Skillen v State of New South Wales; Fuller v State of New South Wales; Fuller-Wilson v State of New South Wales

Judgment

1. Elizabeth Ann Fuller- Wilson is the wife of Keith Arthur Wilson, [1] who tragically died in the course of his employment as a truck driver with KLAP Brothers Transport Pty Ltd. [2] Nicole Fuller and Brea Skillen are both family members of the deceased.
2. The Plaintiffs have brought proceedings in negligence against the Defendant as being a party liable for the acts or omissions of the NSW Police Force, pursuant to the Crown Proceedings Act 1988 (NSW). [3] Although the proceedings were initially brought in relation to the acts or omission of the NSW Ambulance Service, [4] this has been abandoned. [5]
3. On 28 March 2017, the Defendant filed Notices of Appearance. On the same day, consent orders were made that the proceedings in the three matters travel together. No Defences at this point have been filed.
4. On 29 May 2017, the Defendant filed a motion in each case, seeking orders:- ORDERS SOUGHT (1) Pursuant to UCPR 13.4(1)(b), the proceedings be dismissed. Alternatively: (2) Pursuant to UCPR 14.28(1)(a), the whole of the statement be struck out
5. Although in oral submissions the Defendant referred to the power in both rules [6] in written submissions the Defendant advanced on the basis of UCPR 13.4(b). [7] Both rules are predicated on the absence of a reasonable cause of action UCPR 14.28(1)(a) focuses on the pleadings whilst UCPR 13.4(1)(b) refers to the proceedings 'generally' or 'any claim for relief.' 'The Defendant in any event acknowledged that for the purpose of its application the Court is to proceed on the basis of the Plaintiff's case taken at its highest. [8]

Statement of Claim

1. According to the Statement of Claim filed in each case, the fatality occurred as a result of a collision between a vehicle being driven by the deceased and another vehicle on the Pacific Highway at Nabiac at approximately 2:00pm on 18 June 2013. The body of the deceased was severely burned in the accident, resulting in it being removed from the scene of the accident by servants or agents of the Defendant and transported to Manning Base Hospital.
2. However, it is alleged that the removal of the body was incomplete, in that, "part of a foot and ankle and clothing containing the deceased's melted remains were left at the scene."
3. On 14 February 2014, each of the Plaintiffs attended the accident scene. It is alleged that they discovered the said remains and clothing, and recognised them as belonging to the deceased. It is asserted that as a result of discovering the remains and clothing at the scene, that the Plaintiffs suffered psychological harm.
4. The particulars of negligence alleged by the Plaintiffs were expressed as follows:- PARTICULARS OF NEGLIGENCE (a) Failing to thoroughly examine the accident scene; (b) Failing to remove all parts of the deceased's body and personal effects from the scene of the accident; (c) Leaving part of the deceased's body at the accident scene; (d) Failing to ensure that the scene was inspected after removal of the corpse so that any remaining body parts or personal effects were identified and removed; (e) Failing to observe that the body of the deceased was incomplete; (f) Failing to identify the missing portions of the body of the deceased and undertake a search for them; (g) Failing to warn the Plaintiff of the possibility that some body parts had been left at the scene of the accident. [9]

Evidence

1. In support of the notices of motion, the Defendant relied on affidavits of Ms Sinead Westaway, the solicitor for the Defendant dated 16 June 2017. Those affidavits, annexe a request for Further and Better Particulars forwarded on behalf of the Defendant, dated 31 March 2017, together with responses forwarded by the solicitor for the Plaintiffs, dated 24 May 2017.
2. In response to requests to identify the facts which the Plaintiff intends to rely upon at trial to prove that a duty of care was owed by the NSW Police Force, the solicitor for the Plaintiffs, Ms Tanya To, foreshadowed reliance on a statement of Senior Constable Luke Murray, dated 26 June 2013 (but signed on 10 January 2014).
3. In response to a request to particularise the duty of care allegedly owed, Ms To responded:- "The defendant, through its servants or agents, had a duty to collect the remains of the deceased. It failed in that duty in that body parts and personal belongings of the deceased containing his tissue was left at the scene. It is foreseeable that the deceased family members would attend at the scene of the fatality to pay their respects. It is foreseeable that the discovery of the remains would be distressing and could potentially cause psychological harm. This is a very different case to Cumming v State of New South Wales for the reason that the persons [sic] responsibility for collecting the remains of the deceased had control of the site where the accident occurred and were directly responsible for collecting his remains. There is an element of control over the activity which warrants the imposition of a duty of care in the circumstances." [10]
4. The Plaintiffs further relied on the affidavit of Ms To, solicitor, dated 27 June 2017, which annexed the statement of Senior Constable Luke Murray referred to earlier.

