Marton v The State of SA and Halech v The State of SA No. DCCIV-01-215, DCCIV-01-216

MARTON v THE STATE OF SOUTH AUSTRALIA
HALECH v THE STATE OF SOUTH AUSTRALIA
[2004] SADC 78
Judge Burley
Civil

In this matter two actions have been heard together because they each raise the same questions relating to liability. An order was made prior to trial that the two actions proceed together on the question of liability only.
The plaintiff in each action claims damages for alleged negligence on the part of the South Australian Police relating to the investigation of a motor vehicle accident in which the four occupants of a car were killed when it collided with a truck. It is alleged that a police officer incorrectly wrote the respective names of the two female passengers in the rear of the vehicle on the body of one of the women and the body bag containing the body of the other woman. This mistake was not corrected when identifications were carried out by the relatives of the deceased; it was not until after the funerals and subsequent interment and cremation respectively of the two bodies that the plaintiffs became aware that, respectively, the police had attributed the wrong names to the bodies and they, the plaintiffs, had misidentified the bodies. The plaintiffs say that they suffered psychological injury when the mistake was subsequently discovered and revealed to them.
Background to the Litigation
The following narrative consists of my findings of fact, based on undisputed evidence, relating to the events leading up to the bringing of these actions. On 20 February 1998 Lioudmila Fetishinski and Anastasia Halech were passengers in the rear seat of a Magna motor vehicle which was involved in a collision. The vehicle was driven by Mr Alexander Fetishinski. Mr Constantine Szamanowski, a friend of Mrs Halech, was seated in the front passenger seat of the vehicle at the time of the collision. The collision occurred at about 12.20 pm at the intersection of Princes Highway, Vorwerk Road and Fairbanks Road, Glenburnie, via Mount Gambier. It appears that the motor vehicle driven by Mr Fetishinski pulled out on to the Princes Highway into the path of a logging truck. The front of the logging truck collided with the right-hand side of the motor vehicle with such force that the logging truck crushed the motor vehicle and ended up on top of it. All four occupants of the motor vehicle were killed instantly.
The plaintiff Tania Marton (nee Fetishinski) is the daughter of Mr Fetishinski and the step-daughter of Mrs Fetishinski. The plaintiff Anatoly Halech is the son of Mrs Halech.
The plaintiffs allege that Mrs Fetishinski and Mrs Halech were incorrectly recorded as being respectively in the left rear seat and right rear seat of the vehicle. The police are alleged to have given the name “Fetishinski” to the body of the female person seated in the left rear seat of the vehicle (Mrs Halech) and the name “Halech” to the body of the female person seated in the right rear seat of the vehicle (Mrs Fetishinski). There is no direct evidence as to how this came about.
It is common ground that the “labelling” consisted of writing, with a black texta pen, the name of the person either on a part of the body or on the body bag. This fact is corroborated by the statement in the respective final autopsy reports of each of the deceased, at the commencement of each report, that a name was written in black texta, in the case of the body thought to be Mrs Fetishinski, on the right upper arm of the body and in the case of the body thought to be Mrs Halech, on the sealed body bag. The wrong name was given to each of the female bodies. There is no direct evidence as to how this came about. It is also the case that the bodies of the four occupants were marked (on the hand) “LR” and “RR” etc to indicate their respective positions in the car.
Before dealing with the facts in more detail, it is convenient to set out the applicable legal principles.
Duty of Care
The first matter to be considered is whether or not a duty of care arose. It was submitted by Mr Stratford, counsel for the defendant, that no duty of care arose as asserted by the plaintiffs or at all. He argued that police officers are under a statutory duty to investigate, among other things, the circumstances of motor vehicle collisions with a view, in the case of the death of any person, to reporting to the Coroner and with a view to determining what, if any, criminal proceedings might be brought against those involved in the collision. In such circumstances, it was argued, the law did not impose a duty upon police officers which might conflict with their primary responsibilities. Reference was made by both counsel to a number of authorities.
