Swerving to Avoid One Obstacle and Colliding with Another

26 MAY 2020


Swerving to avoid one obstacle and colliding with another; woman successful in police tort claim

A woman who was in a motor vehicle accident when, after swerving to avoid hitting a dog on the road she hit a police officer instead, has successfully sued the State of New South Wales, with the District Court of New South Wales finding the police officer negligent in his actions in stepping on to the roadway.


On the evening of May 8, Kristi Cooper was driving her car south along Gibson Street. She slowed down when she came across a dog in the middle of the road. To avoid hitting the dog, she swerved to the left. The passenger side of her vehicle came into contact with Senior Constable McVey, who was on the eastern side of the roadway, a short distance out from the kerb.

Ms Cooper alleged that she suffered an injury to her back, left shoulder and psychological injuries as a result of the accident.

Senior Constable McVey was knocked over by Ms Cooper’s car. He was in the process of arresting a man, Trevor, who was in a house in Gibson Street. As Ms Cooper’s car was approaching from the north, Senior Constable McVey took a few steps onto the roadway and held up his hands to both southbound and northbound traffic to try to stop the cars. Ms Cooper did not see Senior Constable McVey. Senior Constable McVey was wearing dark blue overalls and a police cap which had a thin reflective band upon it; he was not wearing a Hi-Vis vest or carrying a torch.

Court proceedings

Ms Cooper commenced proceedings in the District Court of New South Wales against the State of New South Wales. She pleaded that her claim for damages was a police tort claim as defined in s 9B of the Law Reform (Vicarious Liability) Act 1983 (NSW) and in accordance with the Act, that the State is vicariously liable for any tort committed by a police officer. She argued that Senior Constable McVey was negligent in stepping out on to the roadway.

The State did not dispute that it was a police tort claim. It did deny any negligence on the part of Senior Constable McVey and also argued that Ms Cooper was contributorily negligent.

His Honour Russell SC DCJ found that the imposition of a common law duty on Senior Constable McVey would not be inconsistent with the exercise of his powers, duties and responsibilities prescribed by legislation. He had to take Trevor across the road to the police vehicle, however, there was a safe way of doing that. The simplest and safest course would have been to remain at the side of the road for a few more seconds before walking Trevor across the road. By taking those precautions, there would have been no danger to other road users, the police, or the prisoner himself. 

His Honour found that Senior Constable McVey was negligent in failing to take the precautions which a reasonable person would have taken against the risk of harm.

As to damages, it was noted that Ms Cooper had a serious and extensive pre-existing medical history, from early childhood and continuing. There was no evidence to link the alleged shoulder and back injury to the accident.

Accordingly, the court found in favour of Ms Cooper and awarded limited damages in the total sum of $316.85: Cooper v State of New South Wales [2019] NSWDC 20

This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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