Defendant's Submissions

1. Both parties accepted [11] that the principles relevant to such an application under UCPR 13.4(1)(b) were summarised by Gleeson JA in Simmons v NSW Trustee and Guardian. [12]
2. The Defendant commenced by pointing to ss 6 and 7 of the Police Act 1990 (NSW). [13] The latter relevantly provided:- 6 Mission and functions of NSW Police Force (1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear. (2) The NSW Police Force has the following functions: (a) to provide police services for New South Wales, (b) to exercise any other function conferred on it by or under this or any other Act, (c) to do anything necessary for, or incidental to, the exercise of its functions. (3) In this section: "police services" includes: (a) services by way of prevention and detection of crime, and (b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and (c) the provision of essential services in emergencies, and (d) any other service prescribed by the regulations. (4) A reference in this section to the functions of the NSW Police Force includes a reference to the functions of members of the NSW Police Force. (5) The provision of police services in emergencies and rescue operations is subject to the State Emergency and Rescue Management Act 1989 and to the Essential Services Act 1988. (6) Nothing in this section confers on the NSW Police Force a power to provide a police service in a way that is inconsistent with any provisions applicable to police officers under the Law Enforcement (Powers and Responsibilities) Act 2002. 7 Statement of values of members of NSW Police Force Each member of the NSW Police Force is to act in a manner which: (a) places integrity above all, (b) upholds the rule of law, (c) preserves the rights and freedoms of individuals, (d) seeks to improve the quality of life by community involvement in policing, (e) strives for citizen and police personal satisfaction, (f) capitalises on the wealth of human resources, (g) makes efficient and economical use of public resources, and (h) ensures that authority is exercised responsibly.
3. The Defendant acknowledged that these sections were aspirational in nature and do not create private obligations. [14] It also referred to the provisions of the Coroners Act 2009 (NSW), [15] which, assuming that a coronial investigation scene order has been made, provides in s 43, a police officer may, inter alia:- 43 Coronial investigation scene powers … (m) seize and detail all or part of a thing that might provide evidence in relation to the inquest or inquiry or provide evidence of the commission of an offence; (p) take possession of the remains of a deceased person on behalf of the coroner, including body tissue, clothing and items apparently in the possession of the deceased person; (q) remove or case the removal of the remains of a deceased person to any location nominated by the coroner.
4. The Defendant further referred to the State Emergency and Rescue Management Act 1989 (NSW) [16] , which is referred to in s 6(5) of the 1900 Act, Pointing to the definition of "emergency" in s 4(1) of the 1989 Act, the Defendant argued that the accident where the deceased was killed, fell within that definition and that the scene required a co-ordinated response of the NSW Police (including NSW Police Rescue), the NSW Ambulance Service and the NSW Fire Service. [17]
5. Pursuant to s 61 of the 1989 Act, the Defendant asserted that the NSW Police were empowered to take certain safety measures which included taking possession of, and removal or destruction of any material or thing in the danger area or any part of the danger area that may have been dangerous to life or property or that may have interfered with the response of emergency services to the emergency; [18] and the protection or isolation of any material or thing in the danger area by preventing a person removing or otherwise inferring with the material or thing. [19]
6. It noted that s 62 of the 1989 Act excluded personal liability of members of an emergency or rescue management organisation (which includes the NSW Police) if the matter or thing was done in good faith for the purposes of executing the statute or any other Act. [20]
7. The Defendant next drew attention to the provisions of s 5B of the Civil Liability Act 2002 (NSW), [21] which it argued, were applicable as the claim was not excluded under s 3B of that Act. Specifically, attention was drawn to the provisions of s 42 of the 2002 Act, which it contended, applied to determining whether the NSW Police owed a duty of care. Section 42 of the 2002 Act provides:- 42 Principles concerning resources, responsibilities etc of public or other authorities The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies: (a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions, (b) the general allocation of those resources by the authority is not open to challenge, (c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate), (d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate.
8. The Defendant contended that the question of whether a member or members of a police force owes a duty of care to a member of the public commences with the decision of the House of Lords in Hill v Chief Constable of West Yorkshire. [22] However even if the principle in Hill as applied in Australia was not sufficient to lead the Court to summarily dismiss the proceedings, the Defendant maintained that the application of the salient features test and s 42 of the 2002 Act would lead the Court to find that here was no reasonable cause of action disclosed in the pleadings. [23]