In Sullivan v Moody and Others; Thompson v Connon and Others (2001) 207 CLR 562 the High Court heard two appeals together. In each action, the father of young children brought proceedings against the State of South Australia, medical practitioners and others in relation to investigations carried out as to whether or not their respective children had been sexually abused. In each instance a report was made that sexual abuse had probably taken place. In one case the father was prosecuted but a nolle prosequi was eventually entered. In the other case the marital relationship ended, custody and access proceedings were taken in the Family Court and the question of sexual abuse was resolved in the father’s favour in those proceedings.
In each instance an application was made to strike out the Statement of Claim as having disclosed no cause of action where such a defect could not be remedied by amendment. The applications were successful. The actions were dismissed by a Master and his decision was confirmed on appeal. Reliance was placed on the Full Court decision of Hillman v Black and Others (1996) 67 SASR 490.
On appeal to the High Court, the decision of the South Australian Full Court was unanimously upheld. Both the Full Court and the High Court were of the view that the statutory framework in relation to the investigation and reporting of sexual abuse of children had a bearing upon whether or not those administering the statutory scheme owed a duty of care to those who might be suspected of having offended. In particular, the statutory scheme contained a provision that the interests of the children were to be regarded as paramount. In this case, which involves the investigation of a road accident, there is no statutory equivalent.
In Sullivan and Thompson it was not disputed that it was reasonably foreseeable by the medical practitioners and others that harm of the kind suffered by the appellants would occur in consequence of negligence on the part of those involved in investigating and reporting upon the allegations. However, it was said (at 573) that “foreseeability of harm is not sufficient to give rise to a duty of care”. This was followed by Besanko J in X v State of South Australia, an unreported decision delivered on 3 October 2003.
At paragraph [29], the High Court referred to the fact that the decision in Hillman v Black was made at a time when proximity was commonly treated in Australian courts as a “broad and flexible touchstone of the circumstances in which the common law would admit the existence of a relevant duty of care to avoid reasonably foreseeable injury to another”: Jaensch v Coffey (1984) 155 CLR 549 at 584 per Deane J.
At paragraph [30] reference was made to the judgment of Matheson J in Hillman v Black. Matheson J was influenced by the decision of the House of Lords in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, as was Doyle CJ in Sullivan v Moody (Full Court [2000] SASC 340). In Bedfordshire County Council, Lord Browne-Wilkinson said (at 739) 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”.
The High Court (at para [42]) said in relation to the duty of care:
“The supposed duty of care
The argument was conducted upon the basis that it was foreseeable that harm of the kind allegedly suffered by the appellants might result from want of care on the part of those who investigated the possibility that the children had been sexually abused. But the fact that it is foreseeable, in the sense of being a real and not far-fetched possibility, that a careless act or omission on the part of one person may cause harm to another does not mean that the first person is subject to a legal liability to compensate the second by way of damages for negligence if there is such carelessness, and harm results. 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.”
At paragraph [57] reference was made to Hill v Chief Constable of West Yorkshire [1989] AC 53, a case involving the duties of police officers in a police investigation, as follows:
“[T]he House of Lords held that police officers did not owe a duty to individual members of the public who might suffer injury through their careless failure to apprehend a dangerous criminal. Lord Keith of Kinkel pointed out [at 63] that the conduct of a police investigation involves a variety of decisions on matters of policy and discretion, including decisions as to priorities in the deployment of resources. To subject those decisions to a common law duty of care, and to the kind of judicial scrutiny involved in an action in tort, was inappropriate.”
At paragraph [60] reference was made to a person being subject to a number of duties. That fact alone does not preclude the existence of a duty of care. The High Court then said (at 582):
“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.”
In Tame v New South Wales (2002) 211 CLR 317, the High Court again considered whether an investigating police officer owed a duty of care to the plaintiff. Gleeson CJ said that no duty arose, citing Sullivan v Moody (at para [24]) as did Gaudron J (at para [58]).
