Halech v State of South Australia - [2006] SASC 29

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
HALECH v STATE OF SOUTH AUSTRALIA
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Debelle and The Honourable Justice Besanko)
3 February 2006
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - REASONABLE FORESEEABILITY OF DAMAGE - PARTICULAR CASES - AFFECTING PUBLIC AUTHORITIES
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - WHERE NERVOUS SHOCK OR MENTAL DISORDER - COMMON LAW
Appeal against dismissal of action for damages for negligence by a relative of a deceased victim of road accident where body was misidentified - appellant's claim based on major depressive disorder alleged to have been caused by negligence of police officers conducting identification procedures - whether duty of care owed by police officers in circumstances - whether official duties incompatible with duty to appellant - discussion of principles relevant to claim for damages for nervous shock - whether causal relationship between actions of police officers and alleged injury - appeal dismissed.
Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, applied.
Sullivan v Moody (2001) 75 ALJR 1570; Hill v Chief Constable of West Yorkshire [1989] AC 53; Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495, discussed.
Hillman v Black & Ors (1996) SASR 490, considered.

HALECH v STATE OF SOUTH AUSTRALIA
[2006] SASC 29
Full Court: Duggan, Debelle and Besanko JJ

DUGGAN J. This is an appeal against the dismissal of a claim for damages for negligence brought by the appellant against the respondent.
The action arose out of an unusual set of circumstances. The appellant is the son of Ms Halech who was killed in a car accident at Glenburnie in the south-east of the State on 20 February 1998. The appellant’s mother was one of four occupants of a vehicle, all of whom were killed instantly in the accident. In essence, the appellant’s case is that the police officers investigating the accident were negligent in the steps they took to identify Ms Halech and another female victim of the accident, Ms Fetishinski. As a result, Ms Halech was identified as Ms Fetishinski and vice-versa. The error was not discovered until some time after Ms Halech was buried and Ms Fetishinski was cremated.
The appellant claims that he suffered a major depressive disorder as a result of the alleged negligence by the police for which the State is vicariously liable.
An order was made prior to the trial directing that the issue of liability be determined as a separate issue. After hearing the evidence, the master who presided at the trial reached the conclusion that the police officers did not owe a relevant duty of care to the appellant. The appellant’s claim was dismissed along with a similar claim by Ms Fetishinski’s stepdaughter. However, in the course of his reasons for decision, the master considered whether, if there had been a duty of care as alleged, it had been breached by the officers. On the assumption that there was a duty of care, the master found that it was negligent for the police officers to attribute names to the bodies at the scene of the accident.
Finally, the master concluded that there was no causal connection between the mistakes made by the police officers and the injury complained of by the appellant.
The principal grounds of appeal are that the master erred in finding that there was no relevant duty of care owed by the police officers and that causation had not been established.
The accident and its aftermath
The accident took place at approximately 12.20 pm on Friday 20 February 1998. Ms Halech and her companion, Mr Szamanowski, were touring the area with their friends Ms Fetishinski and her husband.
The two couples were travelling in a sedan. At the time of the accident Mr Fetishinski was driving and Mr Szamanowski was seated in the front passenger seat. The two women were seated in the rear of the vehicle.
Mr Fetishinski disobeyed a give way sign and drove out onto the Princess Highway into the path of a logging truck which was travelling along the highway. The truck ran into the side of the sedan and ended up on top of it. There was extensive damage to the sedan.
At an early stage in the investigation, the names of the occupants of the vehicle were ascertained through the owner of the vehicle which had been leased to the four deceased. Before the bodies were removed from the vehicle the police marked the position of each body with a texta pen. The markings were made on the hands of the deceased.
Two handbags which were found in the vehicle were retained by the police officers. It would appear that the names of the female deceased were ascertained by reference to the contents of the handbags. A tentative identification of the driver, Mr Fetishinski was made through documentation found in his clothing.
The police maintained an operations log at the scene of the accident. This log was not tendered as an exhibit at the trial, but Senior Constable Wasley, an investigator attached to the Major Crash Investigation Section, stated that he prepared his own log and, in doing so, copied information from the log which was being kept by other officers at the scene. One of the entries which he copied sets out the names of the four deceased and an indication of their respective locations in the vehicle. The entry refers to Mr Fetishinski as “driver” and the other male passenger as “Male F/Left Passenger”. The entry relating to Anastasia Haleck [sic] refers to “Right Rear” and that relating to Lioudmila Fetishinski refers to “Rear Left”. It is unclear why the police officers ascribed these positions to the female bodies, but it is not in dispute that the information in the log was incorrect in this respect.
According to Senior Constable Wasley, he copied this information into his log while he was still at the scene. Although no further evidence was called as to when and by whom the entries were made in the log, it is clear on Wasley’s evidence that the entries to which I have referred were made in the original log by other police officers who attended the scene and while they were still there.
The master made the following findings in relation to this evidence:
It emerges from a consideration of the police officers’ statements attached to Sergeant Howells’ report that, to the extent that names were attributed to the female passengers at the scene of the accident, there was no warrant to do so. It is apparent from the statement of Senior Constable Wasley that he recorded in his log the names of the two females and their respective positions in the motor vehicle. He says that he got this information from a handwritten log prepared by other police officers. The cumulative effect of all of this evidence is that it appears that at the scene of the collision a record had been made by a police officer whereby the wrong names were attributed to the female bodies found in the rear of the Magna motor vehicle. It is clear from what occurred at the scene of the collision that there was no justification for doing so because the only means by which a name might be attributed to a particular female body was by reference to the presence of handbags in the rear of the vehicle immediately after the collision. It was not possible, then or at any other time, to say which of the deceased women was the owner of which handbag other than by reference of the contents of the handbag.
The bodies were then transported to Adelaide. On Saturday 21 February, the day after the accident, the police arranged for the appellant and his sister, Ms Caddy, to attend at the Forensic Science Centre (“the Centre”) to identify Ms Halech.
Ms Caddy identified a female body shown to her as Ms Halech. The appellant said in evidence that at first he was unsure about the identity of the body and he communicated this to the police officer who was present. However, he then identified the body to the police officer present as Ms Halech. In fact, the body was that of Ms Fetishinski. On the same day Ms Fetishinski’s stepdaughter, Ms Marton, was asked to identify a female body. She said that it was the body of her stepmother, Ms Fetishinski. In fact it was the body of Ms Halech. I will refer in more detail to these identifications later in these reasons.
Post-mortem examinations were conducted on the bodies which were then released to funeral directors. Some days later, the police decided to invite the relatives to take part in a second identification procedure. Constable Wynne, who gave evidence at the trial, said he contacted Ms Marton who agreed to attend a funeral parlour for the purpose. When asked in evidence why the police decided to conduct this procedure he said he was led to believe that the appellant “was not 100% sure on the identity of his mother”.
The appellant and his sister declined to take part in a second identification procedure. However, Ms Marton confirmed that the body shown to her at the funeral parlour which is now known to have been that of Ms Halech, was that of her stepmother Ms Fetishinski.
The body erroneously thought to be that of Ms Fetishinski, was cremated and the ashes transported to Russia by Ms Fetishinski’s relatives. The body thought to be that of Ms Halech was buried.
The pleadings
The appellant claimed that the mis-identification and release of the bodies to the wrong persons was due to the negligence of the respondent. The following particulars of negligence were alleged by the appellant in his statement of claim:
15.1An Officer or Officers of the defendant failed to take due care in the labelling of the bodies of Ms Halech and Ms Fetishinski at the motor vehicle accident scene.
15.2Officers of the defendant including Senior Constable Wasley failed to record information which they should reasonably have recorded and which information would show there was doubt as to the identity of the bodies of Ms Halech and Ms Fetishinski.
15.3The officers of the defendant failed to take any or any adequate action to check the identity of the bodies of Ms Halech and Ms Fetishinski prior to the bodies being transferred to Mount Gambier and later to Adelaide.
