC 22, 31-32; and Reeves v Commissioner of Police of the Metropolis [1999] UKHL 35; [2000] 1 AC 360, 367-368. 34 Douglas J then directed his attention to the question whether, notwithstanding that the driver of the other vehicle had breached his duty of care, the police officer's actions had broken the chain of causation. His Honour said, at [55]: "To absolve [the defendant] of a duty of care from the point when [the police officer] might be criticized for pursuing him too enthusiastically would lead to the anomalous result described by Keane JA in his reasons at [30]. As Woodhouse J said in dissent in Pallister v Waikato Hospital Board [1975] 2 NZLR 725, 742: 'The concept of a novus actus interveniens does not embrace foreseeable acts in respect of which the duty of care has specifically arisen.' Negligent behaviour by a police officer engaged in a high-speed car chase is foreseeable. It does not free the tortfeasor, whose behaviour caused the chase, from continuing to owe the officer a duty of care ." (Emphasis added)

Jerrard JA agreed with these additional comments. 35 The approach taken in Hirst is well embedded in Australian law. Earlier in his judgment, Keane JA had referred to the submission of counsel based on an analogy with the duty of care owed by tortfeasors to rescuers. His Honour said, at [20]: "Thus in Haynes v Harwood [1935] 1 KB 146 the plaintiff police constable sued for negligence after he was injured while attempting to stop the defendant's runaway horses on a street on which a large number of people, including children, were present. In that case it was held that the defendant's negligence was the cause of the accident because: 'If what is relied upon as novus actus interveniens is the very kind of thing which is likely to happen if the want of care which is alleged takes place, the principle embodied in the maxim is no defence.'"

