Fuller-Wilson v State of New South Wales

[2018] NSWCA 218

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Fuller-Wilson v State of New South Wales [2018] NSWCA 218

Hearing dates:

20 August 2018

Decision date:

03 October 2018

Before:

Basten JA at [1];
White JA at [90];
Emmett AJA at [96]

Decision:

(1)   Grant the applicants leave to appeal from the judgment of the District Court dismissing their claims.

 

(2)   Allow the appeal and set aside the orders entered on 1 December 2017.

 

(3)   In place thereof, order that –
(a)   the defendant’s motion filed 29 May 2017 be dismissed;
(b)   the defendant pay the plaintiffs’ costs of the motion.

 (4)   Order that the respondent pay the applicants/appellants’ costs in this Court.

Catchwords:

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – primary judge summarily dismissed proceedings on basis that defendant did not owe plaintiffs a duty of care – where weight of current authority against existence of duty of care – where argument available that common law should be extended to recognise duty of care – whether proceedings should have been summarily dismissed

 

NEGLIGENCE – duty of care – police officers – plaintiffs allegedly discovered remnants of deceased family member at scene of fatal motor vehicle accident – plaintiffs alleged negligence of police officers in failing to remove remains from accident scene caused them psychological injury – whether reasonably arguable that officers owed plaintiffs duty of care – whether officers assumed responsibility at accident scene – whether duty would give rise to incoherence or inconsistent obligations –salient features analysis – relevance of principle in Hill v Chief Constable of West Yorkshire [1989] AC 53

NEGLIGENCE – public authorities – duty of care – circumstances in which public authorities will owe duty of care in performance of statutory functions – whether duty of care precluded on basis it gives rise to inconsistent obligations – consideration of Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 30, 42, 43A
Coroners Act 2009 (NSW), ss 6, 21, 25, 27, 35, 38, 40, 43, 100, 101; Ch 9
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 90, 95
Law Reform (Vicarious Liability) Act 1983 (NSW)
Police Act 1990 (NSW), ss 6, 9, 14, 213
State Emergency and Rescue Management Act 1989 (NSW), s 61

  Restatement of Torts (Second), s 868 (1977)
Uniform Civil Procedure Rules 2005 (NSW), r 13.4

Cases Cited:

Ancell v McDermott [1993] 4 All ER 355
Australian Capital Territory v Crowley (2012) 7 ACTLR 142; [2012] ACTCA 52
Board of Fire Commissioners of New South Wales v Ardouin (1961) 109 CLR 105; [1961] HCA 71
Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495; [2005] UKHL 24
Caltex Refineries (Qld) v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258
Caparo Industries Plc v Dickman [1990] 2 AC 605
Clough v Bussan [1990] 1 All ER 431
Cran v State of New South Wales (2004) 62 NSWLR 95; [2004] NSWCA 92
Cumming v New South Wales [2008] NSWSC 690
D v Commissioner of Police of the Metropolis [2018] UKSC 11; [2018] 2 WLR 895
Dorset Yacht Co Ltd v Home Office [1970] AC 1004
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Gesah v Ross [2013] VSC 165
Gibson v Orr; Chief Constable of Strathclyde Police [1999] SC 420
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; [2003] HCA 33
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54
Groom v State of South Australia [2017] SASCFC 35
Halech v State of South Australia (2006) 93 SASR 427; [2006] SASC 29
Hatton v Sutherland [2002] ICR 613
Hill v Chief Constable of West Yorkshire [1989] AC 53
Hunter Area Health Service v Presland (2005) 63 NSWLR 22; [2005] NSWCA 33
In Re Organ Retention Group Litigation [2005] QB 506; [2004] EWHC 644 (QB)
Knightley v Johns [1982] 1 WLR 349
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Mason v Westside Cemeteries Ltd (1996) 135 DLR (4th) 361
Michael v Chief Constable of South Wales Police [2015] AC 1732; [2015] UKSC 2
Quintano v State of New South Wales [2002] NSWSC 766
Rickard v State of New South Wales [2010] NSWSC 151
Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242
Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4; [2018] 2 WLR 595
Rush v Commissioner of Police (2006) 150 FCR 165; [2006] FCA 12
Scarpaci v Milwaukee County 96 Wis 2d 663; 292 NW (2d) 816 (1980)
Sherratt v Chief Constable of Greater Manchester Police [2018] EWHC 1746 (QB)
Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
State of New South Wales v Klein [2006] NSWCA 295; (2006) Aust Torts Rep ¶81-862
State of New South Wales v Spearpoint [2009] NSWCA 233
State of New South Wales v Tyszyk [2008] NSWCA 107
State of Victoria v Richards (2010) 27 VR 343; [2010] VSCA 113
Stuart v Kirkland-Veenstra (2009) 237 CLR 215; [2009] HCA 15
Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59
Sutherland Shire Council v Heyman (1985) 157 CLR 424; [1985] HCA 41
Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35
Thompson v Vincent [2005] NSWCA 219; 153 A Crim R 577
Ticehurst v Skeen (1986) 3 MVR 307
Wickstead v Browne (1992) 30 NSWLR 1
Wilson v State of New South Wales (2001) 53 NSWLR 407; [2001] NSWSC 869
X (Minors) v Bedfordshire County Council [1995] 2 AC 633
Zalewski v Turcarolo [1995] 2 VR 562

Texts Cited:

R Clayton and H Tomlinson, Civil Actions Against the Police (Thomson, 3rd ed, 2003)
Prosser, Law of Torts, (West Pub Co, 4th ed, 1971)

Category:

Principal judgment

Parties:

Elizabeth Ann Fuller-Wilson (Appellant 2017/386624)
Brea Skillen (Appellant 2017/386636)
Nicole Fuller (Appellant 2017/386644)
State of New South Wales (Respondent in all matters)

Representation:

Counsel:
R S Sheldon SC/E E Welsh (Applicants)
M Windsor SC/E Bathurst (Respondent)

  Solicitors:
Brydens Lawyers Pty Ltd (Applicants)
Makinson d’Apice Lawyers (Respondent)

File Number(s):

2017/386624; 2017/386636; 2017/386644

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Citation:

[2017] NSWDC 342

Date of Decision:

28 November 2017

Before:

Hatzistergos DCJ

File Number(s):

2017/45950; 2017/45989; 2017/46009

headnote

[This headnote is not to be read as part of the judgment]

On 18 June 2013, Keith Wilson was killed in a motor vehicle accident. In February 2014 the plaintiffs, who were members of Mr Wilson’s family, visited the accident scene. They claimed to have suffered psychological injury as a consequence of discovering parts of Mr Wilson’s foot and ankle, as well as remnants of clothing containing his remains, at the scene.

The plaintiffs commenced proceedings in the District Court, seeking damages from the State of New South Wales. They alleged that officers of the police were negligent in failing to remove the remains from the accident site, and in failing to warn them that the remains might still be at the scene.

On the State’s motion, the primary judge (Hatzistergos DCJ) summarily dismissed the plaintiffs’ statements of claim under Uniform Civil Procedure Rules, r 13.4(1)(b), being satisfied that the officers owed no duty of care of the kind pleaded.

The key issue on appeal was whether the statements of claim failed to disclose a reasonable cause of action, such that their summary dismissal was warranted.

The Court (Basten JA, White JA and Emmett AJA) allowed the appeal and held:

1. On the present state of the law, there is a degree of uncertainty regarding the circumstances in which the existence of a duty of care will be rejected on the basis that it imposes obligations on a public authority, inconsistent with its statutory obligations: [80]-[82]. Though the weight of authority supports the view that no duty of care was owed by the police officers to the plaintiffs, there is a reasonable argument that the common law in Australia should recognise a wider scope of liability: [12]; [80]. In those circumstances, the proceedings should not have been summarily dismissed: [12]; [87]; [90].

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69, applied; Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59, discussed; Caltex Refineries (Qld) v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258; Cran v State of New South Wales (2004) 62 NSWLR 95; [2004] NSWCA 92; Hill v Chief Constable of West Yorkshire [1989] AC 53; State of New South Wales v Spearpoint [2009] NSWCA 233, considered.

2.   Whether a statutory authority owes a duty of care in the performance of its functions turns upon a close examination of the terms, scope and purpose of the relevant statutory regime. A claim should not be summarily dismissed on the basis that the purported duty of care gives rise to conflicting obligations unless it can be said that (a) the particular statutory regime has been properly identified and (b) an affirmative finding of conflicting claims or obligations has been made on the facts as pleaded. That did not occur in the present case; accordingly, the matter should not have been summarily dismissed: [83]; [90]; [93]; [101]-[102].

Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54, applied.

Judgment

1. BASTEN JA: On the afternoon of 18 June 2013, a rigid-bodied truck driven by the late Keith Arthur Wilson collided with the rear of a B-double articulated vehicle, heading north on the Pacific Highway at Nabiac. The truck was thrown on its side and caught fire, resulting in Mr Wilson’s death in the cabin.

2. Eight months after the accident, in February 2014, three members of Mr Wilson’s family visited the accident site. In separate statements of claim filed in the District Court in February 2017 each alleged finding “part of a foot and ankle and clothing containing the deceased’s melted remains … at the scene.” The plaintiffs further alleged that they “discovered the said remains and clothing and recognised them as belonging to the deceased”. Each claimed to have suffered psychological harm as a result of the discovery. [1]

   1.    As identical steps were taken in each proceeding, further references will treat them as a single matter.

3. The plaintiffs sought damages from the State of New South Wales. The State was said to be liable, presumably for “a tort … committed … by a police officer” pursuant to s 9 of the Law Reform (Vicarious Liability) Act 1983 (NSW). The statement of claim alleged negligence of police officers in “failing to remove all parts of the deceased’s body and personal effects from the scene of the accident” and “failing to warn the [family members] of the possibility that some body parts had been left at the scene of the accident.”

4. The State applied to have the proceedings dismissed as not disclosing an arguable cause of action. By orders entered on 1 December 2017 the primary judge, Hatzistergos DCJ, dismissed the proceedings, being satisfied that the officers owed no duty of care to the members of the deceased’s family of the kind pleaded. [2]

   2. Skillen v State of New South Wales; Fuller v State of New South Wales; Fuller-Wilson v State of New South Wales [2017] NSWDC 342 (“Skillen”).

5. On 4 January 2018 the plaintiffs gave notice of intention to appeal. Some six weeks out of time, an amended summons seeking leave to appeal was filed in this Court. Leave to proceed is required because the judgment dismissing the proceedings was interlocutory, and because the summons seeking leave to appeal was out of time. The State did not oppose an extension of time, but opposed a grant of leave to appeal on the basis that the proposed appeal lacked merit. The parties accepted that the application for leave and the proposed appeal should be heard concurrently, as occurred.

6. The question whether police owed a duty of care to members of the deceased’s family with respect to the removal of his body and effects from the scene of the accident is one of sufficient importance to warrant a grant of leave to appeal.

Application for summary dismissal – general principles

7. The thrust of the appellants’ argument was that the case did not warrant summary dismissal, as their claims were at least arguable. That was because (a) police in the exercise of their functions enjoyed no immunity from liability in negligence; (b) the imposition of a duty in this case would not be inconsistent or incompatible with the statutory or common law functions of the police; (c) such a duty would not give rise to incoherence in legal principles, and (d) the precise nature of the relationship between the relatives and the police would only be fully exposed in the course of a trial.

8. The primary judge accepted the State’s argument that the statement of claim failed to disclose a “reasonable cause of action”, thus engaging the power of summary dismissal under Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1)(b). It is not in dispute that the trial court was required to approach the State’s application in accordance with the principles stated in General Steel Industries Inc v Commissioner for Railways (NSW),[3] where Barwick CJ explained that “great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal.” [4] The Chief Justice continued:

“On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”

3. (1964) 112 CLR 125; [1964] HCA 69.

4.    General Steel at 130.

9. The appellants placed reliance on the approach adopted by this Court in similar circumstances in State of New South Wales v Spearpoint. [5] In that case a trial judge’s refusal of the State’s application for summary dismissal was upheld. Allsop ACJ stated:

“[23]   Whilst the ultimate question as to the existence of a duty of care is one of law[6] the task is one which is fact rich and fact intensive. To put it as Windeyer J did in Mount Isa Mines v Pusey [7] it is ‘a value judgment upon ascertained facts’.

[24]   Here the testing and possible vindication of the plaintiffs’ assertions through the legal process will depend significantly upon the relationship proven on the particular facts between the plaintiffs and the defendant. One aspect of this, on the material in the papers could be circumstances of communication of the fact that a warrant had issued. This may conceivably give rise to questions of assumption of responsibility whether to an individual or generally which might assist in the imputation of a legal obligation to act and to exercise care. I do not draw this conclusion, I only state it to illuminate the potential for the fact based legal imputation.

[25]   Whilst of course we must assess the present procedural rights by reference to the presently pleaded case, it is appropriate to judge the exercise of the power to dismiss the claim with an eye to the possible development of the case through the pleadings and the evidence.

[26]   It is often, though not always, inappropriate to dismiss summarily a claim such as this on the pleadings, at least as they stand at an early stage in litigation. Whilst the applicant has put forward arguments that have some force, those arguments assume an inability of the respondents’ case at trial to elicit facts reasonably connected with the current pleadings that could substantiate the claim as a matter of law. I cannot see that with the clarity required in a summary application.” [8]

5. [2009] NSWCA 233 (Ipp JA; Allsop ACJ and Beazley JA agreeing).

6. Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 at [62].

7. (1970) 125 CLR 383 at 398, 399; [1970] HCA 60.

8.    Emphasis added.

10. The need for caution in dismissing proceedings summarily is not to be doubted. Further, although the existence of a duty of care involves a question of law, it is axiomatic that the legal question must be answered by reference to specific facts. Nonetheless, there are circumstances where summary dismissal is appropriate on the basis of the assumed truth of the pleaded facts; particularly is that so where part of the reason for not imposing a duty of care is to avoid the close factual inquiry which would take place in the course of a trial. Summary dismissal applications have been upheld in a number of cases involving claims for negligent conduct by police officers discussed further below: see, eg, State of New South Wales v Klein [9] and Rickard vState of New South Wales. [10]

    9. [2006] NSWCA 295; (2006) Aust Torts Rep ¶81-862

    10. [2010] NSWSC 151 (R A Hulme J).

11. While it may be accepted that a case should not be summarily dismissed in circumstances where it is arguable that a duty of care might turn upon factual issues not revealed by the pleadings, the appellants did not demonstrate how further factual issues might arise; nor did they seek to amend the statement of claim, which was undoubtedly deficient in a number of respects, not the least being a failure to identify any act of negligence on the part of an officer or officers. (The proceedings were not struck out on that basis, it being possible to imply the nature of the case from the pleadings and a statement prepared by a police officer which was tendered without objection.)

12. As a matter of principle, the approach, accepted both in this country and in the UK, is “that the law should develop novel categories of negligence incrementally and by analogy with established categories”. [11] As recently explained by Lord Reed in Robinson v Chief Constable of West Yorkshire Police,[12] “[t]he drawing of an analogy depends on identifying the legally significant features of the situations with which the earlier authorities were concerned.” For the reasons explained below, the primary judge was correct to conclude that the pleaded case would be dismissed in accordance with current authority. However, it is open to the appellants to argue, on reasonable grounds, that the common law in Australia should recognise a wider scope of liability. In that circumstance the better view is that the proceedings should not have been summarily dismissed.

    11. Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 481; [1985] HCA 41; Robinson at [25].

    12. [2018] UKSC 4; [2018] 2 WLR 595 at [27].

Appellants’ grounds of appeal

13. The grounds set out in the draft notice of appeal were somewhat vague. The appellants’ submissions, however, challenged three bases relied on by the primary judge for dismissing the proceedings. These were the application of (a) the salient features test, (b) the Hill principle and (c) the principles in s 42 of the Civil Liability Act 2002 (NSW). [13] In each respect the primary judge was said to have erred. The matters require some further explication.

    13. Skillen at [68].

(i)   salient features test

14. The first matter relied on by the appellants was the “salient features test” as expressed by Allsop P in Caltex Refineries (Qld) v Stavar. [14] Reliance on “salient features” in determining the existence of a duty of care is unexceptionable; it was adopted by the High Court in Sullivan v Moody [15] in rejecting the three-stage approach of Lord Bridge of Harwich in Caparo Industries Plc v Dickman. [16] Four years later, in Hunter Area Health Service v Presland,[17] Spigelman CJ identified the approach to determining whether a duty of care arises with respect to the exercise of a statutory power by reference to the joint reasons of Gummow and Hayne JJ in Graham Barclay Oysters Pty Ltd v Ryan:[18]

“[146]   The existence or otherwise of a common law duty of care allegedly owed by a statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime. The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence.