The decision in Tame involved alleged negligent conduct on the part of a police officer. The appellant was involved in a motor vehicle accident and as part of the investigation of the circumstances of the accident, a police officer wrongly recorded in the police report that the appellant had a blood alcohol reading above the legal limit. This mistake was immediately recognized and corrected but not before a copy of the police report had been obtained by the appellant’s insurer. It was later reported to the appellant by her solicitors that this information had been recorded in the police report and that the statement had been retracted very soon after the original inclusion of the wrong information in the report. The plaintiff suffered no loss as a result of this mistake on the part of the police officer. Although reference was made to the blood alcohol reading in the report, her insurance company paid up in full in respect of damage sustained by her. Nevertheless, the appellant developed a neurotic reaction to the fact that incorrect information had been included in the police report and she sued the State of New South Wales. She failed at first instance, before the Court of Appeal and in the High Court. The decision also dealt with the legal requirement that, in cases of alleged psychological harm such as “nervous shock” cases, the plaintiff had to establish that a recognized psychiatric illness was sustained: per Gleeson CJ at [7]; Gaudron J at [44]. I shall return to that aspect of the matter later in these reasons.
In X v State of South Australia (supra), Besanko J referred to Swan v State of South Australia (1994) 62 SASR 532, where the Full Court held that where there was specific information available to the Parole Board suggesting the possibility of harm to foreseeable persons, a duty of care may arise in respect of the persons whom the specific information indicates may be at risk. That was a case decided before the High Court’s decision in Sullivan v Moody but Besanko J was of the view that Swan was still good law (at [70]). In my view, the facts of this case are different from the facts in Swan because there was no specific information available to the investigating police officers of the type that was made known to the Parole Board in Swan. Consequently, that aspect of the decision in Swan does not assist the plaintiffs.
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.
It follows that the plaintiffs’ respective claims must be dismissed.
The Particulars of Negligence
In case I am wrong, I intend to deal with the question of whether or not the plaintiffs have established that a breach of the alleged duty of care occurred.
I will deal with the particulars of negligence in each action. I will refer to the paragraph numbers in the action brought by Mrs Marton. The particulars are contained in paragraph 14 of the Statement of Claim and broadly correspond to the allegations of negligence contained in paragraph 15 of Mr Halech’s Statement of Claim. I will only refer to the paragraphs in Mr Halech’s Statement of Claim where it is necessary to do so.
In paragraphs 14.1 and 15.1 of the respective Statements of Claim it is alleged that there was a failure on the part of the police to take due care in the labelling of the bodies, but no attempt has been made to specify the manner in which it is alleged that there was a want of care on the part of the investigating police officers. The only evidence that may be said to support this and some of the other allegations of negligence is the report compiled by a police officer, Detective Senior Sergeant M J Howells, whose report (with attached statements) is exhibit P6. It is apparent that Sergeant Howells enquired into the investigation of the motor vehicle accident carried out by various police officers. In doing so, he interviewed a number of people including the two plaintiffs, and the daughter of Mrs Halech. The report was tendered by the plaintiffs and was admitted without opposition from the defendant.
Because the report refers to information obtained by Sergeant Howells from the plaintiffs, Ms Caddy and from police officers involved in the investigation of the motor vehicle accident, and because it contains the views and opinions of Sergeant Howells, I have had to consider the evidential effect of the report (as opposed to the statements attached to it). I do not consider that the expressions of opinion and the conclusions drawn by Sergeant Howells based on what he was told by the various people that he interviewed, constitute evidence. To some degree, Sergeant Howells was given a task that is similar to the task which confronts me, namely to decide whether the police officers carrying out the investigation, or some of them, were negligent in the performance of their duties. Obviously, any conclusions arrived at by Sergeant Howells in that regard are not evidence. I must form my own opinions based on the findings of fact made by me and so I cannot rely upon fact finding and opinions set out in Sergeant Howells’ report.