Was the pursuit reasonable? 36 The trial judge's reasons for finding that the initiation of the pursuit was unreasonable were essentially twofold: first, the "low level nature of the offence" that Senior Constable Moor believed had been committed; and secondly, because at the point he initiated the pursuit, there was no clear evidence that the driver was failing to stop, as at that time, the driver had been given no signal to do so (at [34]). 37 Before considering this aspect of her Honour's reasoning and the question whether Senior Constable Moor's conduct in relation to the pursuit was the cause of his injuries such as to break the chain of causation, there is a preceding issue that needs to be determined, namely, the nature and extent of the duty of care owed by the driver of the Commodore. 38 The trial judge found that the driver had breached his duty of care. Her Honour did not articulate the nature and extent of that duty, but it would seem that she considered that the duty was the ordinary duty owed by a driver to other users of the road. However, in accordance with Hirst, that is not the duty owed by a driver of a vehicle involved in a police pursuit. Rather, the duty was not to expose the police officer to a risk of injury arising from his own conduct in the performance of his duties: Hirst at [53]. 39 In that regard it is foreseeable that in the context of a pursuit, a police officer might make an error of judgment in initiating or continuing the pursuit, or in the speed at which the pursuit proceeded. Or, as Hirst demonstrated, it is also foreseeable that the police officer might be negligent. The chain of causation will not be broken in those circumstances if the negligence of the person "was itself a direct or indirect contributing cause of the intervening act or decision": see Medlin at [6]. 40 On the application of those principles to this case, the chain of causation was not broken in Senior Constable Moor's initiation or continuation of the pursuit. His initiation of the pursuit was undertaken in the performance of his duties in response to the wrongful conduct of the driver of the Commodore in failing to stop as he ought to have done. That failure continued throughout the course of the pursuit. Even if at some point Senior Constable Moor's conduct became unreasonable, that possibility was encompassed in the duty of care that was owed by the driver of the Commodore. 41 The respondent submitted that this was not a case involving a novus actus interveniens. It contended that had Senior Constable Moor not made the independent decision he did to initiate and continue the pursuit, the wrongful conduct of the driver of the Commodore would have posed no foreseeable risk to Senior Constable Moor. In my opinion, this submissions fails to come to terms with the principles stated in Medlin and Hirst to which I have referred above. 42 In any event, I have reached a different conclusion from her Honour as to the nature of the offence that had been committed and the reasonableness of Senior Constable Moor's conduct in the circumstances. 43 In my opinion, the offence is not an insignificant one. There may be a variety of reasons why a vehicle is not bearing registration plates. Two come immediately to mind. The vehicle may be unregistered or it may be stolen. 44 If the absence of registration plates is due to the vehicle being unregistered, the consequences can be significant. If an unregistered motor vehicle is involved in an accident due to the negligence of the driver, the State, through the legislative scheme creating the Nominal Defendant, is liable for damages payable to a person injured through the negligence of the driver. 45 If the absence of registration plates is because the vehicle is stolen, a view that the absence of registration plates was a low level offence such that a pursuit should not be initiated where the driver fails to stop, would mean that thieves and their accomplices, could drive around in stolen vehicles (having removed the registration plates) with impunity. Indeed, the owner or driver of an unregistered vehicle could do likewise. 46 Whilst the reasonableness of the performance of a police officer's duties does not escape judicial scrutiny if damage results, reasonableness has to be considered in context. The primary context is the law enforcement role of the police officer. The surrounding circumstances have to be considered, including the nature of the possible offence involved, the need to make quick decisions as to whether to take action and if so, what action to take. Indeed, many such decisions, of their nature, will be almost spontaneously reactive to the circumstances presenting themselves to the police officer. The police officer is also required, in the same short period of time, to weigh up whether, in making a decision to take action, the safety of the public outweighs the need to take action. So far as a decision to engage in a pursuit is concerned, the context will also include the instructions, directions and guiding concepts contained in the Police Service's Pursuit Guidelines. 47 In the present case, although Senior Constable Moor was not required to make a split second decision, the decision needed to be made within seconds of his observing both illegal conduct (that is, the failure to display the registration plate) and suspicious conduct (the acceleration away from the police car). The trial judge found that the latter conduct may have given Senior Constable Moor grounds for believing the driver of the Commodore was attempting to evade apprehension. For my part, I would think that there was no other reasonable explanation. Senior Constable Moor's belief would understandably have been reinforced by the failure of the driver of the Commodore to stop, once Senior Constable Moor activated his lights and siren. 48 The activation of the lights and siren was a command to stop. An attempt to evade such a command by fleeing is a serious matter in itself. At that stage, it was part of Senior Constable Moor's law enforcement function to determine whether to take action. It was reasonable for him to take action, for the reasons I have explained regarding the nature of the offence. If he exercised his judgment to take action there was then a need for "prompt action" and there were "no other immediate means of responding". The pursuit, therefore, fell within the Guidelines. Unless Senior Constable Moor was prepared not to pursue the Commodore, there was no effective means of apprehending the driver. 49 The trial judge's reasons for finding that the continuation of the pursuit was unreasonable were also based upon her finding as to the "low level nature of the offence" involved. Her Honour then found, at [38], that continuing "the pursuit in circumstances where the offence did not warrant it broke the chain of causation". In my opinion, for the same reasons that the initiation of the pursuit was reasonable, its continuation was also reasonable. 50 Once her Honour's findings as to the reasonableness of the pursuit are put to one side, her reasoning that led her to find a break in the chain of causation also falls away. That being so, her Honour should have found that the driver of the Commodore, as a matter of law, caused the accident. 51 I would add that the authority of police in the general course of their duties would be seriously undermined if a police pursuit, such as was initiated here, was held to be unreasonable. 52 Accordingly, in my opinion, the findings that should have been made in this matter were that the accident was caused by the negligence of the driver of the Commodore and Senior Constable Moor's conduct did not break the chain of causation.

Contributory negligence 53 The trial judge considered the question of contributory negligence, should she be wrong in her primary finding on liability. Her Honour held, at [52], that Senior Constable Moor contributed to the collision to the extent of 85 per cent in circumstances where: "Having regard to the low level of wrongful conduct by the Commodore driver prior to the commencement of the pursuit, and the manner of his driving during the pursuit, that he did not pull over and drove at speeds in excess of and sometimes double the residential speed limit, though in my view contributed to by Senior Constable Moor's continuing the pursuit, and having regard to Senior Constable Moor's continuing the pursuit, in all its circumstances, approaching the crest of Wilson Street at a speed greater than 60 kilometres per hour, when he was unfamiliar with that part of the road and did not know what lay beyond the crest." 54 In Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 McHugh J explained, at [16], 558 that: "… at common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which the plaintiff was exposed."