[147]   Where the question posed above is answered in the affirmative, the common law imposes a duty in tort which operates alongside the rights, duties and liabilities created by statute. In some instances, a statutory regime may itself, in express terms or by necessary implication, exclude the concurrent operation of a duty at common law. …

…

[149]   An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial[19] . It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated[20] ; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers[21] ; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute [22] .”

14. (2009) 75 NSWLR 649; [2009] NSWCA 258 at [102]-[103].

15. (2001) 207 CLR 562; [2001] HCA 59 at [50].

16. [1990] 2 AC 605 at 617-618; Sullivan at [49].

17. (2005) 63 NSWLR 22; [2005] NSWCA 33 at [9].

18. Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54; Presland at [10]; see also Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [20]-[21] (French CJ and Gummow J).

19. Pyrenees Shire Council v Day (1998) 192 CLR 330 at 377 [126].

20. Howard v Jarvis (1958) 98 CLR 177 at 183; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550‑552, 556-557.

21. Burnie Port Authority at 551; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 24-25 [44]-[46], 38-39 [91]-[93], 40-41 [100].

22.    Sullivan v Moody at [55]-[62].

15. The further step taken by Allsop P in Stavar was to identify a non-exhaustive list of 17 factors which were to be considered in appropriate circumstances; some were identified in extremely broad language. They were expressed in terms equally applicable to private parties and to public authorities. Stavar itself involved an allegation of negligence with respect to injuries suffered by the wife of a worker who had been exposed to asbestos in his workplace. For reasons noted below, a different focus is required with respect to public authorities.

16. Both parties treated the claim as “novel” and as requiring consideration in accordance with general principles. Accordingly, the primary judge addressed the claim on the basis of particular factors identified as (a) control of the scene; (b) assumption of responsibility; (c) vulnerability; (d) nature and activity of NSW Police and (e) conflict/coherence. These factors may be treated as “salient features” to be addressed in considering whether a duty of care arose. Each, in the particular circumstances, depended upon the functions and activities of the police officers.

17. However, as the primary judge correctly understood, the focus in the present case was on the potential liability of police to individual members of the public and not, as in Stavar, as between workers and employers or others in charge of a work environment. There was no error of principle in that approach.

(ii)    the Hill principle

18. The second matter with which the appellants took issue was the purported application of the principle espoused by the House of Lords in Hill v Chief Constable of West Yorkshire. [23] Hill concerned a claim by the mother of a young woman murdered by a man (known as the “Yorkshire ripper”) who had committed a number of murders of young women in a reasonably circumscribed area over a period of years. The claim in negligence alleged that the police owed a general duty of care to identify and apprehend the criminal which, had they exercised reasonable care, would have occurred before the death of the plaintiff’s daughter. The House of Lords denied the existence of a duty of care owed to the mother of a young woman (and presumably the relatives of all “young women” in a particular geographic area) in relation to the conduct of the criminal investigation.

    23. [1989] AC 53.

19. The facts underlying the appellants’ claims were clearly distinguishable from those in Hill. The appellants contended that the primary judge had treated Hill as involving a wider principle than it in fact stated. As Campbell JA explained in State of New South Wales v Tyszyk:[24]

“[123]   It seems to me that the principle that Hill stands for is that, when there is a criminal at large who has demonstrated a propensity to commit crimes against a particular group of people, and that group of people is a large one, police owe no duty of care to persons who might become a victim of that criminal, concerning the strategies adopted and resources to be employed in seeking to identify and arrest that criminal.”

24. [2008] NSWCA 107.

20. However, it should be noted that Campbell JA continued:

“[125]   Partly on the basis of Hill, a wider principle than Hill itself articulated has been accepted both in the House of Lords and in the High Court of Australia. It is that a ‘common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties’.[25] The High Court also said, in Sullivan v Moody at [60]:

‘… when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of the specified class of persons, the law would not ordinarily subject them to a duty to have regards to the interests of another class of persons where that would impose upon them conflicting claims or obligations.’

[126]   The approval given to Hill … in Sullivan v Moody at [57] was in a context where their Honours were considering the way in which the need for coherence in the law affected whether a duty of care would be held to be owed by a particular defendant to a particular plaintiff. They said, at [55]:

‘A duty of the kind alleged should not be found if that duty would not be compatible with other duties which the respondents owed.’”

25. X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 739; Sullivan v Moody at [30] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ.

21. Even if Hill is not directly applicable, there is thus a question as to whether the duty proposed by the appellants is inconsistent, incompatible or incoherent with the public functions and obligations of the police. The State emphasised that the critical consideration was not actual inconsistency, but the tendency to place an officer in a position of conflicting obligations. It will be necessary to consider the proper application of this approach to the pleaded duty.

(iii) s 42 of the Civil Liability Act

22. The third matter identified as erroneously addressed by the primary judge was s 42 of the Civil Liability Act, which provides:

42   Principles concerning resources, responsibilities etc of public or other authorities

The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies:

(a)   the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions,

(b)   the general allocation of those resources by the authority is not open to challenge,

(c)   the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate),

(d)   the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate.

23. Having noted the State’s reliance upon s 42, the primary judge referred, under the heading “Nature and Activity of NSW Police”, to the activities of the police being limited by the financial and other resources reasonably available to them. As the appellants correctly noted, there was no evidence before the judge as to any particular limitations on resources. More importantly, it was unclear in what way the pleaded case gave rise to any issue of resource allocation. Although the judge stated in his final conclusion that he relied upon s 42, it is by no means clear that it played a significant role in his reasoning. There was no suggestion that it involved more than a generic consideration, namely that the court in negligence proceedings should avoid a review of resource allocation decisions within the Police Force and, perhaps, avoid imposing a duty of care where to do so would invite such a review.

Nature of duty of care

24. Accepting that there were elements of uncertainty as to the basis of the primary judge’s decision, it is convenient to consider as a matter of principle the critical factors underlying the conclusion that no duty of care was owed by police officers at the scene of the accident to the relatives of the deceased in the present case. To the extent that the judge had regard to the relevant principles and the way in which the case was presented to him, it will also be necessary to consider whether those principles were correctly applied. Further, because it is important that claims requiring an incremental development of the common law not be disposed of summarily unless they can be shown to be hopeless, it is necessary to have regard to the range of the case law, which was not fully addressed before the primary judge or, indeed, in this Court.

(i)   police functions

25. The first question raised by the passage from Graham Barclay Oysters extracted above is whether the police responsible for extracting the body of the deceased from the cabin of the truck and arranging for its transport to Manning Base Hospital were in fact exercising a statutory power.

26. The primary judge focused, correctly, on the statutory conferral of functions and powers on the New South Wales Police Force. The key function of providing “police services” included the provision of “essential services in emergencies”. [26] The provision of such services was said to be “subject to” the State Emergency and Rescue Management Act 1989 (NSW) (“the State Emergency Act”) and the Essential Services Act 1988 (NSW). [27] Before the primary judge, the State argued that the accident constituted an “emergency” within the terms of s 4(1) of the State Emergency Act and, accordingly, senior police officers had further powers conferred on them pursuant to s 61(1) of that Act:

    26. Police Act 1990 (NSW), s 6(2)(a) and (3), “police services”, (c).

    27. Police Act, s 6(5).

61   Power of police to take other safety measures

(1)    A senior police officer may, if satisfied that there are reasonable grounds for doing so for the purpose of protecting persons or animals from injury or death or protecting property threatened by an actual or imminent emergency, direct, or authorise another police officer to direct, the doing of any one or more of the following:

(a)   the closure to traffic of any street, road, lane, thoroughfare or footpath or place open to or used by the public, in the danger area or any part of the danger area,

(a1)   the removal of vehicles in the danger area or any part of the danger area,

(b)   the closure of any other public or private place in the danger area or any part of the danger area,

…

(f)   the taking possession of, and removal or destruction of any material or thing in the danger area or any part of the danger area that may be dangerous to life or property or that may interfere with the response of emergency services to the emergency,

(g)   the protection or isolation of any material or thing in the danger area by preventing a person from removing or otherwise interfering with the material or thing.

