NSW v Briggs [2016] NSWCA 344
Held (allowing the appeal): (1) Breach of the duty of care owed by the State of
New South Wales to police officers in relation to foreseeable risks of injury
arising from the course of service must be assessed prospectively and not using
hindsight. ([8]; [31]; [64]–[71], [151]–[152])
State of New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20; Kuhl v
Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11;
Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18; Nationwide News Pty
Ltd v Naidu (2007) 71 NSWLR 471; [2007] NSWCA 377; Hoffmann v Boland
[2013] Aust Torts Rep 82-134; [2013] NSWCA 158; Schultz v McCormack
[2015] NSWCA 330; Hegarty v Queensland Ambulance Service [2007] Aust Torts
Rep 81-919; [2007] QCA 366, applied.
(2) To assess breach prospectively, it is necessary to do so by reference to a
clearly postulated alternative general instruction or system of work, having regard
to the numerically large body of police officers, which would probably have
prevented the injury. ([8]; [31]; [64]–[68], [96], [138]–[139], [150]–[153], [223])
State of New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20, applied.
Held further: (Leeming JA, Ward JA agreeing) The scope of the duty of care
owed by the State of New South Wales to police officers must adhere to the
specific legislative obligations imposed upon and regulating the New South Wales
police force. ([31]; [45], [61])
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15; Sullivan
v Moody (2001) 207 CLR 562; [2001] HCA 59; State of New South Wales v Fahy
(2007) 232 CLR 486; [2007] HCA 20; Hunter and New England Local Health
District v McKenna (2014) 253 CLR 270; [2014] HCA 44, applied.