His Honour added: "In principle, any fact or circumstance is relevant in determining contributory negligence if it proves, or assists in proving, a reasonably foreseeable risk of injury to the plaintiff in engaging in the conduct that gave rise to the injury suffered." 55 The test of contributory negligence is an objective one: Joslyn v Berryman. As explained in Glasgow Corporation v Muir [1943] AC 448 at 457, contributory negligence, like negligence, "eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question": see also Joslyn v Berryman per McHugh J at [32], 564. The onus is on the Nominal Defendant to establish that Senior Constable Moor was guilty of contributory negligence. 56 In Podreberserk v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529 the High Court, in dealing with questions of apportionment between parties stated, at [10], that: "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ( Pennington v. Norris [1956] HCA 26; (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd . [1953] UKHL 4; (1953) AC 663, at p 682; Smith v. McIntyre (1958) Tas.SR 36, at pp 42-49 and Broadhurst v. Millman (1976) VR 208, at p 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."

See also Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 179 ALR 321. 57 The question of what is required of a person in exercising reasonable care for that party's own safety has to be determined in the context of the standard of the duty of care owed to her or him. In Hirst the trial judge had apportioned liability as between the Nominal Defendant and the police officer at two-thirds and one-third respectively. This apportionment was not interfered with on appeal. In that case, it will be remembered that the police officer's speed reached 175 km per hour. The trial judge found that at that speed, there was a high risk that the police officer would be unable to control his vehicle. On appeal, Keane JA stated, at [36], that the question to be determined in relation to contributory negligence was whether, in his decision to continue the pursuit at between 120 and 180 km per hour, the police officer had committed an error of judgment or whether there had been a failure to take reasonable care for his own safety. 58 This case is quite different from the circumstances that pertained in Hirst. Here, there was no question of such extraordinary speed, although speed has to be considered having regard to speed limits, locality, time of day, weather conditions and the like. Accordingly, the speed that Senior Constable Moor was travelling is relevant to the question whether he was contributorily negligent. It is thus first convenient to deal with the appellant's challenge to the trial judge's finding that Senior Constable Moor was travelling in excess of 60 km per hour. 59 Her Honour's finding is imprecise, in that she found that Senior Constable Moor was travelling at a speed greater than 60 km per hour approaching the crest of Wilson Street. I have already referred to the basis upon which her Honour rejected Senior Constable Moor's own assessment of his speed, namely, from the way the police car bounced off the truck, spun around and collided with the Commodore. Her Honour recognised that there was no evidence to support her finding but considered that she was entitled to rely on those factors. 60 I consider that her Honour erred in so doing. The speed and motion dynamics involved in the collision required expert evidence before her Honour could rely on those matters to determine that Senior Constable Moor was travelling in excess of 60 km per hour. The trial judge had no way of knowing what factors led the police vehicle to bounce off the truck, spin around and collide with the Commodore, and how those factors translated into any relevant dynamic equation. The angle at which the police car hit the truck; the part of each vehicle that collided; the ability of the police car to absorb shock on impact; and the ability of the truck to absorb the impact of the police vehicle may all have been relevant to this determination. Her Honour's finding was, in effect, a finding based on no evidence and for that reason should be rejected. 61 The question remains as to what speed the police vehicle was travelling. The onus of establishing that its speed was excessive was on the Nominal Defendant. However, that begs the initial question of what the speed was. The only evidence was that of Senior Constable Moor. 62 Senior Constable Moor said in evidence in chief that he was travelling between 60 and 70 km per hour as he came over the crest of the hill in Wilson Street. However, he was cross-examined on the basis that his evidence was that he was travelling 60 km per hour as he proceeded up to the crest of the hill. This seems to have been based upon a misapprehension of his evidence in chief. Nonetheless, in response to the questions put in cross-examination, he denied he was doing more than 60 km per hour. Her Honour's understanding of Senior Constable Moor's evidence and her statement that he was adamant that he did not accelerate beyond 60 km per hour, appears to be based on the cross examination. 63 However, given his evidence in chief, this Court should proceed upon the basis that he was travelling between 60 and 70 km per hour. Two questions then arise: in travelling at that speed, was he failing to take reasonable care for his own safety; and, had he been travelling at 50 km per hour, would the collision have been avoided? 64 In my opinion, there is no basis for finding that Senior Constable Moor was not taking reasonable care for his own safety in travelling at between 60 and 70 km per hour. Although his speed was above the speed limit and he was not familiar with that particular section of Wilson Street, there was nothing special or peculiar about the surroundings or the circumstances which made that speed unsafe. The circumstances included that that he was reasonably engaged in a police pursuit. He was aware of the hill and the crest. Although he was unfamiliar with that part of Wilson Street, his siren was operating to warn persons in the vicinity that there was an emergency situation occurring. The hill was not particularly steep, although the downside of the hill was not visible until the crest was reached. There was no suggestion in the evidence that the area was heavily trafficked and the video evidence suggests the contrary. In my opinion, travelling at 60 to 70 km per hour is a relatively low speed in the context of a pursuit. There was no basis for a finding that Senior Constable Moor failed to take reasonable care for his own safety in driving at that speed. 65 In any event, even if the normative requirement of reasonable care required Senior Constable Moor to take care to ensure he was able to stop in an emergency, there was no evidence that, if travelling at 50 km per hour, he would have been able to stop so as to avoid the collision. The onus was on the respondent to establish that that was the case and it adduced no evidence or material to do so. Had it done so, there would still have been a question in this case whether average braking distances and the like could have been used in circumstances where the police vehicle was fitted with an ABS braking system. Those brakes lock when applied suddenly. Even if Senior Constable Moor had been travelling at 50 km per hour, it is not a foregone conclusion that he would not have braked suddenly and therefore not a foregone conclusion that he would have been able to stop so as to avoid the collision.