Plaintiffs' Submissions

1. The Plaintiffs submitted that the contents of the statement of Constable Luke Murray evidenced that police had control of the scene throughout the whole period following the accident, including removing the body of the deceased up the side of the road for its transportation by the government contractor to the Manning Base Hospital, where life was pronounced extinct.
2. The Plaintiffs argued that in determining whether a duty of care arises the Court should apply the salient features test expressed by Allsop P in Caltex Refineries (Qld) v Stavar. [24] The Plaintiffs argued that the police conduct gave rise to reasonable foreseeability of harm. [25] Furthermore they drew attention to the characteristics of the relationship of the parties that demonstrated a duty of care is justified being: 1. The police control of the accident scene; 2. The plaintiffs' vulnerability; 3. The police assumption of responsibility; 4. The police function was not to solely to investigate and manage the circumstances of the accident but extended to the ancillary actions of dealing with human remains; 5. To impose a duty of care in the circumstances would create little or no conflict with other duties and responsibilities but would encourage due performance; as there are good policy reasons for wanting to ensure that the treatment of human remains results in due regards to the deceased's family members. [26]
3. The Plaintiffs further rejected the Defendant's submission that the decision in Hill represents the principles applicable to the determination of the scope and content of a duty of care of police officers. It contends that such an approach would serve to elevate the decision to a binding precedent in circumstances where decisions of the House of Lords are not binding on this Court. [27]

Salient Features Test

1. In Caltex Refineries (Qld) v Stavar, Allsop P held:- [28] [102] This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the "salient features" or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury. [103] These salient features include: (a) the foreseeability of harm; (b) the nature of the harm alleged; (c) the degree and nature of control able to be exercised by the defendant to avoid harm; (d) the degree of vulnerability of the plaintiff to harm from the defendant's conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself; (e) the degree of reliance by the plaintiff upon the defendant; (f) any assumption of responsibility by the defendant; (g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant; (h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff; (i) the nature of the activity undertaken by the defendant; (j) the nature or the degree of the hazard or danger liable to be caused by the defendant's conduct or the activity or substance controlled by the defendant; (k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff; (l) any potential indeterminacy of liability; (m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff; (n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one's own interests; (o) the existence of conflicting duties arising from other principles of law or statute; (p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and (q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law. [104] There is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features. Nor should the list be seen as exhaustive. Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content.
2. Although Simpson JA agreed with Allsop P, her Honour also agreed with the additional comments of Basten JA. In his judgment, Basten JA added:- [172] … The multi-factorial approach should not…, be treated as a shopping list, all the items of which must have application in a particular case. Rather, it provides a list of considerations which should be considered, as potentially relevant, depending on the kind of case before the Court. Further, it is necessary to distinguish between those considerations which are essentially factual, those which require value judgments and those which may require the application of legal policy. [29]
3. The existence of reasonable foreseeability as contended by the Plaintiffs is a necessary element, but not a sufficient condition of the existence of the duty of care. [30]
4. In considering the other overlapping considerations raised by the Plaintiffs, it is first necessary to consider the application of the Hill principle.