27. The State also contended that the function of the police in removing the body of the deceased was an exercise of powers in aid of the coronial functions under the Coroners Act 2009 (NSW), in circumstances where an inquest was likely to follow. In particular, the State relied upon s 43 of the Coroners Act which, so far as relevant, provides:

43   Coronial investigation scene powers (cf Coroners Act 1980, s 23G)

(1)   A police officer or other person may, in accordance with this Chapter and a coronial investigation scene order, exercise the following functions at, or in relation to, a coronial investigation scene:

…

(g)   perform any necessary investigation, including, for example, search the coronial investigation scene and inspect anything in it to obtain evidence in relation to the inquest or inquiry,

…

(m)   seize and detain all or part of a thing that might provide evidence in relation to the inquest or inquiry or provide evidence of the commission of an offence,

…

(p)   take possession of the remains of a deceased person on behalf of the coroner, including body tissue, clothing and items apparently in the possession of the deceased person,

(q)   remove or cause the removal of the remains of a deceased person to any location nominated by the coroner,

(r)   any other function reasonably necessary or incidental to a function conferred by this section.

28. The primary judge noted that the exercise of those powers assumed that a “coronial investigation scene order” had been made; there was no factual allegation one way or the other with respect to that matter. There is no doubt that the deceased’s death was a “reportable death” within the definition in s 6(1)(a) of the Coroners Act, being “a violent or unnatural death”. A report of such a death must be made “as soon as possible” to a coroner or an assistant coroner. [28] As the accident took place at 2pm on a weekday, it is quite possible that a coroner made a coronial investigation scene order, probably by telephone to a police officer, prior to the removal of the body that evening. [29] However, the pleadings have not yet addressed that issue.

    28. Coroners Act, s 35.

    29. Coroners Act, s 40(1).

29. Even if that were not so, it might be inferred that the police, in removing or causing the body to be removed to Manning Base Hospital, were exercising either common law powers or powers impliedly conferred by other provisions in the Coroners Act. Thus, an officer would be aware of the jurisdiction conferred on the coroner to hold an inquest into a reportable death,[30] and the need for relevant evidence to be protected and retained under police control until the coroner decided whether an inquest would be held or would be dispensed with. [31]

    30. Coroners Act, s 21(1).

    31. Coroners Act, ss 25 and 27.

30. A similar power of retention may be seen as incidental to Ch 9 of the Coroners Act, which prohibits unauthorised disposal of human remains. [32] Broadly speaking, authorised disposal of human remains requires a certificate prepared by a medical practitioner, or an order made by the coroner under s 101 of the Coroners Act. [33] However, as a medical practitioner generally may not give a certificate as to the cause of death in the case of a reportable death, the disposal of the body remains under the control of the coroner. [34]

    32. Coroners Act, s 100.

    33. Coroners Act, s 100(3).

    34. Coroners Act, s 38(1).

31. For completeness it may be noted that s 14 of the Police Act 1990 (NSW) provides that “[i]n addition to any other functions, a police officer has the functions conferred or imposed on a constable by or under any law (including the common law) of the State.” This may provide a reasonable argument that all police functions have a statutory basis.

32. It may also be relevant that various agencies involved in providing essential services at a motor vehicle accident have different roles. The brief facts relied upon in relation to the present circumstances were set out in the statement of Senior Constable Murray, prepared in January 2014. The statement included two relevant passages: the first was as follows:

“15   Around dusk Sergeant GUYMER from the Taree Crime Scene unit attended the scene and began taking photographs of the scene and vehicle. I spoke to him in relation to the collision and due to that conversation Sergeant GUYMER contacted forensic imaging section in Sydney to attend the scene.”

33. An inference may be drawn from that statement that, prior to the removal of the body from the wrecked vehicle, a “crime scene” had been established. Section 90 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) provides that a crime scene may be established by a police officer if the officer suspects on reasonable grounds that “an offence committed in connection with a traffic accident that has resulted in the death of or serious injury to a person … was … committed on the premises and that it is reasonably necessary to establish a crime scene in or on the premises to preserve, or search for and gather, evidence of the commission of that offence”. (The reference to “premises” may have a wide scope.) The powers conferred on police in relation to a crime scene are set out in s 95 and mirror those contained in s 43(1) of the Coroners Act, omitting the power to take possession of remains of a deceased person and cause the removal of the remains. [35] The omission of those powers may be explained by the fact that they are undertaken on behalf of and at the direction of the coroner.

    35. Coroners Act, s 43(1)(p) and (q).

34. The second relevant passage in Senior Constable Murray’s statement read as follows:

“16   Police Rescue from Newcastle attended the scene to assist with lighting and removal of the body of WILSON. The body was removed by Police Rescue [personnel] and I assisted in carrying the body up to the side of the road. Body tag number 93159 was attached to the body by the government contractor in my presence. The body was transported by the contractor to Manning Base Hospital … where life was pronounced extinct.

…

17   A short time later I left the scene and returned to Taree Police Station ….”

35. This description is consistent with the exercise of powers under s 43(1)(p) and (q) of the Coroners Act; [36] on the other hand, if no coronial investigation scene order had then been made the action in removing the body from the vehicle and taking it to the hospital was arguably carried out for the purpose of enabling future compliance with the Coroners Act.

    36. Set out at [27] above.

36. It should also be inferred that part of the purpose of the police activity was the investigation of the cause of the accident and the possibility of offences having been committed. Senior Constable Murray made observations of the scene of the accident, noting that there was clear visibility for some 400 metres along the northbound lanes prior to the point of collision. He concluded that something may have occurred “in the cabin of the deceased person’s vehicle which has rendered him unable to avoid a collision.” He continued:

“Due to the damage to the cabin and the deceased[’s] body due to incineration any evidence of what happened in the cabin has been destroyed.”

37. Whether or not the police were performing obligations under the Coroners Act, or carrying out their own investigation of the accident, or simply removing the body of the deceased to an appropriate location, it appears that such activity was carried out in the performance of public duties and not for the protection of any individual or class of individuals. The appellants must seek to infer an implied statutory purpose of protecting individuals, including a class involving relatives of the deceased.

37. There is no clear legal basis for inferring such a purpose in the case of powers derived from the common law functions of a constable. It is not possible to identify with precision the scope of the duties of a constable under the general law, as adopted by s 14 of the Police Act. The conduct of police is now dealt with in extensive directions and guidelines, including those contained in the New South Wales Police Handbook. The attention of the law is generally engaged where an officer seeks to exercise a power which interferes with the rights and freedoms of individual members of the public. As in other areas of activity, statutory immunities from suit are generally construed as limited to activities which require special legal authority. [37] Relevantly for the present case, the New South Wales Police Handbook contains a section dealing with deceased persons, which includes instructions as to notification of the next of kin. [38] No reliance was placed on such material by the parties; it plays no part in the current proceeding. It does, however, indicate the potential scope of the functions of police officers under s 6 of the Police Act.

    37. See, eg, Board of Fire Commissioners of New South Wales v Ardouin (1961) 109 CLR 105 at 110 (Dixon CJ); [1961] HCA 71.

    38.    NSW Police Handbook (2017) p 126.

(ii)   assumption of responsibility

39. Some cases speak of “assumption of responsibility” as a basis for imposing a duty of care. Thus Lord Reed stated recently in Robinson v Chief Constable of West Yorkshire Police:

“[69]   The absence of a duty towards victims of crime, for example, does not depend merely on a policy devised by a recent generation of judges in relation to policing; it is based on the application of a general and long-established principle that the common law imposes no liability to protect persons against harm caused by third parties, in the absence of a recognised exception such as a voluntary assumption of responsibility.”

40. Broadly speaking, the “recognised exception” means that a duty of care may arise where an officer has made a representation to an individual, who has placed reliance on the representation. [39] The suggestion that police may create a duty of care by engaging with individual members of the public is fraught with difficulty. In Michael v Chief Constable of South Wales Police [40] Lord Toulson noted that “[t]here has sometimes been a tendency for courts to use the expression ‘assumption of responsibility’ when in truth the responsibility has been imposed by the court rather than assumed by [the defendant].”[41] Such cases may better be understood by an analysis of the purpose for which particular conduct has been undertaken.

    39. For a recent example in the UK, see Sherratt v Chief Constable of Greater Manchester Police [2018] EWHC 1746 (QB) (King J).

    40. [2015] AC 1732; [2015] UKSC 2 (Lord Toulson, Lords Neuberger, Mance, Reed and Hodge agreeing).