Ground 5: error in assessment of future economic loss 66 The appellant's entitlement to an order under the Workers Compensation Act, s 151Z(1)(d) for an indemnity in respect of the workers compensation payments it had made to Senior Constable Moor is dependent upon the Nominal Defendant, as a third party tortfeasor, being liable to Senior Constable Moor in damages. Under s 151Z(2), an applicant cannot recover by way of indemnity any amount greater than the amount of damages payable to the injured party or which would have been payable had the injured party brought proceedings personally against the third party tortfeasor. 67 Although her Honour found a verdict for the Nominal Defendant, she nonetheless assessed the damages to which Senior Constable Moor would have been entitled had it been established that the Nominal Defendant was liable for the injuries to Senior Constable Moor. This was a proper course for her Honour to take. However, the appellant contended that her Honour erred in the manner in which she assessed future economic loss.

Senior Constable Moor's injuries 68 The appellant alleged that in the accident, Senior Constable Moor sustained injuries to his neck, back and shoulder and also suffered shock, anxiety and depression. The extent of the physical injuries was not seriously in issue. The dispute between the parties related to the extent to which Senior Constable Moor had suffered a psychiatric condition as a result of the motor vehicle accident and, in particular, whether any pre-accident morbidity was relevant to his post-accident psychiatric circumstances. 69 Senior Constable Moor had experienced a number of traumatic events in his police career prior to the date of collision. In particular, he had attended the Glenbrook train disaster, various fatal accident scenes, a suicide by hanging and a fire in which two children died. At different times, he had been treated by his general practitioner for anxiety and was prescribed Zoloft, about two years after he joined the police force. After this accident, he became depressed and anxious and could not sleep. He did not like to drive police cars. 70 In September 2004, whilst working as a Plain Clothes Police Officer, the police vehicle in which Senior Constable Moor was a passenger responded to a call to attend a break and enter and went to the location at speed, with lights and siren activated. Senior Constable Moor became terrified and told the officer driving the vehicle to slow down. The trip covered some of the same streets in which the pursuit had occurred in 2003. When Senior Constable Moor arrived at the scene of the break and enter offence, he felt physically sick, had symptoms of a panic attack and felt unable to do his job. These matters were not in dispute. Senior Constable Moor attended at work the next day, but after that did not return to work in the police service. He went on long term sick leave and was eventually discharged from the police service. 71 Senior Constable Moor was diagnosed as suffering a chronic and severe Post-Traumatic Stress Disorder. The medical opinion was effectively unanimous that Senior Constable Moor suffered from this condition, although there was a difference in the psychiatric evidence as to the genesis of the disorder. Dr Selwyn Smith, for example, considered that the disorder dated from the time of the Glenbrook train disaster. Dr Walden was of the opinion that Senior Constable Moor's symptoms prior to the 2003 accident were symptoms of generalised anxiety and concern as to what could happen next. She considered he developed more specific phobic symptoms after the 2003 accident, but that clear symptoms of a Post-Traumatic Stress Disorder and a probable Major Depressive Disorder did not exhibit themselves until after the incident in September 2004. Dr Walden said that it was: "… likely that the incident of 17 December 2003 primed [Senior Constable Moor] for the response in relation to the incident of September 2004." 72 Dr Walden was of the opinion that Senior Constable Moor's response to the September 2004 incident would not have caused a Post-Traumatic Stress Disorder without the incident of the motor vehicle collision in 2003 having occurred. Dr Walden said that: "In this way, I do see what occurred in response to 2 September 2004 as arising from the incident of 17 December 2003."