Having read the report, I have no doubt that Sergeant Howells conscientiously carried out the task assigned to him, but the content of the report is of little use to me. I cannot make findings of fact based on his report because Sergeant Howells had no personal knowledge of how the investigation of the accident was carried out. All I can do is conclude that he accurately recounted in his report the complaints of the plaintiffs and others and the statements made to him by the police officers interviewed by him. None of that is admissible evidence relating to the question of what actually occurred during the course of the investigation of the motor vehicle accident up to and after the time that a name was written on one of the bodies and another name was written on the body bag which contained the other body.
In those circumstances, it is not possible for me to find, based on Sergeant Howells’ report, that there was a failure on the part of police officers to take care in the labelling of the bodies of the two female occupants of the motor car.
However, the statements of various police officers and other documents attached to Senior Sergeant Howells’ report, all of which form part of Exhibit P6, are evidence of how the investigation was conducted and what complaints were made by the respective plaintiffs. Attached to the report is an index of appendices to the report. Not all of the appendices referred to in the index were tendered with the report because, apparently, a number of appendices could not be found. Those forming part of Exhibit P6 are the appendices respectively marked D1, D2, F, G1, G2, I, J, K, L, M1, M3, M4, M5, M18, O, U and V.
Appendix D1 is the statement of Senior Constable Colby. He arrived at the scene of the accident at about 3.15 pm. The collision took place at about 12.20 pm. He understood the accident scene to have been preserved. The bodies of the four occupants were still inside the Magna motor vehicle. He said it was extremely difficult to see inside that vehicle and to ascertain how many people were inside it. The semi-trailer was still on top of the Magna motor vehicle at that stage. It is clear from Senior Constable Colby’s statement that the positions of the persons in the Magna motor vehicle were indicated by writing on the hand of each of the four individuals their position in the car. Consequently, the letters LR, meaning left rear, were written on the hand of one of the bodies and the letters RR, meaning right rear, were written on the hand of one of the other bodies. As far as Mr Colby was concerned, no attempt was made at the scene of the accident to identify any of the four bodies. The bodies were removed from the scene and taken to the local hospital by funeral directors.

Senior Constable Colby was able to confirm that the hand markings were on the bodies brought to the hospital because he attended at the hospital when the deaths were announced by the doctor and observed the markings.
Appendix D2 is a further statement of Senior Constable Colby dealing with the fact that he located two handbags at the scene of the accident. He placed them in brown paper bags, took them to his police car and locked them inside the vehicle. They were subsequently taken to the Mount Gambier police station. He did not on the day of the accident attempt to associate either of the handbags to either of the women found in the rear of the Magna motor vehicle.
Nothing in Mr Colby’s statement indicates negligence. In particular, there is nothing to suggest that the bodies were incorrectly marked on their respective hands as to their position in the vehicle.
Appendix F is the statement of Senior Sergeant Paul Evans. He made an inquiry with a view to ascertaining the names of the persons in the Magna motor vehicle. His inquiries included obtaining information from the person who hired out the Magna motor vehicle. By that inquiry and by other specified inquiries, the names of the occupants of the Magna motor vehicle were ascertained. There is nothing in his statement which indicates a breach of duty on the part of the police.
Appendix G1 is the statement of Senior Constable Wasley. By the time he arrived at the scene the bodies in the Magna motor vehicle had been taken from the scene. Appendix G2 is a further statement of Senior Constable Wasley. It is evident from his statements that he took no part in attributing names to the two female bodies. However, he referred in his statements to reading, at the accident scene, a handwritten copy log which he used to complete his own log, a copy of which is Exhibit P1. Mr Wasley was adamant that he read the handwritten log at the scene. If he is correct, it follows that another police officer wrongly attributed names to the two women passengers because, at page 4 of P1, Mr Wasley has recorded what he obtained from the handwritten log. If he correctly recorded what he read, the wrong names were given to the two women passengers.