15.4The defendant failed to have any or any adequate procedure in place for checking the labelling of the bodies and identifying Ms Halech on the Report of Death form.
15.5In the circumstances, the defendant should reasonably have made further checks or tests to ensure the accurate identification of the bodies of Ms Halech and Ms Fetishinski.
15.6The defendant failed to advise the plaintiff of any doubt, or reasonable basis for doubt, as to the correct identification of Ms Halech and Ms Fetishinski.
15.7The defendant failed to give the plaintiff any proper opportunity to identify the body of Ms Halech in that:
15.7.1The plaintiff was not shown the body of Ms Halech;
15.7.2The plaintiff was advised prior to being shown the body of Ms Fetishinski that that was the body of Ms Halech;
15.7.3The defendant failed to reveal sufficient of the body of Ms Fetishinski to enable plaintiff to identify that the body of Ms Fetishinski was not the body of Ms Halech;
15.7.4The body of Ms Fetishinski was positioned behind glass and 4 to 5 feet from the plaintiff which did not enable the plaintiff to determine that the body of Ms Fetishinski was not that of Ms Halech;
15.7.5The defendant failed to provide the plaintiff jewellery, clothing or other effects recovered from the body of Ms Fetishinski the provision of which would have enabled the plaintiff to determine that the body of Ms Fetishinski was not that of Ms Halech.
15.8The defendant failed to take any steps to check the identification of the bodies of Ms Fetishinski and Ms Halech after the plaintiff said words to the effect that he was unsure that the body he identified was that of Ms Halech including failing to check photographs of the bodies in the vehicle at the scene of the accident.
According to the statement of claim, the appellant suffered “psychiatric injury in the nature of a major depressive order; the onset of which occurred between about May 1998 and November 1998”.
The circumstances upon which the particulars of negligence are based can be divided into two stages: the conduct of the police officers at the scene of the accident which resulted in incorrect information being included in the operations log as to the identity of the two female bodies; and the subsequent conduct of the police officers in carrying out the formal identification procedures in which the relatives of the deceased took part. Included in the latter category are allegations that no attempt was made to employ other methods of identification such as dental investigations.
The main thrust of the appellant’s case was directed towards the investigation of the accident by the police officers at the scene. According to the appellant’s argument, the investigating officers breached a duty of care owed to the appellant at this point in the investigation by mis-labelling the bodies of the two female accident victims, a mistake which was compounded by subsequent actions and inaction associated with the procedures which they embarked upon in order to identify the bodies.
The master found that no duty of care was owed to the appellant. After reviewing a number of authorities dealing with allegations of negligence by police and other government officers in the course of their duties, he said:
In my opinion, the authorities referred to above, when applied to the plaintiffs’ respective claims, lead to the conclusion that no duty of care, as contended for by the plaintiffs, arises. To hold otherwise would create a real possibility of a conflict of duties on the part of police officers when investigating motor vehicle accidents. In arriving at this conclusion, I have considered the question of a duty arising in respect of the public in general and a duty arising in respect of a limited class of persons. The latter does not arise from the reasons advanced when discussing the case of SwanvStateof South Australia (1994) 62 SASR 532. The former does not arise because such a wide-ranging duty would undermine or inhibit the primary responsibilities of police officers to investigate motor vehicle collisions.
It follows that the plaintiffs’ respective claims must be dismissed.
In Tame v New South Wales; Annetts v Australian Stations Pty Limited (Tame) (2002) 211 CLR 317 the appellant Tame claimed that the New South Wales government was vicariously liable in a negligence action in which it was alleged she suffered a psychiatric injury by reason of the tortious conduct of a police officer. The appellant was involved in a traffic accident and the police officer recorded on an official form that she was affected by alcohol at the time of the accident. The comment was a careless misstatement and it was subsequently corrected. Nobody relied upon it for any official purpose, but the appellant claimed that she suffered psychiatric depression which was caused by the discovery of the misstatement and her reaction to it.
The members of the court considered the circumstances in which it was appropriate to award damages for negligently inflicted mental harm. The context in which the discussion took place is particularly relevant to the present case in that the negligent conduct alleged was carried out by a police officer in the course of his duties.
The court held that, save in exceptional circumstances, there can be no liability unless the negligent conduct results in a recognised psychiatric injury; emotional distress, for example, would not suffice: [7], [44], [193].
Reference was made to the well-established principle that reasonable foreseeability of harm of the kind in issue, of itself, will not give rise to a duty of care. Gleeson CJ pointed out at [52]:
Save for those who fall within the “direct perception rule”, as extended by Jaensch v Coffey, a person will be able to recover for psychiatric injury only if there is some special feature of the relationship between that person and the person whose acts or omissions are in question such that it can be said that the latter should have the former in contemplation as a person closely and directly affected by his or her acts.
The nature of the activity in which the alleged tortfeasor was involved at the time of the incident under consideration may lead to a denial of the existence of a duty of care. Gleeson CJ said at [23]-[27]:
There are, in my view, two reasons why Acting Sergeant Beardsley was not under a duty of care to Mrs Tame which required him to take reasonable care to avoid causing her injury of the kind she suffered. The first reason relates to the nature of the activity in which Acting Sergeant Beardsley was involved when he performed the act of completing the accident report and filling in, incorrectly, information about the results of Mrs Tame’s blood test, and the relationship that existed between him and Mrs Tame. The second reason, which is essentially the basis upon which the Court of Appeal found against Mrs Tame, relates to reasonable foreseeability.
As to the first reason, the case seems to me to be governed by the same principles as resulted in the denial by this Court of the existence of a duty of care in Sullivan v Moody (2001) 75 ALJR 1570; 183 ALR 404.
In the performance of his duties, Acting Sergeant Beardsley was completing an official report into the circumstances of a motor traffic accident. In the ordinary course, the report would be used in making a decision as to whether charges should be laid against anybody involved in the accident. The two people involved were Mr Lavender and Mrs Tame. Copies of the report would also be available, on request, and for a fee, to third parties, such as litigants, their solicitors and insurers. Primarily, however, this was an official police report of the incident, and of the result of police observations, inquiries and tests.
The primary duty of a police officer filling out such a report is to make available to his or her superiors, honestly and frankly, the results of the observations, inquiries and tests that were made. It would be inconsistent with such a duty to require the police officer to take care to protect from emotional disturbance and possible psychiatric illness a person whose conduct was the subject of investigation and report. See Sullivan v Moody (2001) 75 ALJR 1570 at 1580 [60]; 183 ALR 404 at 417.
Not only was there no such relationship between Acting Sergeant Beardsley and Mrs Tame as would make it reasonable to require that he should act in contemplation of the danger of psychiatric injury to her; the relationship between them was inconsistent with such a requirement.
Hayne J said at [298]-[299]:
Police officers investigating possible contravention of the law do not owe a common law duty to take reasonable care to prevent psychiatric injury to those whose conduct they are investigating. Their duties lie elsewhere and to find a duty of care to those whom they investigate would conflict with those other duties. Sullivan v Moody (2001) 75 ALJR 1570; 183 ALR 404.
Mrs Tame committed no offence but, having been the driver of a motor car involved in an accident, police were doing no more than their duty in investigating whether there had been a breach of law. In undertaking that task they were bound by numerous obligations and restraints, both statutory and common law. To impose upon them a further duty to take reasonable care to avoid psychiatric injury to a person whose conduct was being investigated would constrain their proper performance of those other duties.
See also McHugh J at [124] and Gummow and Kirby JJ at [231].

In Sullivan v Moody the High Court rejected the argument that authorities required to investigate allegations of sexual abuse owed a duty to the alleged perpetrators of such abuse. The court referred to Hill v Chief Constable of West Yorkshire [1989] AC 53 where Lord Keith referred to the inappropriateness of imposing a duty of care owed to members of the community in respect of decisions made by police officers on issues of policy and discretion arising in the course of their investigations. The court observed at [42] that foreseeability that a careless act upon the part of one person may cause harm to another does not, of itself, require that the first person be made liable to compensate the second by way of damages for negligence if there is carelessness and harm results. In their joint judgment their Honours continued:
If it were otherwise, at least two consequences would follow. First, the law would subject citizens to an intolerable burden of potential liability, and constrain their freedom of action in a gross manner. Secondly, the tort of negligence would subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms. A defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care.