Dr Walden attributed Senior Constable Moor's level of impairment equally to the December 2003 and September 2004 incidents, but reiterated that without the 2003 incident, Senior Constable Moor would likely not have responded as he did to the 2004 incident. 73 The trial judge found, at [70], that the appellant had established on the probabilities that the Post-Traumatic Stress Disorder Senior Constable Moor developed after the 2004 incident was an injury that occurred because of the 2003 collision, which put him in a condition or state which caused him to respond as he did to the 2004 incident. Her Honour accepted that notwithstanding that Senior Constable Moor's condition resulting from his Post-Traumatic Stress Disorder had improved, it was likely that he would relapse severely if he returned to his substantive position in the police service. Her Honour also found, at [86], that but for the 2003 collision and 2004 incident, Senior Constable Moor would have been promoted to the rank of Sergeant by 2006, despite his earlier experiences of stress in the police service.

Trial judge's finding as to past economic loss 74 Having not returned to work with the police service, Senior Constable Moor commenced working with the Probation and Parole Service some time in 2005. He worked for a period of about six to eight months part-time and then took up a full-time job. He had been working full-time for 18 months to two years prior to the date of the hearing. His duties involved monitoring and supervising offenders within the community. This involved doing case plans, supervising offenders on parole and doing reports for courts. Senior Constable Moor commenced in the Probation and Parole Service at the top of the scale for his position because of his policing experience. It would have been possible for him to apply for a management position, but he had decided not to do so, because he did not want the added stress. He said that prior to the accident, he would have been a person who would have looked for that added challenge. 75 The trial judge assessed Senior Constable Moor's past economic loss in the sum of $71,817. There is no challenge on appeal to that assessment.

Trial judge's finding as to future economic loss 76 Her Honour made the following critical findings in respect of future economic loss. First, her Honour was not persuaded that Senior Constable Moor would have remained in the police service long-term, because of his prior experiences of stress, which she anticipated may have increased upon promotion to more senior levels. Her Honour also found that his current level of employment in the Probation and Parole Service was a matter of choice not to place stress upon himself, rather than being limited by his ability, or by the effects of the collision and injury. Her Honour considered, therefore, that the Nominal Defendant should not be liable for Senior Constable Moor's reduced earning capacity, when part of that reduced capacity arose from his own choice to remain at a level of employment he found comfortable. 77 Her Honour concluded, at [91], that the appellant had "just barely established some future economic loss" by Senior Constable Moor. She considered that in the circumstances it would not be appropriate to make an award assessed by reference to a weekly amount. Rather, "a very modest buffer" would have been appropriate. Her Honour did not fix the amount of that buffer, given that she had concluded that the appellant had not established the Nominal Defendant was liable to it. It was the agreed position of the parties that if her Honour was wrong in her approach to the assessment of damages for future economic loss, an appropriate award was by way of a buffer: see Parks v Penrith City Council [2004] NSWCA 381 at [5]. It was agreed that a sum of $70,000 would represent an appropriate award in the circumstances. 78 The appellant submitted that her Honour erred in her approach to future economic loss, in that she failed to recognise and apply the hypothetical nature of the enquiry mandated by MACA, s 126. Senior counsel for the appellant submitted that s 126 reflected the common law as stated in Graham v Baker and Malec. The appellant submitted that her Honour erred in her approach to future economic loss because she treated two facts in Senior Constable Moor's circumstances as certainties, whereas she should have assessed the degree of probability of those matters occurring. The two facts were that Senior Constable Moor would have left the police service by the time of the trial and that his current level of work was a personal choice unassociated with the accident. 79 The appellant contended that, by approaching the assessment of damage in that way, her Honour failed to engage in the process required by MACA, s 126. In particular, it contended her Honour failed to follow s 126(1) and determine whether she was satisfied that the assumptions about Senior Constable Moor's future earning capacity accorded with his most likely future circumstances but for the injury. It was submitted that her Honour then failed to adjust, pursuant to s 126(2), the amount of damages for future economic loss which would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury. In that regard, it was submitted that the adjustment required by s 126(2) could be an upwards or downwards adjustment. 80 The respondent contended that there was no error in the trial judge's approach to future economic loss and that her conclusion that a very modest buffer was appropriate was supported by her findings. In particular, it was submitted that the two critical findings, that it was improbable that Senior Constable Moor would have stayed in the police service beyond the date of trial and that his refusal to take on more senior management positions in the Probation and Parole Service was a personal choice unassociated with the psychological injuries he had sustained in the collision were properly based on the evidence.

