I previously reported on the decision in in Skillen v State of New South Wales; Fuller v State of New South Wales; Fuller-Wilson v State of New South Wales [2017] NSWDC 342 (see NSW Police owed no duty of care to the family of fatal accident victim (December 1, 2017)).

In that case the plaintiffs sued NSW Police where they attended the scene where Mr Wilson had died and

…discovered ‘part of a foot and ankle and clothing containing the deceased’s melted remains…’ As a result of discovering the remains and clothing at the scene, that the Plaintiffs suffered psychological harm.

The case was dismissed, without trial, by District Court Judge Hatzistergos.  At the end of my post I said: “To dismiss a case without trial is unusual and it may be that the plaintiffs will seek to appeal that decision to the Supreme Court”.  The plaintiffs did appeal to the NSW Court of Appeal – Fuller-Wilson v State of New South Wales [2018] NSWCA 218.

In allowing the appeal Basten JA noted that the case would not succeed on the current state of the law but the common law developed on a case by case basis and it was open to the appellants to argue ‘that the common law in Australia should recognise a wider scope of liability’ ([12]).  That is this may be the case where a court is persuaded to expand liability and the appellant’s should not have been denied the chance to make that argument.

His Honour said that the activities of the police in removing the body and undertaking investigations, whether for the purposes of detecting an offence or for assisting the coroner, were part of their ‘public duties and not for the protection of any individual or class of individuals’ ([37]).  To demonstrate that there was a duty owed to the victims family with respect to how those tasks were performed, the appellants would need to show there there was ‘an implied statutory purpose of protecting individuals’.  He continued (at [74]):

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

Further (at [83]) the High Court’s statement in Graham Barclay Oysters v Ryan (2002) 211 CLR 540, that:

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

White JA and Emmett AJA agreed with Basten JA and the appeal was upheld.

The Court of Appeal did not determine whether or not the police did owe the relevant duty of care nor did the court decide whether there had been any negligence.  The decision of the Court of Appeal was limited to the question of whether or not the case was so unarguable that it should be dismissed without trial.  They held that the argument that there was a duty of care could not be determined without allowing the parties to prove the facts they relied upon and to fully argue how the alleged duty would be consistent with the earlier legal authorities.

The matter will now return to District Court to resolve, unless, of course, the parties come to a settlement first.