Later in the judgment their Honours said at [60]:
The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. 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.
See also Hillman v Black and Ors (1996) 67 SASR 490.
In Hill v Chief Constable of West Yorkshire the mother of the last victim of a serial killer claimed damages against the Chief Constable on behalf of her deceased daughter’s estate. It was argued that the police had been negligent in failing properly to investigate the earlier crimes committed by the offender. The House of Lords rejected the argument that a duty of care was owed in these circumstances. Lord Keith said:
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 [1982] 1 WLR 349 and Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242. Further, a police officer may be guilty of criminal offence if he wilfully fails to perform a duty which he is bound to perform by common law or by statute: see R v Dytham [1979] QB 722, where a constable was convicted of wilful neglect of duty because, being present at the scene of a violent assault resulting in the death of the victim, he had taken no steps to intervene.
By common law police officers owe to the general public a duty to enforce the criminal law: see R v Comr of Police of the Metropolis, Ex p Blackburn [1968] 1 QB 118. 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.
Hill’s case was applied in Brooks v Commissioner of Police of the Metropolis [2005]1 WLR 1495. The plaintiff and his friend were victims of a racist attack in the course of which the plaintiff’s friend was killed. The plaintiff brought an action against the police which included a claim for damages for negligence. According to the plaintiff’s case he suffered from severe post-traumatic stress disorder which was aggravated by the failure of the police to properly investigate the crime and, in particular, to treat him in an appropriate manner in his capacity as a victim and witness.
The House of Lords held that no duty of care was owed to the plaintiff. Lord Steyn said at [30]:
But the core principle of Hill’s case 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’s case, 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: compare the Police (Conduct) Regulations 2004 (SI 2004/645). 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: see section 29 of the Police Act 1996, read with Schedule 4 as substituted by section 83 of the Police Reform Act 2002; section 17 of the Police (Scotland) Act 1967; Halsbury’s Laws of England, 4^th ed reissue (1999), vol 36(1), para 524; The Laws of Scotland, Stair Memorial Encyclopaedia, vol 16, (1995), para 1784; Moylan, Scotland Yard and the Metropolitan Police, (1929), p 34. A retreat from the principle in Hill’s case 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’s case, be bound to lead to an unduly defensive approach in combating crime.
It is true, of course, that the application of the principle in Hill’s case will sometimes leave citizens, who are entitled to feel aggrieved by negligent conduct of the police, without a private law remedy for psychiatric harm. But domestic legal policy, and the Human Rights Act 1998, sometimes compel this result.
In determining whether the police officers were under a duty of care to the appellant in the present case when investigating the scene of the accident, it is necessary to consider the issues identified by Gleeson CJ in Tame: the nature of the activity in which the officers were involved and their relationship to the appellant.
The role of the police officers at the scene of the accident was to conduct a preliminary investigation into the circumstances surrounding the accident, record relevant information and attend to requirements of safety bearing in mind that the vehicles involved were obstructing the roadway. These functions are set out in some detail in the South Australian Police Crime Scene and Forensic Procedures Manual which was tendered at the trial.
Under the heading of “Assessment” the manual refers to the investigation of the nature of injuries of those involved in the accident, the facts surrounding the accident and the extent and boundaries of the scene of the accident. It also refers to the taking of witness statements. Attention is drawn to examining and recording information as to the extent of damage to the vehicle involved and marks on the roadway.
Information concerning the weather, visibility, road and lighting conditions must also be collected. The manual refers to the importance of sketch plans and the taking of photographs. Exhibits are to be collected and the importance of safety in the course of the investigation is also stressed. There is a section on the identification of bodies in the manual but, according to the evidence, that section is more relevant to large scale disasters.
I have said that Senior Constable Wasley included in his own log information as to the position of the bodies in the car which he obtained from a log kept by other police officers who were examining the scene of the accident. He then prepared “Report of Death” forms which he was required to send to the Coroner’s office. A separate form was required for each victim. In the forms relating to the female deceased he included the incorrect information as to where each body had been located in the vehicle. However, he also indicated on the forms that no identification of the bodies had taken place and he set out the date, time and place when identification procedures could be conducted.
It goes without saying that, in the case of some accidents, no attempt at identification will be possible at the scene. In other cases, there will be little difficulty in this respect and there will be many cases in between. If the occupants are unknown to the police officers and there are no witnesses to assist, any attempt at identification will be based on inference. At the most, the process will involve the expression of an opinion based on the available evidence. In these circumstances, the opinion which is expressed cannot be regarded as anything more than a tentative identification in circumstances in which it is expected that a more formal identification will take place subsequently. This was the situation in the present case. As I have said, there was evidence before the master which led him to conclude that an unknown police officer had recorded the information in the operations log which indicated where the two women were sitting in the vehicle. There was no evidence as to the basis upon which this assessment was made. Subsequent events established that the positions were wrongly recorded.
I do not think it is reasonable to conclude that the police officers investigating the scene of the accident should have had the possibility of psychiatric injury to persons such as the appellant in mind when attempting to identify the victims of the accident. As I have pointed out, they were doing no more than expressing an opinion as to where the victims were positioned in the car at the time of the accident. Opinions formed in these circumstances are tentative and based on information then available. The nature and extent of that information will vary considerably from case to case. 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.
Furthermore, it is my view that the nature of the activity in which the police were involved is inconsistent with the imposition of a duty of care of this kind. As I have said, the allegedly negligent acts of the police officers at the scene of the accident consisted of the expression of opinion based on available information. In my view, it would be contrary to the interests of the community if the recording in official reports of opinions formed in the course of police investigations was to be inhibited by the possibility of proceedings such as those which have been instituted in the present case. The investigation of road accidents is an important and necessary function which serves a variety of purposes, all of which are in the interests of the community. It would be inappropriate to impose a duty of care which could inhibit this investigational role.
In my view the master was correct in concluding that no duty of care was owed to the appellant in these circumstances.
Identification by the relatives
The remaining allegations of breach of duty of care relate to the formal identification procedures and the circumstances surrounding those procedures. The relevant particulars of negligence alleged are set out in the statement of claim at [15.5] – [15.8] inclusive (supra).
It is necessary to consider the evidence of what occurred during these procedures in more detail. I have said that the first identification procedure took place at the Forensic Science Centre on Saturday 21 February. The appellant said he went to the Centre with his sister Ms Caddy. There they spoke with a police officer. The appellant gave the following evidence of what then occurred:
AWe were told that we will be entering a small room with a window, the curtains will be drawn, when we are to step in there the windows were – the blinds were opened. He said ‘The blinds will be opened and we will be seeing your mother’ to that effect, that we will be seeing your mother – ‘You will be seeing your mother on the other side of the window’.
QHow long did you and your sister stay at the window?
AApproximately five minutes.
QWere you able to identify the body?
AI was never sure. I couldn’t say that that was my mother or not. I could not say that in all honesty.
The appellant was then asked what he said to the police officer who was supervising the identification procedure:
AHe stopped us in the corridor and he asked ‘Was that your mother’? It seems to me he asked my sister first – whether he did or not I don’t know, but my sister answered ‘Yes, yes it was my mother’. And he sort of looked at me and I said ‘I don’t know, I’m not sure’. But at that stage I didn’t know what to think and it was a matter of just, I don’t know, you sort of just have enough and I said ‘Yes, it’s my mother. We’ve got to go’.
The appellant said he was about four feet from the body at the time of the viewing. He said the face of the body was swollen and he could not see the eyes.
Ms Caddy gave the following description of the procedure:
QDid you go into a viewing room?
AYes, we did.
QWhat did you see there?