Appendix I is the statement of Sergeant Terry Patton. Appendix J is a further statement of Senior Constable Holland. He was in charge of the scene of the collision from about 4.46 pm on the day of the accident. He had nothing to do with the removal of the bodies from the Magna motor vehicle nor did he have anything to do with the marking of the bodies which were subsequently removed from the scene of the accident.
There is nothing in the statement of Sergeant Patton that assists with ascertaining how the wrong names were attributed to the female persons who were killed in the collision.
It is clear from Question 15 in Appendix J and the answer given that when the two handbags were booked in at the Mount Gambier police station, the name of the owner of the handbag was ascertained by reference to the content of the handbag. It is also clear from Senior Constable Holland’s statement that at the time of the removal of the two women from the vehicle, police officers were unable to determine which handbag belonged to which female person.
Appendix K is the statement of Mr Jim Manser. At the time of the collision he was a police officer. He was a crime scene examiner. He attended at the accident site on the day of the accident. He was present when the bodies were removed from the Magna motor vehicle. Before they were removed from the vehicle their respective positions in the vehicle were marked with a texta pen either on the back or front of the hands. The markings indicated their positions in the vehicle. His recollection was that the marking was done by police officers Brenton Jones and John Holland. Mr Manser took photographs of the markings. These were taken at a time when the occupants of the vehicle were still in the vehicle. There is nothing in Mr Manser’s statement that assists in determining how the wrong names were attributed to each of the female bodies in the Magna motor vehicle.
Appendix L is the statement of Detective Senior Constable Scott Davis. He saw police officers removing the bodies from the Magna motor vehicle. He saw that markings were made on the hands of the deceased. His evidence does not assist with the question of the attribution of names to the bodies of the two female deceased.
Appendix M1 is the statement of Alexander Marton, the husband of the plaintiff Tania Marton.
Appendix M3 is the statement of Sergeant Kym Driscoll. He was the supervisor of Senior Constable Wasley and Senior Constable Neville Logan. He recalls that on the day of the accident he was telephoned at Adelaide by Senior Constable Wasley and given the names of the occupants of the vehicle and their respective positions in the vehicle. He was unaware of how Senior Constable Wasley acquired that information.
Appendix M4 is the statement of Senior Constable Logan. He arrived at the scene of the accident with Senior Constable Wasley. He was aware that Senior Constable Wasley obtained details of the names of the persons involved in the collision (apart from Mr Szamanowski) and of their respective positions in the vehicle.
The further statement of Senior Constable Logan is Appendix M5. He was referred to a document where he described the identification of the deceased as “tentative only by property on deceased”. The document was not tendered, presumably because it could not be found.
Appendix M18 is the statement of Mr Robert Trench. He was a member of the SES at the accident scene and he subsequently transferred two of the bodies to Adelaide.
Appendix O is the statement of the plaintiff Tania Marton.
Appendix U is the statement of the plaintiff Anatoly Halech.
Appendix V is the statement of Ms Val Caddy, the sister of Anatoly Halech and the daughter of the deceased, Mrs Halech.
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 to the contents of the handbag.
I draw the inference, based on Mr Wasley’s evidence, that the names of the women and their respective positions in the motor vehicle were provided to him at the scene of the accident. It seems to me that it was negligent on the part of police officers to attribute names to the bodies of the deceased females at that stage.
The mistaken attribution of names persisted right up to the time that the bodies were identified by the relatives of the deceased. Assuming that a duty of care arose and that there was a breach of that duty and that the breach persisted until the time of identification by the deceased’s relatives, further negligence on the part of the police officers may consist of the presentation of the bodies for identification as being respectively the bodies of Mrs Halech and Mrs Fetishinski, whereas the reverse was correct. Even if the police were additionally negligent in that way, the question arises as to whether or not any negligence on the part of the police caused loss to the plaintiffs. I shall return to that topic.