    41. Michael at [100].

41. It was that potential exception to the general principle that no duty is owed which was in issue in Spearpoint. [42] The plaintiff had obtained an apprehended violence order against a man who had threatened her and her family, and whose actions in disregard of the order had been reported to police on more than one occasion. She had been told by police that a warrant had been issued for the man’s arrest. The warrant was not executed and the man came to the Spearpoint home and caused injury and damage. As explained in the first highlighted passage in the extract set out at [9] above, the claim in negligence depended upon the “relationship” and specific communications between the Spearpoints and individual police officers. [43] The possibility that a duty of care could arise in such circumstances was found to be arguable, potentially turning upon the precise nature of the communications. In this case, the primary judge specifically addressed both the statements of principle and the basis of the claim in Spearpoint, but there was no suggestion of representation or reliance. Accordingly, there was no basis to impute a duty of care owed to specific individuals based on an assumption of responsibility.

    42. Spearpoint at [24].

    43.    The reference to “the defendant” in the first highlighted passage was to the State, but the pleaded basis of its liability appears to have been purely vicarious.

(iii)   liability for conduct of third parties

42. Generally speaking, the law does not impose tortious liability on one person, for damage caused by a third party. Hill exemplified that principle, as explained by Lord Toulson in Michael, [44] and by Lord Reed in Robinson in the passage set out at [39] above.

    44.    Michael at [97]-[99].

43. The general principle is subject to other exceptions; for example, a duty of care may arise where a person with dangerous tendencies is supposedly under the control of the authorities, but is allowed to escape and causes damage to property. In Dorset Yacht Co Ltd v Home Office,[45] officers in control of a detention centre were held to owe a duty to nearby property owners with respect to the misconduct of young offenders who escaped, stealing the plaintiff’s yacht, which was damaged.

    45. [1970] AC 1004.

44. In the present case, the police were not responsible for the accident, nor for any suffering which may have occurred to the family of the driver who was incinerated in his cabin as a result of the collision. On the other hand, the appellants pleaded that the police had taken control of the situation after the accident and it was their allegedly careless handling of the body which caused the plaintiffs to suffer mental harm.

45. This point is reasonably arguable, but again is not decisive. The existence or otherwise of a duty of care depends on broader considerations. The language used in cases where police have failed to prevent a criminal injuring the plaintiff clearly does not govern the present circumstances. (Any consideration of the UK authorities must recognise that government immunity from liability in this respect has now been by-passed by successful invocation of the Human Rights Act 1998 (UK). [46] )

    46. See D v Commissioner of Police of the Metropolis [2018] UKSC 11; [2018] 2 WLR 895 at [68]-[70] (Lord Kerr), [97] (Lord Neuberger) and [142] (Lord Mance); cf [130]-[136] (Lord Hughes).

(iv)   the state of the Australian authorities

46. A number of recent cases have dealt with claims against the police in negligence. In a judgment of the Appeal Division of the Supreme Court of Victoria, Zalewski v Turcarolo,[47] Brooking J noted examples of police being found liable in negligence in three categories of case, namely (i) to other road users when driving in performance of police duties; (ii) to suspects, who have been shot in the course of pursuit or arrest and (iii) with respect to persons in detention. [48] In 2010, Redlich JA in State of Victoria v Richards [49] identified four categories where no duty had been found, namely:

“(1)   Where police are investigating a crime and the offender, then known or unknown harms the plaintiff ….

(2)   Where police in the course of investigation injure the person under investigation ….

(3)   Where police in the course of investigation injure the person under investigation and a family member of the person under investigation suffers indirect injury ….

(4)   Where no police power has been exercised ….”

47. [1995] 2 VR 562.

48.    Zalewski at 563-565.

49. (2010) 27 VR 343; [2010] VSCA 113 at [14].

47. In Rush v Commissioner of Police,[50] in addition to the categories identified in Zalewski, Finn J referred to cases establishing (or assuming) a duty of care where an officer:

    50. (2006) 150 FCR 165; [2006] FCA 12.

1. failed to go to the assistance of another officer for whom he had a responsibility;

2. provoked or acted in disregard of a real and substantial risk of harm to a person or property;

3. failed to preserve the confidentiality of information provided by an informant;

4. failed to protect a woman who was unaware she was being used by police as “bait” to catch a serial rapist (a Canadian case), and

5. delayed in responding to calls for assistance while assuring the victim that help was on its way (a US case). [51]

   51.    Rush at [97]; and see now Sherratt at fn 39 above.

48. Finn J included both Zalewski and Rigby v Chief Constable of Northamptonshire [52] within the category of cases where the police had taken positive steps to create, or had disregarded, a real and substantial risk of harm.

    52. [1985] 1 WLR 1242.

49. There are numerous cases in different jurisdictions where claims based on the failure of police to respond effectively to calls for help, or based on allegedly negligent investigations, have been dismissed because there was no duty of care. [53] Of these, two are worthy of further consideration. The first, Cran v State of New South Wales (2004), [54] involved a person charged with supply of a drug, who was remanded in prison where he remained for a period of nine weeks during which time he said he was repeatedly bashed and witnessed a rape and murder. The plaintiff was known to be vulnerable and had been identified by police as a suicide risk. Police failed to inform the laboratory which was testing the substance, thought by police to be a prohibited drug (LSD), that the plaintiff was in custody. The tests proved negative and the plaintiff was released.

    53. These include Hill (supra); Wilson v State of New South Wales (2001) 53 NSWLR 407; [2001] NSWSC 869; Quintano v State of New South Wales [2002] NSWSC 766; Cran v State of New South Wales (2004) 62 NSWLR 95; [2004] NSWCA 92; State of New South Wales v Klein (supra); Halech v State of South Australia (2006) 93 SASR 427; [2006] SASC 29; Rush v Commissioner of Police (supra); Cumming v New South Wales [2008] NSWSC 690; Rickard (supra); Australian Capital Territory v Crowley (2012) 7 ACTLR 142; [2012] ACTCA 52; Gesah v Ross [2013] VSC 165; Groom v State of South Australia [2017] SASCFC 35.

    54.    See fn 53.

50. The Court held no duty of care was owed because (a) the plaintiff was not in their custody at the time the injury was suffered and (b) relying on the principle stated by the High Court in Tame v New South Wales,[55] no duty was owed with respect to “any aspect of police investigation and in particular what might be described as purely ministerial tasks”. [56]

    55. (2002) 211 CLR 317; [2002] HCA 35.

    56.    Cran at [50] (Santow JA); see also [74] (Ipp JA).

51. While the facts of Cran are distinguishable from the present case, there are two other aspects which render it of limited assistance. The first is procedural; it involved an appeal from a trial, rather than a summary dismissal. Secondly, although the reasoning underlying the rejection of a duty of care relied on binding authority at common law that a duty “would tend to have an inhibiting [e]ffect upon the discharge of police investigative functions,”[57] there was no reference to relevant aspects of the statutory framework. With respect to the statutory framework, three matters are relevant. First, there is the immunity of the individual officer from liability in negligence conferred by the Police Act, s 213. Secondly, there is the liability accepted by the State regardless of the immunity conferred on the officer, pursuant to the Law Reform (Vicarious Liability) Act. Thirdly, there are the provisions of the Civil Liability Act, including ss 30 and 43A, to which further reference will be made below.

    57. Cran at [50].

52. The second case is Halech v State of South Australia (2006), [58] which involved a claim by a son whose mother was one of four occupants of a vehicle at the time of a fatal accident, all of whom died. The police officers investigating the accident were found at trial to have been negligent in misidentifying two occupants of the vehicle. Duggan J concluded that the function of police at the scene of the accident involved the “tentative identification [of the victims] in circumstances in which it [was] expected that a more formal identification [would] take place subsequently.”[59] The reasoning continued:

“[42]   In these circumstances the police officers are entitled to expect, as they did in the present case, that reliable identification by relatives or friends would take place in due course. They could not reasonably have been expected to foresee that the recording of this information, if incorrect, would have misled all those subsequently involved in the identification, resulting ultimately in psychiatric injury to one of the relatives.”

58.    Fn 53 above.

59. Halech at [41].

53. Debelle J agreed, although he was content to rely on the proposition that, assuming the police owed a duty of care to the appellant, the duty was discharged. [60] Besanko J concluded that, given the functions of police officers at the scene of a serious traffic accident, “it would constrain the proper performance of those duties to impose a duty of care on a police officer in relation to the identification of a victim to the relatives of that victim.”[61] Besanko J, applying the common law to a case which pre-dated the modern statutory amendments to the Civil Liability Act 1936 (SA), [62] concluded that it was not reasonably foreseeable that the misidentification at the scene might result in a recognisable psychiatric illness. [63]

    60. Halech at [75].

    61. Halech at [110].

    62. Halech at [113].

    63. Halech at [123].

54. Like Cran, Halech provides no support for a finding of a duty of care in the present circumstances. The facts are closer to those in the present case, but the reasoning involved no consideration of equivalent statutory provisions to those applicable in New South Wales.