AA curtained area. The room was small. It was a curtained area, the curtains were drawn back and I saw a body heavily shrouded, it was some distance away from the window, it wasn’t very brightly lit, heavily shrouded. All we saw was a face from above the eyebrows to just on the chin line laying on a barouche, and that was all the – all that I saw. The body was shrouded totally – totally shrouded.
QBy that you mean covered with some material?
ACovered with pink sheeting.
QHow long did you look at the face of the body?
AOnly a few minutes.
QDid you recognise the face?
AI thought it was my mother. I was convinced it was my mother. She – although it was bloated and discoloured, swollen, I was convinced it was my mother.
QWere you able to see the eyes?
ANo, the eyes were closed.
. . . . . .
QDid you have any conversation with your brother about the body you’d seen?
AYes, I said, ‘That’s mum’.
QDid your brother say anything to you?
AHe said that he couldn’t be sure, he thought it was but he couldn’t be sure.
And in cross-examination:
QAt that time, that is when you were in the foyer after viewing the body, did you say to the police officer that the body you saw was the body of your mother?
AYes, I would have said that.
QDo you recall saying that to the police officer?
AYes, yes, I do.
QDo you recall your brother confirming that the body that he saw was the body of your mother?
AHe did confirm, yes.
QConfirmed that to the police officer?
AYes.
Ms Marton, the stepdaughter of Ms Fetishinski, went to the Centre on the same day. She described the procedure in examination-in-chief:
AWe went into the foyer area and then we were met by two police officers, taken through a door which was to the left of the lifts and we were sat down and they described to us what we were going to see. They said that ‘Your father will be presented this way and your mother will look like this’. I think they –
QJust pause there, was that before you had seen the bodies?
AYes.
QI know this is difficult for you to speak about, but can you recall what was said about the way that your father’s body would be presented?
AThey referred to both of them as saying that they have been pretty beaten up and that my father’s face was swollen and that he would be covered with a sheet.
QDid they say anything about the female body?
AYes, they –
QIs it the case that they said it was your stepmother?
AYes, they said that ‘Your mother’s face has had some severe injuries and half of it will be covered with a sheet’.
QDid you then view two bodies?
AYes, simultaneously.
QCan you describe the process whereby you viewed those bodies?
ASay I come in into a little room and if I turned to my right there was a window with a curtain which could be pulled open – I can’t remember who pulled the curtain open – Lioudmila, who now I know was not Lioudmila, was closest to the window – if I was looking this way her head was here (INDICATES) so to my left and then my father was further away from the window next to her.
QWere the bodies on trolleys?
AI think so – it was hard to tell from –
QIf they were on trolleys did they appear to be close together or touching?
AYes.
QDo you recall now if you looked at one face first?
AYes.
QWhich one was that?
AMy stepmother’s.
QWhat could you see?
AI saw a pink sheet covering half of her face like so (INDICATES).
QAre you indicating that the sheet was covering from the –
AHer whole –
QTop of head down past the nose?
AYes.
QAnd what part of the face was exposed?
AMy right-hand side, so.
HIS HONOUR
QSorry, what was the answer?
AThe right-hand side of the face was exposed, so from my right, her left.
QSo in effect the female body was to your left, is that right. Let me start again. There was a glass window.
AYes.
QWere you facing the window?
AYes.
QWhen you looked at the female body did you turn to your left or to your right or did you look straight ahead?
AI looked straight on.
QLooked straight on?
AYes.
QIn fact the head of that female person was roughly directly in front of you?
AYes.
QThere was a trolley next to the trolley on which the female was situated, is that right?
AYes.
QThe head of the person on the outer trolley, was that roughly in line with the head of the female person?
AYes.
QLooking at the body on the trolley nearest to you showing a female person, could you identify that person as a female person?
AAt the time, yes, yes.
QHalf of the face was covered and it was the right-hand side of the face that not was not covered?
AYes.

In cross-examination the witness said that when she left the Centre she was satisfied that she had seen her stepmother’s body.
After the identifications the appellant, Ms Caddy and Ms Marton gave signed statements to the police in which they stated that they had identified the respective bodies.
The appellant said that, some days later, the police offered him a second opportunity to view the body. He said he did not accept the offer as he had been through enough already.
Ms Caddy said in evidence she thought a second identification was unnecessary. She agreed in cross-examination that she thought a further identification was unnecessary because she had no doubt about the earlier identification. She also said that her brother, who was quite sick, had arrived from Brisbane and “it was just not possible”.
Ms Marton agreed to attend a second identification procedure in relation to the female body she had previously identified. This took place at a funeral parlour. She gave the following evidence-in-chief:
AAnd as I entered the first thing that I did was to ask – there were two police officers – whether or not they had checked the teeth, that is the dental records, and they said that they had. Then we were escorted by someone that was in the funeral home, funeral director, into a smallish room which was dimly lit, they were apologetic because they had not had time to prepare her body properly. We walked into the room and she was laid out on a tray or a trolley covered with a white sheet and the same side of the face was covered as was covered when we went into Divett Place or the forensic sciences and that confirmed to me that it was the same person that I had seen at Divett Place.
QWhat was it that confirmed that to you?
AThat the injuries were on the same side and that when I saw what I believed to be my stepmother at Divett Place, I believed it to be her, I had no doubt in my mind.
HIS HONOUR
QThis was at the funeral parlour?
ANo, this was at the initial identification.
QI see, so you are referring to the occasion when you were at Divett Place?
AYes.
QAnd you thought that the female body that you saw was your mother-in-law?
AMy stepmother, yes.
. . . . . .
QYou said I think the funeral director led you somewhere?
AHe led us into a room.
QWhat was the lighting in that room?
AIt was very dim.
QHow long did you stay at Peter Elberg Funerals that day?
AMaybe five minutes.
QAgain, I know this is very difficult to talk about, but you talk about the right side of the face, as I understand it, having in a way I think the word you used was something like ‘Fallen in’. Was that something that you had been told might be the appearance of the face?
AWe were told that they would have autopsies and that would effect the way that they appeared.
QWhen were you told that?
AI think when we were making funeral arrangements.
Counsel for the appellant did not formulate a duty of care which would apply specifically to this stage of the police investigation. Reliance was placed on a continuing duty of care which was said to arise at the time of the investigation at the scene.
I have concluded that a duty of care did not exist at this earlier point in time. However, in the light of the particulars of negligence, it is appropriate to consider whether a duty of care was owed to the appellant in relation to the formal identification procedures which followed the investigation at the scene. This stage of the police officers’ involvement in the case was an extension of their investigational role which commenced when they conducted their investigations at the scene of the accident. It was important for a number of purposes that the bodies be identified. However, this part of the investigation had particular relevance for the Coroner.
As in the case of the investigation at the scene of the accident, there would seem to be important considerations of public policy rendering it inappropriate to impose a duty of care of the type which is claimed in this case. In the cases of Hill and Brooks the House of Lords drew attention to the detrimental effects on law enforcement of imposing legal duties in the context of those cases. Their Lordships stressed the effect which the imposition of such duties could have on investigational decisions including those relating to resources and whether particular lines of enquiry should be followed. Although these decisions were concerned with investigations into criminal matters, there would seem to be no reason why the reasoning should not apply also to investigations of traffic accidents. These investigations might also lead to the laying of criminal charges but, more importantly, they are investigations which are in the interests of the community.
In Sullivan v Moody the court drew attention to the inconsistency between the investigatory and reporting role of authorities responsible for reporting child abuse and the suggested duty of care owed to persons suspected of such abuse. Although inconsistency of that kind does not arise during this second stage of the police investigations in the present case, issues of policy and discretion, along with decisions as to priorities in the deployment of resources would arise. The claim that the police officers in this case should have sought assistance from dental experts is an example. The assessment of whether the identifications by relatives were reliable for the purpose of information to be passed on to the Coroner is another aspect of the police investigation which, for reasons of public policy, should not be influenced by the prospect of civil proceedings for negligence.