Application of s 126 81 Section 126 provides: " 126 Future economic loss - claimant's prospects and adjustments

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."

(Section 126 is in the same terms as the Civil Liability Act 2002, s 13). 82 It is reasonable to comment that the drafting of s 126 is not particularly clear and its proper construction and thus application has caused the courts considerable anxiety. There have been calls for legislative clarification: see MacArthur Districts Motor Cycle Sportsman Inc v Ardizzone [2004] NSWCA 145; (2004) Aust Torts Reports 81-744. In this case, the Court requested the parties to provide a joint note as to the history of s 126. In providing those submissions, the parties indicated a common approach to the proper construction of the section. 83 Pursuant to that request, the parties submitted that the correct approach to s 126 was: first, to arrive at an assumption as to the plaintiff's most likely earnings had the plaintiff remained uninjured: s 126(1); and secondly, to take into account other possibilities in adjusting the resulting calculation of damages for future economic loss for contingencies, including that the plaintiff's earnings may have been higher or lower had the plaintiff remained uninjured: s 126(2). Section 126(3) then required the Court to make explicit the assumptions upon which the award was based. In this regard, the assumptions in s 126(1) and s 126(2) had to be specified. 84 The parties further submitted that in the usual case, the Court could award damages for future economic loss by determining the difference between the plaintiff's "most likely" future earnings uninjured and "most likely" earnings injured. In determining the first of these integers, they accepted that the Court may take into account a range a possible future circumstances had the plaintiff remained uninjured. In that regard, they accepted that the correct approach to the assessment of future economic loss under s 126 was the approach approved by the Court in Norris v Blake (by his Tutor Porter) (No 2) (1997) 41 NSWLR 49; (1997) 25 MVR 101. The parties also submitted that that assessment would then be made subject to a discount for vicissitudes and suggested that, in the normal course, the usual discount for vicissitudes would be 15 per cent. 85 Some comment is required in respect of Norris v Blake (No 2) and the adjustment made for contingencies. Before dealing with those two matters, reference should also be made to Graham v Baker and Malec. 86 Graham v Baker is authority for the basal proposition that an injured plaintiff recovers not merely because his or her earning capacity has been diminished, but because the diminution of his or her earning capacity is, or may be, productive of financial loss. 87 In Malec, Deane, Gaudron and McHugh JJ explained how the assessment of that loss is to be undertaken. Although the relevant passage is long, it is appropriate to set it out in full, given that the appellant relied upon it as being the framework for the proper construction of s 126. Their Honours stated, at [7], 643: "If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v. McMonagle (1970) AC 166, at p 174; Davies v. Taylor (1974) AC 207, at pp 212, 219; McIntosh v. Williams (1979) 2 NSWLR 543, at pp 550-551. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place." 88 The appellant contended that s 126 replicated this approach. The respondent did not contend to the contrary. In circumstances where the parties have agreed as to the construction of s 126 in this case, I do not consider that it is useful to enter upon an exegesis on the point. That should await an occasion when the construction of the section is directly in issue. This case turns upon whether her Honour erred in treating as a certainty that Senior Constable Moor would have left the police service by the time of the trial and whether his decision to remain in a non-management position was a personal choice or whether his inability to it was causally related to his Post Traumatic Stress Disorder. 89 However, as both parties accepted that the approach in Norris v Blake (No 2) applies in these circumstances, a consideration of that case is appropriate. 90 Norris v Blake (No 2) was concerned with the future economic loss of a promising young actor who was seriously injured in a motor vehicle accident. The trial judge approached the assessment of future economic loss on the basis that given his potential, there were a number of possibilities relating to his future career. He thus made an assessment of the percentage likelihood of each of the possibilities that the respondent would be a superstar, have considerable success, have moderate success or have a solely Australian career. The trial judge then adopted a "weighted average method of assessment" of future economic loss. He did this by determining what the young actor would have earned had he reached and remained in each of the four categories. His Honour identified the plaintiff's possible future employment prospects and then applied the percentage which he had allocated to each of the categories. That method was described by an expert accountant as being "a decision analysis tool which provides a structured and logical treatment of a range of hypothetical or subjective estimates". 