55. Although there appears to be no Australian case in which a duty of care has been upheld with respect to persons dealing with the body of a deceased, the duty being owed to close family members of the deceased, similar cases have arisen in other jurisdictions. It is sufficient to deal with three cases, involving courts in Wisconsin, Ontario and the UK. The first chronologically is Scarpaci v Milwaukee County. [64] The plaintiffs were the parents of a child who had died and who alleged mental harm as a result of the unauthorised performance of an autopsy on the child’s body. The trial judge dismissed a motion for summary judgment, a decision upheld by the Supreme Court of Wisconsin.

    64.    96 Wis 2d 663; 292 NW (2d) 816 (1980).

56. The Restatement of Torts (Second) upheld a right to sue in damages on the basis that the member of the family was entitled to the disposition of the body. [65] Prosser also supported a cause of action for negligent mishandling of corpses. [66] Abrahamson J stated:[67]

“The law is clear in this State that the family of the deceased has a legally recognised right to entomb the remains of the deceased family member in their integrity and without mutilation. Thus the next of kin have a claim against one who wrongfully mutilates or otherwise disturbs the corpse.

…

The basis for recovery of damages is found not in a property right in a dead body but in the personal right of the family of the deceased to bury the body. …

The law is not primarily concerned with the extent of physical injury to the bodily remains but with whether there were any improper actions and whether such actions caused emotional or physical suffering to the living kin. The tort rarely involves pecuniary injury; the generally recognised basis of damages is mental suffering.”

65.    Restatement, s 868 (1977); Scarpaci at fn 7.

66.    Prosser, Law of Torts, s 54, pp 328-330 (West Pub Co, 4th ed, 1971); Scarpaci at fn 8.

67. Scarpaci at 820, ii [2].

57. Mason v Westside Cemeteries Ltd [68] involved a claim by a son that a cemetery had mislaid his parents’ ashes. The cemetery was found to have received the urns containing the ashes in 1979; some 14 years later, in 1993, the plaintiff sought to retrieve the urns and transfer them to a family burial site. The urns could not be found. The Ontario court found that the cemetery owed a duty of care with respect to the remains entrusted to it. [69] Damages for emotional harm described by the trial judge as “minor” were assessed in an amount of $1,000. [70]

    68. (1996) 135 DLR (4th) 361.

    69.    Mason at 369(g).

    70.    Mason at 382(b).

58. Although the duty of care was one relevant to a claim in negligence, the relationship between the parties was also contractual. Further, a claim in damages in tort for mental harm not constituting a cognizable psychiatric injury would not arise in this jurisdiction.

59. The UK case is a decision of Gage J in the Queen’s Bench Division known as In Re Organ Retention Group Litigation. [71] The case involved claims for psychiatric injury caused by the removal, in the course of post-mortems, of organs, together with their subsequent retention and disposal without the knowledge or consent of the parents. The judge characterised the claims for psychiatric injury into those brought by “primary victims” and “secondary victims”, adopting the analysis of Hale LJ in Hatton v Sutherland. [72] This distinction is reflected in s 30 of the Civil Liability Act, dealing with pure mental harm caused to a plaintiff arising from nervous shock “in connection with” the death or injury of another person. However, it is by no means clear that the distinction is necessarily apt in relation to cases where there is a pre-existing relationship between the plaintiff and the defendant, whether by way of a doctor/patient relationship or one of employer/employee, as in Gifford v Strang Patrick Stevedoring Pty Ltd. [73] The judge’s conclusion with respect to the relationship of the parents with the medical officers treating their children was identified as follows:

“[206]   … Once the doctor-patient relationship is established, as I hold it is, in my view, the clinician owed a duty of care when seeking consent for a post-mortem examination. Although the statutory duty is to ensure non-objection, that must, in my judgment, involve some explanation of to what the parents are being asked not to object. Again, in my opinion, that must involve some explanation of the procedures of a post-mortem of which the removal and retention of organs is a relevant part. In the circumstances, I hold that the duty of care extended to giving the parents an explanation of the purpose of the post-mortem and what it involved including alerting them to the fact that organs might be retained.”

71. [2005] QB 506; [2004] EWHC 644 (QB).

72. [2002] ICR 613 at [21]; Organ Retention Group at [193] and [200].

73. (2003) 214 CLR 269; [2003] HCA 33 at [10] and [15] (Gleeson CJ); [46]-[47] (McHugh J); [89] (Gummow and Kirby JJ); [101] (Hayne J) and [118] (Callinan J).

60. It may be observed that none of these cases provides support for a duty of care owed by police officers involved in a rescue operation after a fatal accident, with respect to their handling of the body of a deceased person, being a duty owed to the relatives of the deceased.

61. It is convenient to note two passages in the opinion of Lord Keith in Hill, one of which was relied upon by the appellants and the other of which is reflected in the Civil Liability Act.

62. The first passage, relied on by the appellants, was to the following effect: [74]

“There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence. Instances where liability for negligence has been established are Knightley v Johns [75] and Rigby v Chief Constable of Northamptonshire.”

Rigby was a decision of a judge in the Queen's Bench Division and Knightley a decision of the Court of Appeal; nonetheless, no doubt was cast upon them in Hill, nor in the subsequent decision of the Supreme Court in Michael, which specifically mentioned them with apparent approval. [76]

74.    Hill at 59C-D.

75. [1982] 1 WLR 349.

76.    Michael at [37] (Lord Toulson).

63. These two cases have also been referred to in this Court. Thompson v Vincent [77] involved a private dispute between two individuals over entitlement to property, in the course of which police intervened to prevent breaches of the peace. A claim was made against the police for negligently failing to intervene in a timely fashion. The Court dismissed as untenable the proposition that the police owed disputants a duty of care in the exercise of their powers to prevent a breach of the peace. [78] However, Mason P said that, “[t]his is not to say that police may never act in such a way as to assume a duty of care in a particular task”, referring to Knightley and Rigby. [79] Knightley and Rigby were again referred to with apparent approval by this Court in Klein. [80]

    77. [2005] NSWCA 219; 153 A Crim R 577 (Mason P; Handley JA and Pearlman AJA agreeing).

    78.    Thompson at [153]-[154].

    79.    Thompson at [154]; Mason P also referred to Zalewski v Turcarolo.

    80.    Klein at [17], [33], [34] and [35].

64. Knightley is of no present relevance: it involved a claim by a police officer who had been permitted to drive on the wrong side of the road to reach the scene of an accident and was hit by a motorist coming towards him.

65. Rigby involved an incident at a gunsmith shop in Northampton. A man described by Taylor J as a “young psychopath” had broken in to the shop and armed himself. There were tins of inflammable powder in the shop. After failing for some hours to convince the offender to surrender, the police fired a canister of CS gas into the shop. Use of the canister involved the risk of fire. At the time the canister was fired, there were no fire services in attendance. A fire occurred and the shop was set ablaze. The owner of the shop sued the police in negligence and succeeded. The finding may have been correct, but there was no discussion of the principles applicable to establishing a duty of care with respect to the use of the gas canister without fire protection. Nor has there been discussion in any of the subsequent cases as to whether the approach adopted was consistent with more recent authorities.

66. The facts in Rigby may be compared with those in Klein, where no duty of care arose. The plaintiff was the mother of a young man who had previously exhibited signs of mental illness, had armed himself with a number of knives and was believed to be under the influence of drugs. Whether that was so or not, he was certainly acting irrationally; [81] he had lit a fire in the house and was inflicting injury on himself. The police, being unable to persuade him to surrender, shot him and he died. His mother, who was present in the vicinity at the time he was shot, alleged that the police owed her a duty of care to avoid negligent infliction of psychiatric harm. The Court upheld an appeal by the State against a refusal to dismiss the claim, finding that the alleged duty of care was untenable.

    81.    Klein at [5]-[6].

67. Knightley and Rigby were followed in the Victorian case of Zalewski. The plaintiff, also a young man with a history of psychiatric illness and violent behaviour, was shot and wounded by police and sued for damages in negligence. The plaintiff was successful at trial. The issue on appeal was whether the defendants enjoyed an “immunity” from suit in the circumstances. Hansen J (with whom Brooking and J D Phillips JJ agreed) discussed the House of Lords decision in Hill, noting that Knightley and Rigby were referred to with approval. [82] The appeal was dismissed.

