NSW Court of Appeal in Fuller-Wilson revisits police officers and conflicting duties of care
Thursday, 11 October 2018
Carroll & O'Dea Special Counsel Bill Madden, an accredited specialist in personal injury law, discusses the recent NSW Court of Appeal decision in Fuller-Wilson v State of New South Wales.
The issue of whether a duty of care will be rejected on the basis that it imposes obligations on a public authority, inconsistent with its statutory obligations, has been addressed in medical settings. Sullivan v Moody is perhaps the best known example.
The issue was revisited by the NSW Court of Appeal in Fuller-Wilson v State of New South Wales  NSWCA 218.
In 2013 Mr Keith Wilson was killed in a motor vehicle accident. Some six months later in early 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 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, 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 allowed the appeal, holding:
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: -. 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: ; . In those circumstances, the proceedings should not have been summarily dismissed: ; ; .
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 the particular statutory regime has been properly identified and 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: ; ; ; -.
Section 42, Civil Liability Act 2002 (NSW) – principles concerning resources, responsibilities etc of public or other authorities – was discussed at  – .
Bill Madden has more than 30 years of extensive litigation experience and is one of Australia’s most qualified medical negligence lawyers. He is recognised by the NSW Law Society as an accredited specialist in personal injury law. He is also accredited as a mediator under the National Mediator Accreditation System (NMAS) and is a member of the Law Society Mediator’s Panel. Highly regarded by his peers, Bill’s areas of speciality include claims for birth trauma including cerebral palsy, stroke, brain injury and haemorrhage, delayed cancer diagnosis and wrongful birth. Bill says: “Helping people navigate through the legal system and achieve the compensation they deserve is the most meaningful part of my work”. Contact Bill at Bill_Madden@codea.com.au or visit his blog or follow him on Twitter
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