New South Wales v Brown [2003] NSWCA 21 (14 February 2003)

Last Updated: 17 February 2003

NEW SOUTH WALES COURT OF APPEAL

CITATION: State of New South Wales v Brown [2003] NSWCA 21

FILE NUMBER(S):

40052/02

HEARING DATE(S): 9 October 2002

JUDGMENT DATE: 14/02/2003

PARTIES:

State of New South Wales

v

Brian A Brown

By his Tutor Dulcie Brown

JUDGMENT OF: Handley JA Giles JA Hodgson JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 70071/98

LOWER COURT JUDICIAL OFFICER: English DCJ

COUNSEL:

B H K Donovan QC/S C Finnane (Appellant)

G R Petty SC/R E Quickenden (Respondent)

SOLICITORS:

I V Knight, Crown Solicitor (Appellant)

J J Lees, Gorokan (Respondent)

CATCHWORDS:

NEGLIGENCE - police - duty to rescuer - no question of principle

LEGISLATION CITED:

DECISION:

Appeal allowed with costs - orders made

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

40052/02

DC 70071/98

HANDLEY JA

GILES JA

HODGSON JA

14 February 2003

STATE OF NEW SOUTH WALES v BRIAN A BROWN

by his Tutor Dulcie Brown

NEGLIGENCE - police - duty to rescuer - no question of principle

A van containing an adult woman and her four children left the road and collided with a power pole. The woman was thrown from the vehicle and became unconscious. Rescuers safely removed the three eldest children and the mother was taken to hospital. However, despite inspecting the interior the police did not discover a 7 weeks old baby who had not been secured in a baby capsule and was lying injured and unconscious under the rear seat obscured by the disarray within. When the police became aware from hospital records that the woman had recently had another child they passed a message to the driver of the tow away vehicle carrying the damaged van asking him to check for a young baby inside. He had been working as a tow truck operator for 18 to 19 years. As a result of finding the injured baby the driver suffered a psychiatric illness and sued the police for negligence. The trial Judge upheld this claim and awarded damages.

HELD: Allowing the appeal and entering judgment for the police: (1) They had not failed to exercise reasonable care in inspecting the vehicle. At least six people, including four trained rescue workers, had looked inside the van without discovering the baby or suspecting her presence. (2) They had not been negligent in a situation of emergency in asking the tow truck driver to look for the baby inside the vehicle.

ORDERS

(1) Appeal allowed with costs;

(2) Judgment for the plaintiff in the District Court set aside and in lieu thereof enter judgment for the defendant with costs;

(3) The respondent to have a certificate under the Suitors Fund Act in respect of the costs of the appeal.

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

40052/02

DC 70071/98

HANDLEY JA

GILES JA

HODGSON JA

14 February 2003

STATE OF NEW SOUTH WALES v BRIAN A BROWN

by his Tutor Dulcie Brown

Judgment

1 HANDLEY JA: The State has appealed from the judgment of English DCJ in a psychiatric injury case based on a finding of negligence against police officers called to the scene of a motor vehicle accident. A Toyota Tarago van had left the road near Charmhaven on the Central Coast some time after 8 am on Saturday 2 February 1995 and collided at speed with an electric light pole.

2 The plaintiff, who owned and operated a tow truck business, Doyalson Smash Repairs at Doyalson, was called by police to remove the damaged van to his holding yard. He was contacted by his son on the radio while returning to his yard with the damaged van and told that there could be an injured child in the back. He stopped but couldn't see the child or get inside. After arriving at his yard and unloading the van he unlocked the rear hatch type door and forced it open. He then found the child and took her in his arms and attempted to comfort her until an ambulance arrived. The child died soon after admission to hospital. The plaintiff suffered nervous shock, which developed into a psychiatric illness.

3 The Judge found that the risk that the plaintiff would suffer psychiatric injury if he discovered a badly injured child in the vehicle was reasonably foreseeable and that the attending police officers owed him a duty of care. She further found that the police officers had been negligent, particularly in failing to search the van carefully before directing its removal. The State challenges the findings of duty and breach and the assessment of damages.