In my view, it would be inappropriate to impose on the police officers a duty to take reasonable care to avoid psychiatric injury to the relatives of the deceased when carrying out their duties during this phase of the investigations. But, even if a duty of care did exist in relation to this aspect of the investigation, I am satisfied that there was not any negligent conduct on the part of the police officers.
The features of the bodies were not disfigured to the extent that identification was worthless and the circumstances of the identifications were not such as to render it inappropriate for reliance to be placed upon them.
It is true that the appellant expressed some doubt at first as to his identification, but after further consideration he was prepared to identify the body he was shown as being that of his mother. His sister was confident in her identification. Furthermore, it was of particular relevance that Ms Marton positively identified the other body which she was shown on two occasions. The independent identifications had the tendency to corroborate one another. It is not reasonable to conclude that the police officers should have conducted further investigations on the basis that the various identifications could have been mistaken.
Mr Britton, for the appellant, has argued that, before the bodies were released, the appellant should have been shown a photograph of his mother’s face taken shortly after the accident. The photograph was eventually shown to the appellant and, according to the psychiatric evidence, this appears to have been a particularly traumatic incident which contributed to his mental stress. I would reject the suggestion that the police should have shown him the photograph earlier.
After reading the evidence, I have also reached the conclusion that the viewing conditions were appropriate. The relatives were positioned a short distance from the bodies and the lighting conditions were adequate.
Criticism has been made of the fact that the police officer who conducted the procedures stated that the appellant and his sister would be “seeing your mother”. A similar comment was made to Ms Marton. This comment was made in order to explain the procedure which would be followed. Subsequently, the relatives were asked if they could identify the respective bodies. In my view the comment was not such as to contribute to the mistaken identifications.
There are two other matters which require comment. I have said that the master decided to separate the issues in the case and deal only with the issue of liability.
At the hearing before the master, Professor McFarlane was called to give evidence for the plaintiff and Dr Cotton gave evidence for the defendant. Both had examined the plaintiff and they expressed opinions about his psychiatric condition in the course of their evidence.
The master referred to this aspect at the conclusion of his judgment at [83]:
The only remaining matter relating to liability is the requirement, with “nervous shock” cases, that the alleged negligence caused a recognisable psychiatric or psychological illness: Tame v New South Wales (supra). This involves an analysis of the evidence of the respective plaintiffs and the medical evidence adduced by both sides. As such, the task relating to the determination of liability overlaps with the approach to be taken to the quantum of damages, particularly on the question of causation. Because of the overlap I have given consideration as to whether or not I should deal with this aspect of the matter. If I were reversed on appeal on the question of liability, the action would have to proceed to an assessment of damages. The actions would potentially be remitted to me for assessment of damages. However, because I will not be available to deal with the assessment of damages, the matter would have to be remitted to another judge. Given that findings as to causation, both as to matters of liability and quantum, may depend on assessment of the reliability and credibility of witnesses, it would be undesirable for me to embark upon that task on the remaining question of liability if I am not to be available to hear the assessment of damages when similar assessments of witnesses may have to be made. For this reason, I shall not deal with the question of whether or not psychiatric injury has been caused to either plaintiff.
The course adopted by the master has created a somewhat awkward situation which has left an important aspect of liability undecided. In my view, it is arguable that the psychiatric evidence which was given does not establish that the conduct of the police complained of resulted in a recognised psychiatric injury. However, this issue was not argued on appeal and, because of the view I have taken in relation to other aspects of liability, it is unnecessary for me to pursue the issue.
Finally, there was criticism of findings made by the master when dealing with causation. He said:
In these cases, what caused the loss constituted by the alleged onset of a psychological illness was the discovery that the bodies had been wrongfully identified. This is in the context where there had been two separate incorrect identifications, the first by the police and the second by the plaintiffs themselves. This means that after the mistake was made by the police, the plaintiffs had the opportunity, at the time of their identification of the respective bodies, to correct the (then unknown) mistake.
It seems to me that the mistake on the part of the police officers induced a belief in the plaintiffs prior to their identification of the bodies, that they were going to identify, in the case of Ms Marton, her step-mother, and in the case of Mr Halech, his mother. When the plaintiffs respectively viewed the bodies, their belief was confirmed by their own observations. In my view, applying the approach to causation formulated by the High Court in March v E and M H Stramare Pty Ltd, the cause of the plaintiffs’ respective continuing belief as to the identities of the bodies was their own identification. The subsequent revelation that the identification was wrong goes back to the plaintiffs’ identification not to that of the police.
If the plaintiffs are to succeed, they must demonstrate that the negligent conduct of the police was the effective cause of their misidentification of the bodies. As I understand their respective cases, they have not sought to do this. In any event, even if that was the basis of their case, they cannot succeed because their respective misidentification of the bodies was caused by their own failure to recognise, in the case of Ms Marton, her step-mother, and in the case of Mr Halech, his mother. This is in the context where, after the first identification, they were each given the opportunity to go through the identification process again. As I have previously found, Mr Halech declined to repeat the process and Ms Marton confirmed her original identification.
In those circumstances, I do not think it can be said that there is a causal relationship between mistakes made by the police officers and the alleged sustaining of injury by the respective plaintiffs. This constitutes an additional reason for dismissing the plaintiffs’ respective claims.
The appellant submitted that these findings were incorrect and that the errors made by the police at the scene were the effective cause of the relevant damage. In my view the reasoning of the master supports the conclusion which he arrived at on this issue.
I would dismiss the appeal.
DEBELLE J. Even if the police owed a duty of care to the appellant and acted in breach of that duty, the appellant failed to establish that the breach of that duty caused the loss of which he complains. The cause of that loss was the wrongful identification made by the appellant and his sister.
Assuming the police owed a duty of care to the appellant, that duty required the police to present the bodies of Ms Halech and Ms Fetishinski for identification. The police discharged that duty. They were entitled to assume that the relatives of each of the deceased women would correctly identify them. It was not contended that anything was said or done when the bodies were presented for identification which caused the relatives who made the identification to be mistaken as to identity. The fact that police officers at the scene had wrongly labelled the bodies did not in any respect affect the identification by the appellant and his sister. In other words, the wrongful identification by the appellant and his sister was a cause which intervened between any breach of duty by the police and the harm suffered by the appellant. It broke the chain of causation between any negligence of police officers at the scene and the appellant’s loss. In short, even if it is assumed that the police had acted negligently, it was the wrongful identification by the appellant and his sister which was the cause of his loss, not the negligence of the police.
The trial judge found that there was no negligence on the part of the police when the bodies were presented for identification. The finding of the trial judge that there was no causal relationship between the errors made by the police at the scene and the appellant’s loss was, therefore, entirely correct.
In addition, some days later, the appellant was offered a second opportunity to identify the body, but he did not act upon it, notwithstanding that shortly after the identification the appellant had expressed some doubts to his sister. The wrongful identification was, therefore, caused by the appellant and his sister and, to some extent, the wrongful identification by Ms Marton contributed to it.
This is a most unfortunate case but it does not mean that there is any liability on the part of the police or the State of South Australia.
For these reasons, I would dismiss the appeal.
BESANKO J Mr Anatoly Halech brought an action for damages based on the tort of negligence in the District Court of South Australia against the State of South Australia. It was said that the State was vicariously liable for the negligence of certain police officers in February 1998. The plaintiff’s action was tried by a judge of the District Court together with a similar action that is not the subject of an appeal to this Court. The trial proceeded on the question of liability only. The plaintiff was unsuccessful and an order was made that there be judgment for the defendant. The plaintiff appeals against that order. I will continue to refer to the parties as the plaintiff and the defendant, respectively.
The background facts
The facts are set out in the reasons for judgment of Duggan J and I will repeat them only to the extent necessary to explain my reasons.