    82.    Zalewski at 576.

68. The circumstances of the present case as pleaded may be contrasted with the actions of police or other emergency services where there has been a spillage of oil on the road after a motor vehicle accident, or where there is a disabled unlit vehicle on the carriageway. The primary purpose of police involved in such events would be to make the road safe for road users. A failure to remove all the oil, or to prevent vehicles travelling over the road without warning that it might be slippery or that part of a lane is blocked, would invite a claim in negligence in the case of an accident. [83] In Ticehurst v Skeen [84] a duty of care to road users was derived from the purpose of the police function, namely to prevent accidents and protect the safety of road users.

    83. See Ancell v McDermott [1993] 4 All ER 355; Clough v Bussan [1990] 1 All ER 431; Gibson v Orr, Chief Constable of Strathclyde Police [1999] SC 420; discussed in R Clayton and H Tomlinson, Civil Actions Against the Police (Thomson, 3rd ed, 2003) at [10-069] – [10-073].

    84. (1986) 3 MVR 307 at 319 (Wood J); the finding that a duty was owed was rejected by Campbell JA in Tyszyk at [146].

69. Early in 2018, the UK Supreme Court upheld the claim of a bystander who was knocked over and injured in the course of a struggle between police officers and a suspected drug dealer whom they were arresting. In Robinson, Lord Reed (with whom Lady Hale P and Lord Hodge agreed) affirmed the reasoning in Hill and in Michael. Lord Reed stated:

“[45]   For the purposes of the present case, the most important aspect of Lord Keith’s speech in Hill is that, in the words of Lord Toulson (Michael, para 37), ‘he recognised that the general law of tort applies as much to the police as to anyone else’. What Lord Keith said was this:

‘There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence.’ (… emphasis supplied.)

…

[55]   The case of Hill is not, therefore, authority for the proposition that the police enjoy a general immunity from suit in respect of anything done by them in the course of investigating or preventing crime. On the contrary, the liability of the police for negligence or other tortious conduct resulting in personal injury, where liability would arise under ordinary principles of the law of tort, was expressly confirmed. Lord Keith spoke of an ‘immunity’, meaning the absence of a duty of care, only in relation to the protection of the public from harm through the performance by the police of their function of investigating crime.”

70. Neither side placed weight on Robinson in the course of submissions. The broad thrust of the reasoning underlying Lord Reed’s judgment is not entirely consistent with the approach dictated in this country by cases such as Graham Barclay Oysters, which requires, in determining whether there is a common law duty of care owed to particular persons by a statutory authority, “a close examination of the terms, scope and purpose of the relevant statutory regime.”[85] If Robinson were to be accepted, it may be on a narrower basis identified by Lord Mance, namely that “we should now recognise the direct physical interface between the police and the public, in the course of an arrest placing an innocent passer-by or bystander at risk, as falling within a now established area of general police liability for positive negligent conduct which foreseeably and directly inflicts physical injury on the public.”[86]

    85. Graham Barclay Oysters at [146].

    86. Robinson at [97].

71. A second passage in the reasoning of Lord Keith in Hill, which immediately followed that set out above, reads as follows: [87]

“By common law police officers owe to the general public a duty to enforce the criminal law: see Reg v Commissioner of Police of the Metropolis, Ex parte Blackburn. [88] That duty may be enforced by mandamus, at the instance of one having title to sue. But as that case shows, a chief officer of police has a wide discretion as to the manner in which the duty is discharged. It is for him to decide how available resources should be deployed, whether particular lines of inquiry should or should not be followed and even whether or not certain crimes should be prosecuted. It is only if his decision upon such matters is such as no reasonable chief officer of police would arrive at that someone with an interest to do so may be in a position to have recourse to judicial review. So the common law, while laying upon chief officers of police an obligation to enforce the law, makes no specific requirements as to the manner in which the obligation is to be discharged. That is not a situation where there can readily be inferred an intention of the common law to create a duty towards individual members of the public.”

87.    Hill at 59D-F.

88. [1968] 2 QB 118.

72. Claims for psychiatric injury, even where said to be a direct consequence of contact with the police, have not been successful in the UK. [89] The leading authority involved a young person who was assaulted in a racist attack in the course of which his friend was murdered. In striking out a claim for psychiatric injury in Brooks v Commissioner of Police of the Metropolis,[90] Lord Steyn stated:

“[30]   But the core principle of Hill has remained unchallenged in our domestic jurisprudence and in European jurisprudence for many years. If a case such as the Yorkshire Ripper case, which was before the House in Hill, arose for decision today I have no doubt that it would be decided in the same way. It is, of course, desirable that police officers should treat victims and witnesses properly and with respect…. But to convert that ethical value into general legal duties of care on the police towards victims and witnesses would be going too far. The prime function of the police is the preservation of the Queen's peace. The police must concentrate on preventing the commission of crime; protecting life and property; and apprehending criminals and preserving evidence …. A retreat from the principle in Hill would have detrimental effects for law enforcement. Whilst focusing on investigating crime, and the arrest of suspects, police officers would in practice be required to ensure that in every contact with a potential witness or a potential victim time and resources were deployed to avoid the risk of causing harm or offence. Such legal duties would tend to inhibit a robust approach in assessing a person as a possible suspect, witness or victim. By placing general duties of care on the police to victims and witnesses the police's ability to perform their public functions in the interests of the community, fearlessly and with despatch, would be impeded. It would, as was recognised in Hill, be bound to lead to an unduly defensive approach in combating crime.”

89. In Australia, see Stuart v Kirkland-Veenstra (2009) 237 CLR 215; [2009] HCA 15.

90. [2005] 1 WLR 1495; [2005] UKHL 24.

73. In the course of his opinion in Brooks, Lord Steyn put to one side cases of “outrageous negligence by the police”,[91] perhaps reflecting the concept of Wednesbury unreasonableness accepted as a basis for judicial review of police action in Lord Keith’s second passage set out above from Hill. [92] That point may have resonance in this jurisdiction given the terms of s 43A of the Civil Liability Act. The section applies to the exercise or failure to exercise a “special statutory power”, which is a power of a kind that persons generally are not authorised to exercise without specific statutory authority. Much police activity will fall within that concept. Pursuant to s 43A(3), the exercise or failure to exercise such a power “does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.”

    91. Brooks at [34].

    92.    See also Robinson at [93] (Lord Mance DP).

Assessment of existence of duty

74. The present facts, surprising as they may seem, represent a novel situation for the application of the principles discussed above. Whether there is a reasonable cause of action available to the appellants must turn upon an understanding of the circumstances in which duties of care have and have not been imposed with respect to the conduct of police in past cases.

75. An important factor in determining whether a duty of care is owed is the need to maintain coherence in the law and to avoid the imposition of a duty which may be inconsistent with, or incompatible with the public duties imposed by statute or the common law.

76. The State submitted that a duty would not be imposed even absent inconsistent obligations or conflicting claims or obligations where, in the language of Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [93] “the observance of such common law duty of care would be inconsistent with or have a tendency to discourage, the due performance by the local authority of its statutory duties” (emphasis added). That passage was cited with apparent approval in Sullivan. [94]

    93. [1995] 2 AC 633 at 739.

    94.    Sullivan at [30] and [59].

77. Lord Browne-Wilkinson explained his reference to a “tendency to discourage” by noting that a decision to intervene in a possibly abusive or neglectful family setting might be subject to a “substantial temptation to postpone making such a decision until further inquiries have been made in the hope of getting more concrete facts.”[95]

    95. X (Minors) at 750; Sullivan at [30].

78. The appellants contended that there was no inconsistency or incompatibility between the public interest in the collection and retention of human remains and a duty of care owed to relatives to carry out that function with due care and diligence. Nor could it be said that the imposition of a duty of care would interfere in any practical sense with the public interest in the collection of such remains.

79. There is no doubt that the appellants have an arguable case that the duty of care they proposed involved no actual inconsistency, nor a tendency to interfere, with the proper exercise of the public function being exercised. If that were an essential element in refusing to accept the existence of a duty of care, the claim should go to trial.

80. Although the weight of authority at the intermediate court level is against the duty for which the appellants contend, there is a point of possible uncertainty in High Court authority which would warrant permitting them to run their case at a trial. Their contention depends on the correct reading of the passage in Sullivan v Moody dealing with claims against public authorities or their officers. It was expressed in what appears to be a final statement of principle in the following terms:

“[60]   … Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.”