It is necessary to bear in mind the distinction between evidence which shows that there was a mistake in the attribution of names to the two female deceased and evidence as to how that came about. There is an abundance of evidence that a mistake was made, including the evidence relating to police records about the ownership of the handbags. There is further evidence as to clothing and personal jewellery wrongly being attributed to one of the female persons. That type of evidence does not shed any light upon how the names were confused in the first place. In order to ascertain whether there had been a breach of duty, the circumstances of the investigation of the accident on the day it occurred must be scrutinized.
Having reviewed the evidence consisting of the statements of the various police officers forming part of Exhibit P6, it appears that one or more of the following things occurred by the time Senior Constable Wasley came on to the scene late on the day of the accident. First, either the positions of the two women in the rear of the Magna motor vehicle were wrongly recorded by markings on the hands of the two women or, second, a police officer, in a written log maintained during the course of the afternoon, wrongly recorded the names of the two women by reference to their positions in the rear of the car; third, both of those things may have occurred.
At least one of those three hypotheses must have occurred and in those circumstances a breach of duty occurred because the incorrect markings of positions on the hands of the two women could only have come about if the persons carrying out the markings were careless. In the case of attributing names to the two female bodies, there was no warrant or justification for doing that at the scene of the accident and recording it as such. In that event, there was a lack of care on the part of the person making the attribution.
I have considered whether or not the mistaken attribution was made by some one other than a police officer. My conclusion is that it must have been a police officer because the source of the error was found in the handwritten log read by Senior Constable Wasley at the scene of the accident which caused him to note the positions and names of the two women.
For these reasons, I consider that the plaintiffs have made out the allegation of negligence in paragraphs 14.1 and 15.1 respectively.
Paragraph 14.2 alleges that officers of the defendant failed to record information which they should reasonably have recorded because the information would have shown that there was doubt as to the identity of the respective bodies. This is a general assertion unsupported either by particulars or evidence of a failure to record information of the type described in 14.2. I do not consider that the plaintiffs have made out the allegations respectively in paragraphs 14.2 and 15.2.
Paragraph 14.3 asserts that officers of the defendant failed to take any or any adequate action to check the identity of the two female bodies prior to them being transferred to Mount Gambier and later to Adelaide. To some degree paragraph 14.3 overlaps with paragraph 14.1 and to that extent, it must be taken to have been made out.
In paragraphs 14.4 and 15.5 of the Statements of Claim, it is pleaded that “[i]n the circumstances, the defendant should reasonably have made further checks or tests to ensure the accurate identification of the bodies” of the two deceased. Again, this is a general allegation unsupported by particularity in the pleading itself. There is, however, some evidence in relation to an enquiry made by a police officer as to whether or not Mrs Fetishinski had gold fillings in any of her teeth. As I understand the case for the plaintiffs, it is this aspect of the evidence to which paragraphs 14.4 and 15.5 are directed.
The following findings of fact are relevant to paragraphs 14.4 and 15.5. In the week following the motor vehicle accident and prior to the respective funeral services in relation to those killed in the accident, the plaintiffs and others had identified the four persons killed in the accident. Mr Halech, when he attended at the Forensic Science Centre with his sister on the Saturday morning after the accident, initially had some doubt that the body shown to him was that of his mother. His sister, Mrs Caddy, who gave evidence, did not have any doubt. As a result Mr Halech then agreed that the body shown to him and to his sister was the body of his mother.
The female body, at the time of this identification, was covered by a sheet. The face was uncovered from the forehead to the chin and from a point just forward of the ear to the corresponding point on the other side of the face. Prior to entering the viewing area, Mr Halech and his sister were told that they would be shown the body of their mother. The significant aspect of this evidence was the fact that Mr Halech in the presence of a police officer, expressed some doubt as to whether or not the body presented for identification was that of his mother.
The next matter of significance prior to the funeral services was the collection by relatives of the personal effects of the deceased persons. It is apparent from the evidence given respectively by the plaintiffs and Ms Caddy that, to some significant degree, the personal effects of Mrs Fetishinski were recorded by the police as belonging to Mrs Halech and vice versa.