On Friday 20 February 1998 the plaintiff’s mother, Mrs Anastasia Halech, was killed in a motor vehicle accident in Glenburnie in the State of South Australia. She was a passenger in the rear of a vehicle that collided with a large semi-trailer. There was another woman in the rear of the vehicle, Mrs Lioudmila Fetishinski, and there were two men in the front of the vehicle. All the occupants of the vehicle were killed.
A number of police officers attended at the scene of the accident over a substantial period of time. It appears that, by reason of action taken by a police officer who attended at the scene, the bodies or body bags of the female deceased were incorrectly marked and the body of Mrs Halech was identified as that of Mrs Fetishinski, and the body of Mrs Fetishinski was identified as that of Mrs Halech.
The relatives of each deceased were asked to identify the bodies. The identification took place the day after the accident, on Saturday 21 February 1998. The plaintiff and his sister, Valentyna Caddy, attended the Forensic Science Centre at Divett Place, Adelaide, to identify what they thought was the body of their mother. In fact, they were shown the body of Mrs Fetishinski, which they incorrectly identified as that of their mother. On the same day, Mrs Tania Marton, the stepdaughter of Mrs Fetishinski, was shown the body of Mrs Halech, which she incorrectly identified as that of her stepmother.
There was some confusion about the ownership of the personal effects of the two women and it is unclear whether it was for this reason, or because the plaintiff had initially expressed some doubts about whether the body he saw on 21 February 1998 was that of his mother, that the plaintiff, his sister and Mrs Marton were asked by the police to attend a second identification. The plaintiff and his sister declined, but Mrs Marton agreed, and she again incorrectly identified the body of Mrs Halech as that of her stepmother.
About a week later, the respective funerals of Mrs Halech and Mrs Fetishinski were held. The body of Mrs Fetishinski (incorrectly thought to be that of Mrs Halech) was buried near Mrs Halech’s late husband and the body of Mrs Halech (incorrectly thought to be that of Mrs Fetishinski) was cremated and the ashes taken to Russia, where some of Mrs Fetishinski’s family lived.
It appears that about six months later, Mrs Marton was reading an autopsy report in relation to the person she thought was her stepmother. The possibility of misidentification was raised. The plaintiff, his sister and Mrs Marton attended at the office of the Coroner and were shown some photographs. One photograph shown to the plaintiff and his sister was a photograph of Mrs Halech. Her face had been injured in the accident. Nevertheless, the plaintiff and his sister were able to identify their mother and Mrs Marton identified her stepmother. The fact of misidentification of the two bodies was established.
Mr Halech travelled to Russia to collect the ashes of his mother, and the body of Mrs Fetishinski was exhumed.
The plaintiff claimed two types of loss from the defendant. First, he claimed economic loss, being the costs of travel to and from Russia in order to recover the ashes, and the costs associated with the burial of the ashes of Mrs Halech. Secondly, he claimed loss for nervous shock, or for the consequences of nervous shock. Under this head, he claimed that, as a result of the defendant’s negligence, he suffered a major depressive disorder (the onset of which occurred between about May 1998 and November 1998), economic loss flowing from his inability to continue to operate his business, medical expenses for the treatment of the psychological injury, and pain and suffering.
The important findings of fact made by the judge

I do not need to summarise the judge’s findings of fact in any great detail.
As is not uncommon in cases of this nature, there are no precise allegations in the plaintiff’s statement of claim of the duty of care said to have been owed by the defendant to the plaintiff, or the time or times at which it is said to have arisen. It is necessary to have regard to the particulars of breach and to see what can be inferred from those particulars. I think the points in time at which it is said that a duty was owed are first, at the scene of the accident, secondly, at the time of the identification at the Forensic Science Centre and thirdly, by reason of various events said to have raised doubts about identification, in the period after those doubts arose.
The judge considered whether the defendant owed the plaintiff a duty of care and, after a consideration of the authorities, decided that it did not. The essence of his reasoning is contained in the following two paragraphs:
The cases referred to state that a duty of care will not arise if a conflict is thereby created between the person’s statutory or public duty and any duty that is said to be owed to members of the public. In this case, the police officers who investigated the accident had a clear public and statutory duty to do so with a view to providing a report to the Coroner and deciding what charges might be considered. Such investigations should not be inhibited by the possibility that civil proceedings might be brought against the State if mistakes are made by police officers.
In my opinion, the authorities referred to above, when applied to the plaintiffs’ respective claims, lead to the conclusion that no duty of care, as contended for by the plaintiffs, arises. To hold otherwise would create a real possibility of a conflict of duties on the part of police officers when investigating motor vehicle accidents. In arriving at this conclusion, I have considered the question of a duty arising in respect of the public in general and a duty arising in respect of a limited class of persons. The latter does not arise for the reasons advanced when discussing the case of Swan. The former does not arise because such a wide-ranging duty would undermine or inhibit the primary responsibilities of police officers to investigate motor vehicle collisions.
In case he was wrong, the judge went on to consider each of the particulars of breach alleged by the plaintiff. As to the alleged breach at the scene of the accident, the judge found that, although he could not say precisely how it had happened, the police officers had been “negligent” to attribute names to the bodies of the female deceased in that there was insufficient information for them to do so.
Although he discusses the facts surrounding the identification procedure at the Forensic Science Centre in the context of contributory negligence and causation, it seems that the judge rejected any suggestion of negligence on the part of the police at or in connection with that identification procedure. As far as a duty possibly arising by reason of doubts about the correctness of the identification, and in this respect the judge referred to the doubts expressed by the plaintiff at the time of the identification and the uncertainty about the ownership of personal effects, the judge said that any such duty was satisfied by the offer for a second identification, which was taken up by Mrs Marton, but not by the plaintiff or his sister.
The judge then considered the issue of causation. Specifically, he considered whether the misidentification of the bodies was caused by the negligent conduct of the police at the scene, or by the plaintiff and his sister’s own failure to recognise their mother. He found that it was the latter, and that there was no causal relationship between the mistakes made by the police officers at the scene and the alleged injury sustained by the plaintiff.
The judge recognised (correctly) that the plaintiff could only recover damages for nervous shock if he suffered a “recognised psychiatric illness”. This is a limit on the right at common law to recover damages for nervous shock. I pause at this point to say that it is not necessary for me to consider in this case if there is any difference between the expression “recognised psychiatric illness” and the more commonly used expression “recognisable psychiatric illness” (see P Hanaford, “Psychiatric injury: The new era” (2003) 11 Tort Law Review 13). For convenience, when referring to this limitation on the right to recover damages, I will use the expression “recognisable psychiatric illness”, which, it must be said, has the better common law pedigree.
At the trial, the plaintiff called a psychiatrist, Professor Andrew McFarlane, who said that the plaintiff suffers from a “pathological grief reaction” and a “major depressive disorder” that fluctuates in intensity. Professor McFarlane observed that a “pathological grief reaction” is not a recognised disorder in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th ed, Text Revision, 2000) (“DSM-IV-TR”) (but see Vernon v Bosley (No 1) [1997] 1 All ER 577). However, Professor McFarlane noted that the DSM-IV-TR does outline the diagnostic criteria for a “major depressive disorder” (see DSM-IV-TR (supra), pp 375-376).
The defendant called a psychiatrist, Dr Alan Cotton, who said that, at most, the plaintiff has at times suffered from symptoms of a transitory state of an adjustment disorder.
It seems from the cross-examination of Professor McFarlane at the trial that the defendant challenged another aspect of the plaintiff’s case on causation. A number of possible causes of his condition, other than the misidentification of his mother’s body and its effects, were put to Professor McFarlane, including the death of his mother, a suggestion that he felt guilty about his mother’s death because he had encouraged her to travel, an argument leading to his estrangement with his sister, and other matters which it is not necessary for me to detail.
As I understand the judge’s reasoning, he did not decide if the plaintiff suffered from a “recognisable psychiatric illness” because that assessment would involve issues of credit, and (assuming his decision was overturned on appeal) he would not be in a position to hear the assessment of damages, which was likely to involve similar issues of credit.