81. There may be a level of uncertainty as to the standard envisaged by the phrase “conflicting claims or obligations.” The language appears to be consistent with that used in the first part of the paragraph, dealing with a duty of care owed by an individual, such as a medical practitioner. The Court said that a duty giving rise to “inconsistent obligations” would ordinarily be denied.

82. Although the Court had earlier referred to the language of Lord Browne-Wilkinson in X (Minors), using as an alternative to inconsistent obligations, a “tendency to discourage”, it is at least arguable that the statement set out above was deliberate in not repeating the language of “tendency to discourage”.

83. Further, the insistence in Graham Barclay Oysters that the existence or otherwise of a duty of care will turn upon “a close examination of the terms, scope and purpose of the relevant statutory regime” suggests that a claim should not be summarily dismissed until it can be said that (a) the particular statutory regime has been properly identified and (b) an affirmative finding of conflicting claims or obligations has been made. It has not yet been possible to carry out that task in the present case.

Conclusions with respect to dismissal of claim

84. The task faced by the trial judge on the summary dismissal application was rendered more difficult than it might have been by three circumstances. First, there were significant deficiencies in the pleading, coupled with limited analysis of the particular function being undertaken by the police at the scene of the accident.

85. Secondly, although the State drew the judge’s attention to the terms of s 42 of the Civil Liability Act, the relevance of the resources available to the police was not entirely clear. The reference may have been intended to imply that to raise a duty of care in such circumstances would engage the court with assessment of resource allocation decisions within the police force, which decisions were not open to challenge. [96]

    96. Civil Liability Act, s 42(b).

86. Thirdly, the reliance placed on the UK decision of Hill was not in terms determinative. If the references to the Hill principle were properly to be understood as reliance upon the potential for inconsistency or incompatibility between the public function exercised by police and the duty of care allegedly owed to individual members of the public, that principle required further analysis. The force of the tendency to discourage relied upon by the State could have been assessed in the context of s 213 of the Police Act granting immunity to officers for injury or damage caused by any act or omission in the exercise of a function conferred or imposed by or under the Act or any other law, if undertaken in good faith. The scope of the statutory immunity, and its implicit assumption that a duty of care may arise under the general law, would need consideration in specific circumstances. It may mitigate any tendency for a duty of care to interfere with the proper exercise by police of their public functions.

87. The conclusion that there may be uncertainty as to the precise exercise to be undertaken in assessing whether there are conflicting claims or obligations, as explained above, warranted the refusal of the motion for summary dismissal.

88. Finally, it is important to note that none of the facts alleged in the appellants’ statement of claim have been proven: for the purposes of the present application, they have simply been assumed to be correct.

Orders

89. These reasons support the following orders:

1. Grant the applicants leave to appeal from the judgment of the District Court dismissing their claims.

2. Allow the appeal and set aside the orders entered on 1 December 2017.

3. In place thereof, order that –

1. the defendant’s motion filed 29 May 2017 be dismissed;

2. the defendant pay the plaintiffs’ costs of the motion.

4. Order that the respondent pay the applicants/appellants’ costs in this Court.

90. WHITE JA: I have had the advantage of reading in draft the reasons for judgment of Basten JA. I agree with his Honour’s conclusions and the orders he proposes.

91. As Basten JA has explained, the plaintiffs propound what appears to be a novel claim that in carrying out their task of removing or arranging for the removal of the deceased’s body parts from the scene of the accident, the police officers owed the plaintiffs a duty to take reasonable care to protect them from psychological harm. For the reasons given by Basten JA, at least when the matter is considered at the preliminary stage of an application for summary dismissal, it cannot clearly be concluded that the duty claimed would tend to have an inhibiting effect upon the discharge of the police officer’s functions, or require the Court to rule upon a decision regarding allocation of resources.

92. In Wickstead v Browne (1992) 30 NSWLR 1 Kirby P said (at 5):

“Common experience teaches that it is usually more efficient and just to consider the viability of a cause of action when the facts said to support it are adduced and the suggested action can be judged with a full understanding of all relevant evidence. Testimony gives colour and content to the application and development of legal principle.” [97]

97.    Kirby P was in dissent on this point but the High Court allowed the appeal and expressed general agreement with his Honour’s reasons (Wickstead v Browne (1993) 10 Leg Rep SL 2).

93. A decision as to whether the asserted duty of care exists should be made after the facts have been found (consistently with Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [25], [54]-[55]). It is not necessary to express a view on the range of issues that may call for decision. Whether the police were exercising common law or statutory powers, whether, if they were exercising statutory powers they could only owe the duty of care asserted if there is an implied statutory purpose of protecting individuals or a class involving relatives of the deceased, or whether other cases have been correctly decided, are not questions presently calling for decision. It is sufficient in my view, that for the reasons Basten JA has explained, the bases upon which the primary judge summarily dismissed the plaintiffs’ claim cannot be sustained and the postulated duty of care is not contrary to ultimate appellate authority.

94. The respondent did not contend that if the appellants’ claim were not summarily dismissed, nonetheless the statement of claim should be struck out with liberty to replead. This was not the subject of argument. A final iteration of a pleading can only be formulated when all the facts are known, which they may not yet be. The formulation of pleadings should be left to case management by the District Court.

95. Accordingly, I agree with the orders proposed by Basten JA.

96. EMMETT AJA: The question in these three proceedings is whether, in removing, from the scene of an accident, the body of a deceased driver of a motor vehicle, who had been killed as a consequence of the accident, police officers owed a duty to members of the family of the deceased to ensure that the removal of the body of the deceased was complete and that no part of the body of the deceased and his clothing containing remains of the deceased were left at the scene of the accident.

97. In June 2013, Mr Keith Wilson (the Deceased) was fatally injured when the truck that he was driving collided with another truck on the Pacific Highway at Nabiac in New South Wales. Police officers and other agents of the State, acting in accordance with powers conferred by s 43 of the Coroners Act 2009 (NSW), purported to take possession of the remains of the Deceased and remove or cause the removal of the remains of the Deceased.

98. In February 2014, the widow and two daughters of the Deceased visited the scene of the accident where, they alleged, they found part of a foot and ankle and clothing that were the remains of the Deceased. They alleged that they recognised the remains and clothing as belonging to the Deceased and, as a consequence, suffered psychological damage.

99. Each of them commenced separate proceedings in the District Court of New South Wales seeking damages from the State of New South Wales (the State) for the psychological harm they claimed to have suffered as a result of the discovery. The State was said to be liable, under the Law Reform (Vicarious Liability) Act 1983 (NSW), for the negligence of police officers in failing to remove all parts of the Deceased’s body and personal effects from the scene of the accident and failing to warn the members of his family of the possibility that some body parts had been left at the scene of the accident.

100. On 28 November 2017, for reasons published on that day, a judge of the District Court (the primary judge) ordered that all three proceedings be dismissed summarily. Each of the plaintiffs in the three proceedings has applied for leave to appeal from that summary dismissal. A direction has been given that the hearing of the application for leave and the appeal if leave be given be heard concurrently.

101. I have had the advantage of reading in draft form the proposed reasons of Basten JA. I agree with his Honour that the case is an appropriate one for the grant of leave to appeal, for the reasons proposed. Further, I agree that the case was not one where summary dismissal was appropriate where it was arguable that a duty of care might turn upon factual issues not revealed by the pleadings. However, the appellants did not seek to demonstrate how further actual issues might arise. Perhaps more significantly, they did not seek to amend the pleadings, which are undoubtedly deficient in a number of respects, particularly in failing to identify any act of negligence on the part of any police officer.

102. I agree with Basten JA that the appeals should be allowed and the orders for summary dismissal should be set aside. In lieu thereof, there should be orders that the State’s motion of 29 May 2017 be dismissed and that the State pay the plaintiffs’ costs of the motion. However, I would also order that the statements of claim be struck out but grant leave to the plaintiffs to file amended statements of claim demonstrating an arguable cause of action in the light of the principles stated by Basten JA. Such leave to replead would be without prejudice to the State’s entitlement to move again for summary dismissal of any amended pleading. I agree that the State should pay the appellants’ costs of the applications for leave and the appeal.

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Endnotes

Amendments

03 October 2018 - Typographical errors amended in:

Headnote, holding 2.

[59] in the quote.

[62] Final sentence.

[88] First sentence.

03 October 2018 - Coversheet and [89]:

Capitalising "court" in "District Court" in order (1).

Amending "cost" to read "costs" in order (4).

Decision last updated: 03 October 2018