As I understand the plaintiffs’ respective cases, it is that, given the doubt expressed by Mr Halech and given the mix-up in relation to the personal effects, the police should have been put on notice that further investigations as to identity should be carried out, including the check by reference to dental records. Although the dental records of Mrs Fetishinski may have not been available because there was no evidence that she had undergone dental treatment in Australia, the inference may be drawn from the evidence of Mr Halech and Ms Caddy that Mrs Halech had dental records in South Australia which could have been used for identification purposes.
Although an enquiry was made by the police of Ms Marton as to Mrs Fetishinski’s dental condition, there is no evidence that this was followed up by the police. However, there is evidence that the police did take further steps in relation to the identification of the two women.
Mr Halech and Ms Caddy were asked to attend a second viewing of the woman thought to be Mrs Halech for the purposes of identification. They did not take up that opportunity. In addition, Ms Marton was asked to attend a further viewing of the body originally identified by her as her step-mother. She took up that opportunity and attended at the funeral parlour where the body was being kept. She again identified the body presented as that of her step-mother.
It might be argued that Swan v State of South Australia (supra) supports the proposition that a duty of care arose in these circumstances. The plaintiffs assert that, because the police officers had information that a wrong identification may have been made, once they had that information a duty of care arose in relation to what further steps were taken. This poses the question: what should the police have done once they knew that one of the relatives of one of the deceased was not certain about the identity of the body viewed and, in addition, once it became clear that the personal effects of the two deceased women had become mixed up? It is not disputed that the police requested both sets of relatives to attend for a further identification. Mr Halech did not take up the opportunity, but Mrs Marton did. She confirmed the original identification. Should the police have followed through with dental investigations?
It seems to me that the Police Department had afforded to concerned relatives the opportunity to re-open the question of identification. In the case of Mr Halech, he did not take up that opportunity and in the case of Ms Marton she confirmed her previous identification. To that extent I consider, and so find, that, even if a duty of care arose as contemplated in Swan, the defendant through the relevant police officers, acted reasonably in relation to the further checks as to the accurate identification of the two female bodies. In particular, I consider that because Mr Halech did not take up the opportunity for a second viewing and because Ms Marton confirmed her original identification, it was not necessary for the police to make further investigations including those in relation to dental records.
For these reasons, I do not consider that the plaintiffs have made out the allegations in paragraphs 14.4 and 15.5.
Paragraph 14.6 asserts that the defendant failed to advise the plaintiffs of any doubt or reasonable basis for doubt as to the correct identification of Mrs Halech and Mrs Fetishinski. This sub-paragraph was not pursued as a separate particular of negligence but rather, as an assertion relating to the inadequacy of the procedures adopted by the investigating officers relating to the identification of the bodies as referred to in paragraph 14.5.
Paragraphs 14.7 of Ms Marton’s statement of claim and 15.7 of Mr Halech’s statement of claim are the complaints of the respective plaintiffs in relation to the way in which they were asked to identify the bodies presented to them for identification and relating to the provision of the personal effects of the two women to the respective plaintiffs. It is difficult to see how these assertions of alleged negligence relate to the plaintiffs’ respective cases. Both their claims centre upon the contention that the police officers negligently attributed names to the two female bodies and that when the true situation was found out, they each suffered psychological injury. There is thus a direct causative relationship between the alleged negligence of the police officers and the psychological injury which the plaintiffs respectively say they sustained. It is difficult to see how in relation to paragraphs 14.7 and 15.7, there is a causal relationship between the occurrence of the alleged events described in those paragraphs and the onset of psychological illness. It seems to me, that if the allegations in those paragraphs have any bearing, it is in relation to the question of whether or not the respective claims by the plaintiffs and the defences pursued by the defendant give rise to the requirement that the Court adjudicate as to whether or not there has been contributory negligence, and if so, the extent of such contributory negligence. In particular, I refer to paragraph 6(a) of the two defences relied upon by the defendant.