4 On the morning of the accident the driver, Mrs Rachel Bass, decided to leave her husband with her four children. She left in a hurry and failed to properly secure Jade, her baby of 7 weeks, or fasten her own seatbelt. There was no baby capsule in the vehicle. Mrs Bass was thrown from the vehicle on impact and was found unconscious on the roadway. Her eldest son, Shannon, then 6, was trapped in the front passenger seat. Her second son, Cameron, was in a car seat at the rear, and her third son, Luke, in a car seat in the middle. Jade, who had apparently been lying unsecured in a bassinette on the floor in front of the rear seat, suffered head injuries and was lying unconscious under the rear seat behind the upturned bassinette.

5 Nearby residents took Cameron and Luke into their homes. They were unable to release Shannon and they did not become aware of Jade's presence. An ambulance arrived and the senior officer, Mr Kevin Brown (Brown), was told by an elderly gentleman, in answer to his question, that "everybody", except Shannon, was out of the van. Brown asked where they were and was told that they had been taken to houses nearby. His evidence continued (70):

"... a woman came out of the house with a baby in her arms and the boy that was standing up in the front of the car said `the baby' and we said `yes we've got the baby'. We assumed that was the baby".

6 The statement of claim did not allege that the ambulance officer had been negligent.

7 The next to arrive were three officers of the Volunteer Rescue Service, one of whom, Mr Mark Constable (Mark Constable), set about freeing Shannon. He was later assisted by Constables Renwick and Knight from Toukley Police Station. The statement of claim did not allege that the officers of the Volunteer Rescue Service had been negligent.

8 Constable Knight was told by one of the residents that the two other children had been removed from the van and were uninjured. Constable Renwick examined the interior and noticed that there were two upright child restraints in the middle bench seat and a single upright child restraint on the rear bench seat. He saw no baby capsule, but there was an upturned baby's bassinette on the floor between the rear and middle seats.

9 Constable Renwick travelled in the ambulance to Wyong Hospital with Mrs Bass. In his absence Constable Knight directed the removal of the wrecked vehicle after Shannon had been released.

10 When Constable Renwick became aware from records at Wyong Hospital that Jade had been born seven weeks earlier he took immediate steps to locate her. He telephoned Toukley Police Station, and as a result an officer was directed to conduct a thorough search at the scene of the collision. Another officer telephoned the plaintiff's business premises and spoke to his son who telephoned the plaintiff and asked him to stop and look for the baby.

11 Brown had inspected the van at the scene of the accident. He noticed that the sliding door was partly open and slid it back, got in, looked in the front and the back, seeing clothing and an unattached child's seat but did not see Jade. He also saw a "washing basket" on the floor. He was satisfied no one else was inside.

12 Mark Constable looked inside the van from one side after Shannon had been released. He remembered seeing two car seats directly behind the driver's seat and he also described a wicker basket, which he said looked like a washing basket, on the floor. He did not conduct any further search.

13 Constable Knight, who was the only police officer called to give evidence, was the junior officer at the scene. However plaintiff's counsel tendered the record of the inquest into the death of Jade which included statements by Constable Renwick and Constable Knight.

14 The Judge found that the defendant knew that exposure to a seriously injured child could result in psychiatric injury and that the injury the plaintiff suffered was neither far fetched nor fanciful. This finding was based on the 1990 Operational and Training Guide of the New South Wales Police Service, which stated: "Certain events have been demonstrated to be particularly distressing for emergency service personnel including ... death or serious injury to children".

15 On the basis of Police Instruction 110.01, the Judge found that they had a statutory duty to locate all persons who were injured in motor vehicle accidents, and that under s 50 of the State Emergency Services Management Act they had a duty to co-ordinate rescue operations.

16 She found that it was the duty of the police officers to properly search the van and they breached their duty by failing to do so. It was not sufficient for them to rely upon passers-by who had removed two small children from the van. She found that Shannon, the boy trapped in the front seat, "kept asking about a baby", and that there was "clearly" a baby's bassinette on the floor between the middle and back seats of the vehicle. She said that it was "absurd" to suggest that Luke, a 15 month old child, who Brown saw in a woman's arms, was "the baby".

17 She found that as a result of the negligence of "the officer" of the Police Force the plaintiff was exposed to the risk of finding a seriously injured baby, and that this was a supervening cause which broke the chain of causation between the negligent driving of Mrs Bass and the psychiatric injury suffered by the plaintiff. She said it was not the role of members of the public to reassure the police that all of the occupants of a vehicle had been removed. She said that there were "indicia" of a tiny baby, and it would have been a simple enquiry to bring Luke, the next youngest child, to Shannon to ensure that all the children were accounted for.