I mention these matters because even if the judge’s decision that there was no duty of care and that causation had not been established was overturned, liability would only be made out if the plaintiff established that he suffered from a “recognisable psychiatric illness”, and that the misidentification of the bodies was a legally effective cause of that illness.
I turn now to consider the challenge to the judge’s conclusion that the police officers did not owe a duty of care to the plaintiff.
Inconsistent or incompatible duties
If the duties which the police officers owed to the public or to others were inconsistent or incompatible with a duty of care owed to the plaintiff, then no duty of care would be owed to the plaintiff either in respect of those damages characterised as economic loss or those damages characterised as nervous shock.
This restriction on the imposition of a duty of care was considered by the High Court in Sullivan v Moody (2001) 207 CLR 562. The case raised a question as to whether doctors examining young children for signs of sexual abuse owed a duty of care, in carrying out the examination, to the possible abuser of the child. The doctor was required to report a suspicion on reasonable grounds and there was a section in the relevant legislation which provided that the interests of the child was the paramount consideration. The Court said the mere fact that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty is owed to the plaintiff. However, it ordinarily will if it would give rise to inconsistent obligations, or would impose upon defendants conflicting claims or obligations. The Court said (at 582 [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.
The inconsistency or conflict may come about because the effective discharge of the undisputed responsibility would be impaired by the imposition of the alleged duty. In Sullivan v Moody (supra), the Court said (at 582 [62]):
It would be inconsistent with the proper and effective discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who were suspected of being the sources of that harm. The duty for which the appellants contend cannot be reconciled satisfactorily, either with the nature of the functions being exercised by the respondents, or with their statutory obligation to treat the interests of the children as paramount. As to the former, the functions of examination, and reporting, require, for their effective discharge, an investigation into the facts without apprehension as to possible adverse consequences for people in the position of the appellants or legal liability to such persons. As to the latter, the interests of the children, and those suspected of causing their harm, are diverse, and irreconcilable. That they are irreconcilable is evident when regard is had to the case in which examination of a child alleged to be a victim of abuse does not allow the examiner to form a definite opinion about whether the child has been abused, only a suspicion that it may have happened. The interests of the child, in such a case, would favour reporting that the suspicion of abuse has not been dispelled; the interests of a person suspected of the abuse would be to the opposite effect.
This restriction was also considered by the High Court in Tame v New South Wales (2002) 211 CLR 317 (“Tame”). In Tame, the question was whether a police officer who incorrectly recorded Mrs Tame’s blood alcohol reading at the time of an accident in a traffic accident report owed a duty of care to her in relation to a psychotic depressive illness which she developed upon learning of the error.
Gleeson CJ held that the policeman who completed the traffic accident report did not owe a duty of care to Mrs Tame for two reasons. The first reason related to the nature of the activity being carried out by the policeman. As to this matter his Honour said (at 335 [25]-[27]) (footnotes omitted):
In the performance of his duties, Acting Sergeant Beardsley was completing an official report into the circumstances of a motor traffic accident. In the ordinary course, the report would be used in making a decision as to whether charges should be laid against anybody involved in the accident. The two people involved were Mr Lavender and Mrs Tame. Copies of the report would also be available, on request, and for a fee, to third parties, such as litigants, their solicitors and insurers. Primarily, however, this was an official police report of the incident, and of the result of police observations, inquiries and tests.
The primary duty of a police officer filling out such a report is to make available to his or her superiors, honestly and frankly, the results of the observations, inquiries and tests that were made. It would be inconsistent with such a duty to require the police officer to take care to protect from emotional disturbance and possible psychiatric illness a person whose conduct was the subject of investigation and report.
Not only was there no such relationship between Acting Sergeant Beardsley and Mrs Tame as would make it reasonable to require that he should act in contemplation of the danger of psychiatric injury to her; the relationship between them was inconsistent with such a requirement.
In the context of this reason, Gleeson CJ also referred (at 335 [28]) to the intersection with the law of defamation and the need to preserve legal coherence, a point which does not arise here.
Hayne J said (at [298]-[299], referring to Sullivan v Moody (supra)):
Police officers investigating possible contravention of the law do not owe a common law duty to take reasonable care to prevent psychiatric injury to those whose conduct they are investigating. Their duties lie elsewhere and to find a duty of care to those whom they investigate would conflict with those other duties.
Mrs Tame committed no offence but, having been the driver of a motor car involved in an accident, police were doing no more than their duty in investigating whether there had been a breach of the law. In undertaking that task they were bound by numerous obligations and restraints, both statutory and common law. To impose upon them a further duty to take reasonable care to avoid psychiatric injury to a person whose conduct was being investigated would constrain their proper performance of those other duties.
None of the other judges found it necessary to decide the case by reference to the inconsistency or incompatibility principle, but McHugh J, in his judgment, and Gummow and Kirby JJ, in their joint judgment, made a number of relevant observations.
McHugh J said (at 362 [126]):
It is unnecessary to decide in this case whether the administrative obligations of Constable Morgan and Acting Sergeant Beardsley negated the existence of a duty of care. My strong inclination is that police officers recording material relating to the administration of criminal justice have no duty to be careful to those affected by the material recorded. They should not have the burden of determining whether they have a duty of care in respect of every recording they make in the course of their duties. A blanket rule of no duty of care seems more in accord with the efficient administration of criminal justice than a case by case examination of each recording. If material is recorded honestly but carelessly, no action for defamation will lie, and I see no reason why the law of negligence should alter that balance.
Gummow and Kirby JJ said (at 396 [231]):
It is unlikely that an investigating police officer owes a duty of care to a person whose conduct is under investigation. Such a duty would appear to be inconsistent with the police officer's duty, ultimately based in the statutory framework and anterior common law by which the relevant police service is established and maintained, fully to investigate the conduct in question. Counsel for Mrs Tame submitted that Mrs Tame's conduct was not under investigation at the time the Traffic Collision Report was completed. It was said that Mrs Tame was an accident victim in respect of whom there was no suspicion of any criminal offence. However, it is unnecessary to pursue that question, because, for the reasons that follow, Mrs Tame's action fails at the outset.
(See also Callinan J (at 431 [336]).
Clearly, there are degrees of inconsistency or incompatibility, some of a direct nature and others less direct. There is the notion, referred to by Hayne J in [107] above, of constraining the proper performance of undisputed duties, or, as the defendant put it in its written submission, the conflict may arise at an anterior stage, in that the imposition of a duty owed to one individual would require an officer to devote more time and care on discharging that duty to the disadvantage of his other responsibilities and the interests of others.
In [37] above, Duggan J sets out the duties of police officers at the scene of a serious traffic accident and, in my opinion, 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.
The duties of police officers at a later time, namely, at the identification at the Forensic Science Centre and thereafter, were not fully explored in argument. It is unnecessary for me to decide the question because I agree with the judge that, even assuming a duty of care did exist, there was no breach at those times.
The claim for nervous shock
There is a second reason why the plaintiff’s claim, insofar as it is a claim for nervous shock, must fail.
The common law principles relating to a claim for nervous shock unaccompanied by physical injury were reviewed by the High Court in Tame. This case is governed by those principles. The statutory provisions in the Civil Liability Act 1936 (ss 33 and 53) do not apply because the alleged injury pre-dates the operation of these sections.
In Tame, all the Justices of the Court said that there could be no liability for causing feelings of emotional distress such as alarm, fear, anxiety, annoyance or despondency. As I have said, a plaintiff may only recover damages for a “recognisable psychiatric illness” (Gleeson CJ at 329 [7]; Gaudron J at 338-329 [44]; Gummow and Kirby JJ at 382 [194]). In this context, I do not think there is any relevance between an “illness” or “injury”.
The Court referred to various rules which had been developed by the common law to limit recovery for nervous shock. Gleeson CJ referred to the rules in the context of whether they were “definitive tests of liability”, whereas, in their joint judgment, Gummow and Kirby JJ referred to the rules as “control mechanisms”. The definitive tests of liability or control mechanisms which have been suggested from time to time are:
1.The requirement that liability for the psychiatric harm be assessed by reference to a hypothetical person of “normal fortitude” (the “normal fortitude rule”).