The final allegation of negligence is contained in paragraph 14.8 and 15.8 of the respective statements of claim. In essence, it is asserted that the police were negligent in failing to check photographs of the bodies in the vehicles at the scene of the accident. It is not said how this would have assisted the police in relation to the identification of the two female bodies, although it is clear from the evidence that had those photographs been shown to the relatives of the deceased women when they initially identified the bodies, it is probable that the mistaken attribution of names by the police to the respective bodies would have become evident.
Although the defendant’s primary position was that no duty of care arose, the defendant contended that even if such a duty did arise, there had been no negligence on the part of the defendant. It was argued, in addition, that even if the defendant had been negligent, the intervening act of identification of the bodies by the relatives of the deceased women, including the plaintiffs, broke the chain of causation between the negligent actions of the defendant and the subsequent onset of psychological injury. This defence overlaps with the defence of contributory negligence. Both defences are centred upon the contention that the intervening identification by the plaintiffs of the female bodies either broke the chain of causation or, alternatively, constituted contributory negligence on the part of those plaintiffs.
Contributory Negligence

I will deal with the question of contributory negligence first. In my view, there has not been any contributory negligence on the part of the plaintiffs. The evidence given by the plaintiffs and the police officers and Ms Caddy relating to the identification of the bodies, whilst not in agreement as to every point, establishes that the plaintiffs respectively were told prior to being called upon to identify the body that the body presented was that of, respectively, the mother or step-mother of the plaintiff and that only a relatively small portion of the face of the deceased woman was able to be seen by the respective plaintiffs and Ms Caddy. It is also clear that there was an intervening pane of glass between the viewing area and the area where the body was placed for identification purposes. I find that the respective bodies were well lit so that there was sufficient light for those viewing the respective bodies to see the exposed part of the body. There was nothing to suggest that either of the plaintiffs was careless in the way in which they carried out the identification. Accordingly, I find that the respective plaintiffs were not then guilty of contributory negligence.
I form the same conclusion in relation to the further identification procedure carried out which the plaintiff Ms Marton attended. There is nothing to suggest that on that occasion, at the funeral parlour, she did other than carefully look at the exposed part of the face of the female body and confirmed her original opinion.
For the sake of completeness, I mention the fact that the plaintiffs had the opportunity to view the bodies at the funeral services of the respective bodies and nothing that occurred then indicates contributory negligence on the part of either plaintiff.
Novus Actus Interveniens
I now turn to the question of whether the chain of causation has been broken by an intervening act of identification.
The facts of this case do not fall within the usual type of case of novus actus interveniens. In Clerk and Lindsell On Torts, 18th Edition, the learned editors describe the defence as arising “[w]here the defendant’s conduct forms part of a sequence of events leading to harm to the [plaintiff], and the act of another person, without which the damage would not have occurred, intervenes between the defendant’s wrongful conduct and the damage ...” In those circumstances “the court has to decide whether the defendant remains responsible or whether the act constitutes a novus actus interveniens, ie whether it can be regarded as breaking the causal connection between the wrong and the damage” (para 2-36 at page 67). In the ordinary case, the court, in considering the problems of causation which arise, takes into account the impact of the intervening conduct, whether it was deliberate or unreasonable, the foreseeability of such conduct and whether the defendant bears any responsibility for the action of the intervening party. These are matters that do not arise in the circumstances of this case because the intervening conduct is that of the plaintiff in identifying the deceased persons. In those circumstances I do not consider that the question of the plaintiffs’ respective misidentification of the bodies should be looked at by reference to the defence of novus actus interveniens. In my view, the matter is best determined by reference to the general principles relating to causation as discussed by the High Court in such cases as March v E and M H Stramare Pty Ltd and Another (1991) 171 CLR 506.
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 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.
There will be orders dismissing the plaintiffs’ respective actions. I will hear counsel as to costs.

[2004] SADC 78

20 May 2004