18 There are several difficulties with these findings. The Operation and Training Guide did not state that this type of exposure "could result" in psychiatric injury. It stated that such exposure was "particularly distressing", which might be thought to be a statement of the obvious and not the same as saying it could cause psychiatric injury. The Police Operation Manual could not, itself, create a statutory duty. It was neither a statute nor a statutory instrument. But even if it did create a statutory duty, it would have been one owed in public law to the State and not in private law to persons injured in motor vehicle accidents. Even if there had been a duty of the latter kind, it would not have extended, as such, to rescue workers or other persons such as the plaintiff, whose work took them to the scene of accidents.

19 The Judge's finding that Shannon "kept asking about a baby" is not supported by the evidence. The only evidence on that topic was given by Brown, who said (70) that Shannon asked about the baby and was told by him: "yes, we've got the baby". Brown assumed that Luke, who he had seen in the arms of a woman who had come out of one of the homes, was the baby Shannon had referred to. It was not suggested that any police officer heard this conversation. After this assurance Shannon did not need to keep asking the same question and there was no evidence that he did. Although the Judge said it was "absurd" to suggest that a 15 month old child could be described as a baby, that is how Brown described Luke, and his honesty was not challenged. The question was what Brown reasonably thought Shannon meant when he referred to "the baby". Shannon was only 6 (290) and Brown might reasonably think that Shannon was referring to Luke. If he felt any doubt at the time he would presumably have taken further action.

20 The State was not sued for the negligence of Brown, and the findings of negligence against him cannot support the judgment against the State. However, as will appear, those findings cannot stand.

21 The Judge said that the police officers were not entitled to rely upon the passers-by who removed the other young children from the van, but it had also been examined by Brown and Mark Constable. She said that there was "clearly a baby's bassinette" on the floor and indicia of a tiny baby. However, a bassinette can be used to carry clothing and the like and with three young children in the van a bassinette did not necessarily indicate the presence of a fourth.

22 In my judgment the Judge erred in law in holding that the police had a statutory duty "as well as a commonsense duty to locate all persons who are injured in motor vehicle accidents". There was no statutory duty and the common law duty was not absolute.

23 The Judge found a further breach of duty by the police stating that "It would have been a simple matter for the police to stop the tow truck and to search it properly themselves, rather than to expose the plaintiff to the risk of finding that seriously injured baby". In my judgment this would not have been a simple matter at all.

24 When Constable Renwick learnt from records at Wyong Hospital that Mrs Bass had a fourth child, who was only seven weeks old, he had to act without delay. The child could be badly injured because she had not been secured in a baby capsule and had not been crying. He acted reasonably by causing a message to be passed by telephone to the plaintiff in his truck.

25 The hospital is some 4 kms south of the accident site according to a street directory. The plaintiff's holding yard was about 6 kms north of the accident site, and there was no direct route from Toukley Police Station, which was about 6 kms east of the hospital, because of Budgewoi Lake. Constable Renwick had travelled in the ambulance and did not have access to a police vehicle or the police radio system. Time would have been lost if the van could not be searched until police arrived, and the evidence does not reveal where the nearest available police vehicle was, or how long it would have taken for it to get to the yard.

26 In my judgment Constable Renwick was not negligent when he caused a message to be sent to the plaintiff asking him to stop and look for an injured child. The duty of the police to the child, who could well be seriously injured if she was alive, prevailed over any inconsistent duty to protect the plaintiff from the possibility of psychiatric injury, but in any event Constable Renwick, who had to make an immediate decision in "the agony of the moment", could not be liable in that situation for what, at worst, was no more than an error of judgment. Accordingly this finding of negligence against the police cannot stand.

27 The only other finding of negligence against the police was based on their failure, in particular the failure of Constable Knight, to carefully search the van for a possible fourth child. The standard of care required was that of an ordinary reasonable person. It was not a standard of perfection. Once it is known that there was a fourth child in the van the bassinette and other indicia of a baby can be seen as significant. However the persons who looked inside at the scene of the accident did not know there was a fourth child.

28 A photo of the centre seat (photo 28) shows one unattached child's car seat resting face down against the front seat, and a second child's car seat properly attached. Other photos (30, 32, 34 and 35) show the rear seat with a single child's car seat properly attached. Shannon, who was 6, was too old for a car seat and should have been in a seatbelt. Accordingly the unattached child's car seat did not suggest the presence of a fourth child, and Jade was not and should not have been in such a seat, let alone one that was loose.