2.The requirement that the psychiatric harm be caused by a “sudden shock” (“the sudden shock rule”).
3.The requirement that a plaintiff “directly perceive” a distressing phenomenon or its “immediate aftermath” (“the direct perception rule”).
All the Justices of the Court, except for Callinan J, rejected, as definitive tests of liability or control mechanisms, the sudden shock rule and the direct perception rule.
By a majority of 4:3 (Gleeson CJ, Gaudron, Gummow and Kirby JJ; McHugh, Hayne and Callinan JJ contra), the Court rejected the normal fortitude rule as a definitive test of liability or control mechanism. The same majority of the Court said that, in addition to establishing that in fact the harm suffered was a “recognisable psychiatric illness”, the plaintiff, in order to establish a duty of care, must show that it was reasonably foreseeable that conduct of the defendant might result in the plaintiff sustaining a “recognisable psychiatric illness”.
Gleeson CJ put the matter in this way (at 335-336 [29]):
In any event, the Court of Appeal was right to conclude that the psychiatric injury suffered by Mrs Tame, to which the error of Acting Sergeant Beardsley made a material contribution, was not reasonably foreseeable. This conclusion does not depend upon the application, as an inflexible test of liability, of a standard of normal fortitude; but the particular susceptibility of Mrs Tame to psychiatric illness is a factor to be taken into account. As was explained above, we are not concerned only, or even primarily, with scientific predictability. If the requirement of foreseeability were truly and generally as undemanding as is sometimes claimed, then it might take Mrs Tame some distance to say that, this result having occurred, any psychiatrist would say that it would have been foreseen. But that is not the question. The question concerns the reasonableness of requiring Acting Sergeant Beardsley to have this possibility in contemplation when he completed the report. He could not reasonably have been expected to foresee that his mistake carried a risk of harm to Mrs Tame of the kind that resulted. It was not reasonable to require him to have her mental health in contemplation when he recorded the results of the blood tests.

Gummow and Kirby JJ formulated the test in terms of the reasonable foreseeability of the risk of the plaintiff sustaining a “recognisable psychiatric illness” and they discussed the significance to that question of whether the plaintiff is of normal fortitude. They said (at 385 [201]) (footnotes omitted):
However, the concept of "normal fortitude" should not distract attention from the central inquiry, which is whether, in all the circumstances, the risk of the plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful. It may be that, in some circumstances, the risk of a recognisable psychiatric illness to a person who falls outside the notion of "normal fortitude" is nonetheless not far-fetched or fanciful. If that is so, it is then for the tribunal of fact to determine what a reasonable person would do by way of response to the risk, in the manner indicated in Wyong Shire Council v Shirt. Where the plaintiff's response to the defendant's conduct is so extreme or idiosyncratic as to render the risk of that response far-fetched or fanciful, the law does not require the defendant to guard against it. Thus, as Pound observed in 1915, where a putative tortfeasor "so far as he could reasonably foresee, does nothing that would work an injury, the individual interest of the unduly sensitive or abnormally nervous must give way".
Importantly, their Honours said that the question was not purely factual and that expert evidence could not be decisive or usurp the judgment that is required of the decision-maker. Their Honours said that it is not necessary for the particular type of disorder to be reasonably foreseeable; it is sufficient that the class of injury, psychiatric illness, be foreseeable as a possible consequence of the defendant’s conduct (at 386 [203], referring to Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 402 per Windeyer J). Their Honours rejected the submission that the policeman owed Mrs Tame a duty of care on the basis that a “recognisable psychiatric illness” was reasonably foreseeable. They said (at 396-397 [232]-[234]) (footnotes omitted):
No case in negligence can be made out against the respondent in respect of the conduct of Acting Sergeant Beardsley. This is because a reasonable person in Acting Sergeant Beardsley's position would not have foreseen that his conduct in carelessly completing the Traffic Collision Report involved a risk of causing a recognisable psychiatric illness to the appellant. It may be conceded that it was reasonably foreseeable that such carelessness may cause surprise, distress or anger, particularly as the report was likely to be distributed to the appellant's insurer and could be accessed, for a fee, by members of the public. However, it also was reasonably foreseeable (a) that an erroneous recording of the appellant's blood alcohol level, once detected, would promptly be rectified, given the obvious nature of an error which attributed to both drivers precisely the same blood alcohol content and (b) that, if pressed, the Police Service would offer a formal apology in respect of any such error, as subsequently occurred here.
But it was not reasonably foreseeable that a person in the position of Mrs Tame would sustain a recognisable psychiatric illness from a clerical error which she was told was a mistake that had been rectified and in respect of which she received a formal apology. The appellant's reaction was extreme and idiosyncratic. The risk of such a reaction was far-fetched or fanciful and, in the manner indicated in Wyong Shire Council v Shirt, was not one which the law of negligence required a reasonable person to avoid.
Counsel for Mrs Tame emphasised the evidence put by psychiatrists at trial that a person of normal fortitude could suffer psychiatric injury on being told of the error on the report. In particular, it was said that a person in a delusional state of mind would not be mollified by explicit confirmation that the blood alcohol reading was a mistake that had been rectified. However, as indicated earlier in these reasons, expert evidence about the foreseeability of a risk of psychiatric injury is not decisive. The question of reasonable foreseeability involves an assessment respecting the foresight of a reasonable person in the defendant's position; that foresight may differ from the foresight of qualified psychiatrists. The judgment belongs, ultimately, to a court, not to an expert witness. In making that judgment, a court will draw upon its reserves of common sense and reasonableness.
In summary, the common law as to recovery for nervous shock is that there will only be a duty of care if a “recognisable psychiatric illness” was reasonably foreseeable. The normal fortitude, sudden shock and direct perception rules have been rejected as definitive tests of liability or control mechanisms. However, they, and in particular the normal fortitude rule, will still provide assistance in determining whether, having regard to the facts, a “recognisable psychiatric illness” was reasonably foreseeable (Gleeson CJ at 333 [18] and 335-336 [29]; Gaudron J at 343-344 [62], and Gummow and Kirby JJ at 384-385 [200]-[201] and 394 [225]). It is not necessary that the particular type of disorder be reasonably foreseeable; what must be reasonably foreseeable is a psychiatric illness as commonly understood, and not necessarily whether it is an illness referred to in the DSM-IV-TR. In addition to this requirement, the plaintiff may only recover damages for a “recognisable psychiatric illness”.
I turn now to apply these principles to the facts of this case. Did the police officer at the scene of the traffic accident, in considering whether to attempt an identification of the female deceased, owe a duty of care to the plaintiff as a relative of one of the deceased? In turn, the question is whether it was reasonably foreseeable that a lack of care on the police officer’s part might cause a “recognisable psychiatric illness” to the plaintiff. A “recognisable psychiatric illness” might not be reasonably foreseeable, either because it would be considered a gross overreaction to the defendant’s conduct, or because it would be considered so unlikely that the defendant’s conduct would trigger a train of events resulting in such an illness. This case falls into the latter category. The identification by the police officer at the accident scene was provisional and it would have been understood that the decisive identification would be that undertaken by those who knew the deceased best; namely, their family and relatives.
In those circumstances, it was not reasonably foreseeable that the misidentification at the scene might result in a “recognisable psychiatric illness” and the police officers did not owe a duty of care to the plaintiff. It is not necessary for me to consider if it was reasonably foreseeable at later times that conduct by the police officers might result in a “recognisable psychiatric illness” because, as I have said, I agree with the judge that, even assuming a duty of care did exist, there was no breach at those times. Having regard to these conclusions, it is also not necessary to address the judge’s findings in relation to causation or the unresolved issue of whether the plaintiff in fact suffered a “recognisable psychiatric illness”.
Conclusion
In my opinion, the appeal should be dismissed.