91 On appeal, Clarke JA (Handley and Sheller JJA agreeing) rejected that such an approach was appropriate, except in limited circumstances. Rather, his Honour said, at 73: "The proper approach is to assess what it was most likely he would earn during the rest of his working life and adjust this for contingencies including the possibility that he might have done far better." 92 Applying that approach, Clarke JA (at 78) held that the actor would have earned $750,000 per annum until he reached the age of 60 years. His Honour then allowed an additional $2,500,000 by way of contingency to take account of the loss of the actor's chance to succeed in America and the real possibility that he would have earned income after the age of sixty years. His Honour considered that this approach was consistent with the observations as to vicissitudes in Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541. 93 The adjustment for vicissitudes is the second matter upon which brief comment should be made. In Bresatz v Przibilla Windeyer J said at [3], 554: "… the generalisation, that there must be a 'scaling down' for contingencies, seems mistaken. All 'contingencies' are not adverse: all 'vicissitudes' are not harmful. A particular plaintiff must have had prospects or chances of advancement and increasingly remunerative employment. Why count the possible buffets and ignore the rewards of fortune? Each case depends upon its own facts. In some it may seem that the chance of good fortune might have balanced or even outweighed the risk of bad." 94 In Teubner v Humble [1963] HCA 11; (1963) 108 CLR 491 at [15], 508-509, Windeyer J (McTiernan J agreeing), again emphasised that vicissitudes could be positive or negative. This is now well accepted. In Luntz, Assessment of Damages for Personal Injury and Death, 4th ed, (2002) Butterworths, at 381, the author identified sickness, accident, unemployment and industrial disputes as the four major adverse contingencies which expose employees to loss of income. In the current Australian economic and industrial climate the last of these might arguably be seen to be of little weight. But economic times can change swiftly. The point of principle is that in the course of a person's lifetime, a variety of contingencies, negative and positive, will affect a person's earning capacity. 95 It has been long accepted that in a 'usual case' the court is justified in applying a conventional deduction for vicissitudes. In Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485, Dawson, Toohey, Gaudron and Gummow JJ said, at [19], 497-498: "It is to be remembered that a discount for contingencies or 'vicissitudes' is to take account of matters which might otherwise adversely affect earning capacity and as Professor Luntz notes, death apart, 'sickness, accident, unemployment and industrial disputes are the four major contingencies which expose employees to the risk of loss of income'. Positive considerations which might have resulted in advancement and increased earnings are also to be taken into account for, as Windeyer J pointed out in Bresatz v Przibilla '(a)ll 'contingencies' are not adverse: all 'vicissitudes' are not harmful'. Finally, contingencies are to be considered in terms of their likely impact on the earning capacity of the person who has been injured, not by reference to the workforce generally. Even so, the practice in New South Wales is to proceed on the basis that a 15% discount is generally appropriate subject to adjustment up or down to take account of the plaintiff's particular circumstances." (Citations omitted) 96 In Government Insurance Office of New South Wales v Wojnar (Court of Appeal, 15 December 1988, unreported), at 13, the Court said: "A conventional discount of 15% … is allowed in many cases, although this Court has been at pains to say that there is no warrant for inflexibility in fixing the appropriate deduction. The eventualities which people, individually, are likely to face in their lives necessarily vary enormously. They are particular to each injured claimant." 97 In Nestle Australia Ld v McDougall [1998] NSWCA 158 I noted (Mason P and Powell JA agreeing) that a survey of the authorities revealed that the Court had applied discounts of up to 40 per cent for vicissitudes, although in NSW Insurance Ministerial Corporation v Sprengnagel [1995] NSWCA 315 a 40 per cent discount had been described as "high". Nestle emphasised that whether or not the "usual discount" should be applied depended upon the facts of the particular case. 98 This approach to contingencies has so far survived the introduction of s 126 as is apparent from the joint submission of the parties. 99 As I have indicated, the parties have agreed as to how s 126 should operate, including the application of a usual discount for contingencies. As the case does not throw up any unusual features, it is appropriate to adopt the approach suggested by the parties. 100 The question in this case becomes, therefore, whether her Honour erred in finding as a certainty that Senior Constable Moor would have left the police service by the time of the trial and that his current level of work was a personal choice unassociated with the accident. These were factual questions. This is an appeal by way of a rehearing: the Supreme Court Act 1970, s 75A. Although the trial judge's findings require respect, this Court nonetheless has an obligation to review for itself the evidence and if it comes to a different decision from the trial judge, it has an obligation to give effect to its own decision. These principles were discussed in depth in Gett v Tabet [2009] NSWCA 76.