29 The bassinette could have been for a very young baby but could just as easily have been for use as a clothes basket now that Luke was too old to be carried in it. The clothes in the rear section shown in the photos would suggest it was being used for this purpose.

30 A child of Jade's age could not lawfully be carried in a motor vehicle in a child's car seat or bassinette but had to be in a baby's capsule. There was no capsule in the van and the police and other rescue workers were entitled to think that this meant that there was no unaccounted for baby. The Judge did not refer to this significant fact.

31 Other indicia of the presence of a young baby were the baby bottles shown on photo 29 (285) and a bag of nappies (302, 310). However the baby bottles could and probably were used for providing Luke with milk and other fluids, especially if Mrs Bass was breastfeeding Jade. There was no evidence about this but Judges may be permitted to know that baby bottles are used by children of Luke's age and older and Luke at 15 months would not be out of nappies.

32 Photos 34 and 35 show the rear compartment of the van with the folded stroller blocking the view under the rear seat. These may be compared with photos 36 and 37 which show a clear view after the stroller had been removed. Photo 25 of the rear of the van shows why the plaintiff and others could not see Jade when the rear door was closed.

33 The fact that there was no baby capsule, and the equivocal nature of the other evidence which was consistent with there having been only three children in the van, is sufficient to demonstrate error in the Judge's finding that the police search was negligent. The issue becomes perfectly clear when one views the scene, not through the magnifying glass of hindsight, but through the eyes of the persons who looked inside the van at the scene of the accident.

34 Nearby residents went to the damaged vehicle and removed Cameron from the rear compartment and Luke from the centre compartment. Neither was injured and the inevitable inference is that both had been properly strapped into their car seats. The evidence does not reveal who these people were, or how many looked inside. We must infer that they did not suspect that Jade was under the rear seat and that Shannon did not alert them to her presence. Brown, Mark Constable, and Constables Renwick and Knight, all looked inside. None suspected that Jade was under the rear seat. All these persons as rescuers owed a duty of care to Jade.

35 When at least six people, including four trained rescue workers, looked into the van without suspecting that a seven weeks old baby might be under the rear seat, it should be rather difficult for a court years later to find expressly or by implication that they all failed to take reasonable care.

36 The evidence that Jade was in the vehicle that so impressed the trial Judge made no such impression on any of these people. After the event it is always easy to suggest some further step, which will often be a small one, which could have been taken which would have avoided the accident or injury. However the standard is one of reasonable care, not one of perfection. In cases such as this, where questions of special skill do not arise, the standard is supposed to reflect the views and conduct of ordinary persons. In my judgment the finding of negligence against the police officers cannot be supported and the appeal must therefore be allowed.

37 In these circumstances it is not necessary to express any view on the duty question. However the plaintiff faced great difficulties on this issue. By the date of this accident he had been in the tow truck business for 18 to 19 years (12) and must have attended a great number of distressing accidents without suffering any psychological injury and without feeling the need to withdraw from the business or employ someone else to drive the tow truck. The police officers who asked him to look inside the van for a baby knew he was in this business and they could not reasonably have foreseen that he would suffer a psychological injury on finding Jade.

38 The Judge held that Mrs Bass was not in breach of the duty of care she owed the plaintiff because the negligence of the police officers had broken the chain of causation. With all respect this is a remarkable finding. If someone had discovered Jade at the scene of the accident and suffered psychological damage they may have had a cause of action against Mrs Bass but not against anyone else. If the plaintiff had searched the van at the scene of the accident voluntarily or at the request of a rescue worker and found Jade he may have had a cause of action against Mrs Bass but in my view not against anyone else. However this plaintiff is held to have no cause of action against Mrs Bass but only one against police officers who were not responsible for the accident and were simply trying to do their best in its aftermath.

39 The State also challenged the Judge's assessment of damages and Mr Perry SC, who had not appeared for the respondent below, conceded that there had to be a new trial on damages in any event.

40 In my judgment the following orders should be made:

(1) Appeal allowed with costs;

(2) Judgment for the plaintiff in the District Court set aside and in lieu thereof enter judgment for the defendant with costs;

(3) The respondent to have a certificate under the Suitors Fund Act in respect of the costs of the appeal.

41 GILES JA: I agree with Handley JA.

42 HODGSON JA: I agree with Handley JA.

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LAST UPDATED: 14/02/2003