Fuller-Wilson v State of New South Wales

The applicants, Fuller-Wilson and others, appealed to the Court of Appeal of New South Wales against the summary dismissal of their negligence claims against the State of New South Wales. The plaintiffs alleged that police officers, in failing to remove the remains of a deceased family member from the scene of a fatal motor vehicle accident, caused them psychological injury. The primary judge had dismissed the proceedings on the basis that the police officers did not owe the plaintiffs a duty of care.

The central legal issues before the Court of Appeal were whether it was reasonably arguable that the police officers owed the plaintiffs a duty of care, and consequently, whether the proceedings should have been summarily dismissed. This involved considering whether the police officers assumed responsibility at the accident scene, whether recognising such a duty would give rise to incoherence or inconsistent obligations, and the relevance of the salient features analysis in determining the existence of a duty of care. The court also had to consider the circumstances in which public authorities owe a duty of care in the performance of their statutory functions, particularly in light of the principles established in *Sullivan v Moody* and the authority of *Hill v Chief Constable of West Yorkshire*.

The Court of Appeal found that there was a reasonably arguable case that the police officers owed the plaintiffs a duty of care. The court reasoned that the weight of current authority might be against the existence of such a duty, but that an argument was available for the extension of the common law to recognise it. The court considered that the primary judge had erred in summarily dismissing the proceedings, as the plaintiffs had presented a case that warranted further examination.

The Court of Appeal granted the applicants leave to appeal, allowed the appeal, and set aside the orders of the District Court dismissing the claims. The court ordered that the defendant's motion for summary dismissal be dismissed and that the defendant pay the plaintiffs' costs of that motion. The respondent was also ordered to pay the applicants' costs in the Court of Appeal.