The evidence in respect of future economic loss 101 Senior Constable Moor initially completed his schooling in Year 10 and after a number of unskilled jobs, obtained his Higher School Certificate and then completed a Bachelor of Teaching in Infant and Primary in about 1995. Shortly thereafter, he joined the New South Wales Police Force. In 1996, he completed a Certificate of Policing and in 2000, he completed a Diploma in Policing at Charles Sturt University. At the time of the accident, he was a Senior Constable, probably at about the third highest level of that rank. He had already passed the Sergeant's exams and he explained that the next step was to commence applying for individual Sergeant's jobs as they became available. He said that he had intended to do that. 102 Senior Constable Moor said that after the incident in September 2004, he felt constantly on edge and anxious. He was fearful that he would get into the same situation again, that is, having to drive or be a passenger in a police vehicle travelling at high speeds and he said he "just couldn't do it". 103 Since the accident in December 2003, up to the time of the court case, he continued to take Zoloft, an antidepressant drug. He stopped taking that medication for a short period, but his anxiety and depression returned and he ended up being hospitalised overnight, with suicidal feelings, anxiety and depression. He was discharged after one night and was referred back to his psychiatrist, whom he then saw every couple of months. He also had contact with his general practitioner in relation to his emotional state, from time to time. 104 He said he was able to cope in his job in the Probation and Parole Service, although he got "a bit stressed and a bit anxious at times". As I have already indicated, he explained he was not proposing to apply for a management position because he did not want the added stress, although prior to the accident in December 2003, he would have been a person who looked for that added challenge. He was not cross-examined on any of these matters. 105 The appellant supported its case by two psychiatric reports. One, by Dr Roberts, was dated 3 August 2005 and obtained in connection with Senior Constable Moor's medical discharge from the police force. Dr Roberts expressed the opinion that, although Senior Constable Moor's condition had improved, it was very likely that he could relapse severely if he returned to his substantive position in the police service. 106 The second was the report of Dr Walden, who was of the opinion that Senior Constable Moor had some residual anxiety symptoms which were consistent with Post Traumatic Stress Disorder in substantial remission. She considered that his Major Depressive Disorder was also currently in remission and she noted that he remained on antidepressant medication. Dr Walden was of the opinion that there was a continuing level of permanent impairment, which she classified by reference to a 'rating scale'. This scale was relevant to her assessment of whole person impairment. Relevantly, she attributed class 1 to his self-care and personal hygiene, social and recreational activities and social functioning. Overall, this meant he was functioning well in respect to those matters. However, she attributed class 2 to the items of travel, concentration, persistence and pace and adaption. She noted that whilst he was able to travel by public transport and could drive in the local area, he avoided driving at speeds, or further afield. She also noted he described some subjective reduction in concentration towards the end of the working day. So far as adaption was concerned, she considered he was likely to experience a relapse of symptoms of anxiety and depression, were he to return to normal operational policing duties. She considered him fit to work fulltime in duties of comparable complexity outside the police service, such as his current work in the Probation and Parole Service. 107 Dr Roberts and Dr Walden were not required for cross-examination. 108 The respondent did not adduce any medical evidence. Nor did it cross-examine Senior Constable Moor in relation to these matters. 109 In my opinion, the evidence did not support the two findings made by her Honour. Rather, the overall thrust of the evidence was that Senior Constable Moor intended to stay in the police service. Her Honour should have found, therefore, in accordance with s 126(1), that was the case. Her Honour should also have found that his decision not to apply for higher management-type positions within the Probation and Parole Service was causally connected to the psychiatric condition he sustained in the 2003 collision. She should then have considered whether the amount assessed in accordance with s 126(2) required adjustment, including for the fact that Senior Constable Moor may not have remained in the police service. 110 In those circumstances, the appellant has established that her Honour erred in her findings in respect of future economic loss. In accordance with the acknowledgement by the respondent that if error was established, a buffer in the sum of $70,000 was an appropriate award for future economic loss, that award should be made.

Conclusion 111 For the reasons I have earlier given, the appeal should be allowed. 112 I propose the following orders:

Set aside the verdict for the defendant/respondent;

Set aside orders 2 and 3 made by the trial judge;

Order that there be verdict and judgment for the appellant; and

Direct the parties to bring in short minutes of order in accordance with these reasons within seven days. 113 MACFARLAN JA: I agree with Beazley JA. **********

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.