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Police powers and duties: incoherence and incompatibility; Summary dismissal October 3, 2018

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – primary judge summarily dismissed proceedings on basis that defendant did not owe plaintiffs a duty of care – where weight of current authority against existence of duty of care – where argument available that common law should be extended to recognise duty of care – whether proceedings should have been summarily dismissed
NEGLIGENCE – duty of care – police officers – plaintiffs allegedly discovered remnants of deceased family member at scene of fatal motor vehicle accident – plaintiffs alleged negligence of police officers in failing to remove remains from accident scene caused them psychological injury – whether reasonably arguable that officers owed plaintiffs duty of care – whether officers assumed responsibility at accident scene – whether duty would give rise to incoherence or inconsistent obligations –salient features analysis – relevance of principle in Hill v Chief Constable of West Yorkshire [1989] AC 53
NEGLIGENCE – public authorities – duty of care – circumstances in which public authorities will owe duty of care in performance of statutory functions – whether duty of care precluded on basis it gives rise to inconsistent obligations – consideration of Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59


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

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

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

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

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

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

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

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

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

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


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Circumstantial case: the fact finding process

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