Hill Principle

1. Hill concerned a suit brought against the Chief Constable of an area in which the Plaintiff's daughter was attacked and murdered. The Plaintiff's case against the Chief Constable was for negligence in the conduct of investigations into the antecedent crimes and failing to apprehend the murderer so as to prevent the murder of her daughter. The Defendant in that case, successfully applied to have the writ and statement of claim struck out as disclosing no cause of action. An unsuccessful appeal was brought to the House of Lords. In finding that the police did not owe a duty of care, Lord Keith held that:- 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 [1981] EWCA Civ 6; [1982] 1 W.L.R. 349 and Rigby v. Chief Constable of Northamptonshire [1985] 1 W.L.R. 1242. Further, a police officer may be guilty of a criminal offence if he wilfully fails to perform a duty which he is bound to perform by common law or by statute: see Reg. v. Dytham [1979] Q.B. 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 Reg. v. Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 Q.B. 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. [31] His Lordship then went on to consider issues of immunity from suit and held:- That is sufficient for the disposal of the appeal. But in my opinion there is another reason why an action for damages in negligence should not lie against the police in circumstances such as those of the present case, and that is public policy. In Yuen Kun Yeu v. Attorney General of Hong Kong [1988] A.C. 175, 193, I expressed the view that the category of cases where the second stage of Lord Wilberforce's two stage test in Anns v. Merton London Borough Council [1978] AC 728, 752 might fall to be applied was a limited one, one example of that category being Rondel v. Worsley [1969] 1 AC 191. Application of that second stage is, however, capable of constituting a separate and independent ground for holding that the existence of liability in negligence should not be entertained. Potential existence of such liability may in many instances be in the general public interest, as tending towards the observance of a higher standard of care in the carrying on of various different types of activity. I do not, however, consider that this can be said of police activities. The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes. While some such actions might involve allegations of a simple and straightforward type of failure - for example that a police officer negligently tripped and fell while pursuing a burglar - others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do. The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and retraversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted. I therefore consider that Glidewell L.J., in his judgment in the Court of Appeal in the present case [1988] Q.B. 60, 76, was right to take the view that the police were immune from an action of this kind on grounds similar to those which in Rondel v. Worsley [1969] 1 A.C. 191 were held to render a barrister immune from actions for negligence in his conduct of proceedings in court. [32]
2. Lord Templeman said to a similar effect:- The present action could not consider whether the training of the West Yorkshire police force is sufficiently thorough, whether the selection of candidates for appointment or promotion is defective, whether rates of pay are sufficient to attract recruits of the required calibre, whether financial restrictions prevent the provision of modern equipment and facilities, or whether the Yorkshire police force is clever enough and if not, what can and ought to be done about it. The present action could only investigate whether an individual member of the police force conscientiously carrying out his duty was negligent when he was bemused by contradictory information or overlooked significant information or failed to draw inferences which later appeared to be obvious. That kind of investigation would not achieve the object which Mrs. Hill desires. The efficiency of a police force can only be investigated by an enquiry instituted by the national or local authorities which are responsible to the electorate for that efficiency. Moreover, if this action lies, every citizen will be able to require the court to investigate the performance of every policeman. If the policeman concentrates on one crime, he may be accused of neglecting others. If the policeman does not arrest on suspicion a suspect with previous convictions, the police force may be held liable for subsequent crimes. The threat of litigation against a police force would not make a policeman more efficient. The necessity for defending proceedings, successfully or unsuccessfully, would distract the policeman from his duties. This action is in my opinion misconceived and will do more harm than good. A policeman is a servant of the public and is liable to be dismissed for incompetence. A police force serves the public and the elected representatives of the public must ensure that the public get the police force they deserve. It may be that the West Yorkshire police force was in 1980 in some respects better and in some respects worse than the public deserve. An action for damages for alleged acts of negligence by individual police officers in 1980 could not determine whether and in what respects the West Yorkshire police force can be improved in 1988. I would dismiss the appeal. [33]
3. The principle set out in the speech of Lord Keith was agreed to by Lord Braddon, Lord Oliver, and Lord Goff.
4. Hill has been cited by approval by the High Court in Sullivan v Moody. [34] In that case, the High Court stated:- [57] In Hill v Chief Constable of West Yorkshire, the 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 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. [58] Earlier, in Yuen Kun Yeu v Attorney-General of Hong Kong, the Privy Council held that a regulatory authority did not owe a duty of care to corporate depositors. Their Lordships pointed to the responsibilities and discretions of the authority, and concluded that there was no intention on the part of the legislature that, in considering whether to register or deregister a company, there should be a common law duty of care superimposed upon the statutory framework. [59] Reference has already been made to the reasoning of Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council. [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. [35]
5. In Cran v State of New South Wales and Another, [36] the appellant claimed in respect of what he alleged was a prolongation of his imprisonment, because the NSW Police and the Office of the Director of Public Prosecutions, [37] both neglected to secure prompt analysis of certain items suspected of being prohibited drugs, namely paper stickers carried by him suspected of being LSD. The analysis ultimately revealed that the paper stickers did not contain a prohibited drug. However this analysis occurred some six weeks after the time it could have occurred, had the police correctly completed a form indicating that the analysis was required for Court proceedings or told the laboratory that the accused was in custody, or had the ODPP requested a priority analysis in the circumstances.
6. Whilst in custody, Mr Cran was assaulted and had witnessed a rape and a murder. The trial judge accepted that these experiences caused distress and the unlawful detention caused the appellant humiliation and damaged his family relationships. The appeal centred on whether the State, represented by the NSW Police and the ODPP, owed a duty of care in the circumstances. Santow JA (with whom Ipp and McColl JJA agreed) stated:- [38] [50] The question here is whether rendering any aspect of police investigation and in particular what might be described as purely ministerial tasks amenable to civil liability exceeds those limits. In light of the strong dicta in Tame, an intermediate appellate court would necessarily be constrained in finding such an exception. This is so, even though its scope be modest, though the injured person be totally vulnerable and where the police or prosecutorial authorities have the entire power to control the situation that brought about that harm to the injured person. Thus McHugh J in Graham Barclay Oysters Pty Ltd supra at [84] citing Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 39 [94], does recognise that there can be a supervening policy reason that denies the existence of a duty of care notwithstanding that there are other powerful factors pointing in its favour. Here recent, binding authority stands in the way of imposing a duty of care, more especially where it would tend to have an inhibiting affect upon the discharge of police investigative functions or associated prosecutorial functions, recognising the hardship this will undoubtedly occasion for those left without a remedy. [51] While it may be said that calling police to account for failure to perform ministerial tasks actually enhances the performance of their duty, I do not consider that that resolves the fundamental difficulty. It is that by subjecting by way of exception mechanical tasks to a duty of care, courts are thereby affecting police priorities in the allocation of resources. Subjecting even ministerial tasks to prospective civil liability thus has policy implications. His Honour thereafter concluded:- [63] Regrettably for the appellant in the unfortunate circumstances that were inflicted upon him, I consider that on present authority, the greater public interest accorded unimpeded investigation by Police and, so far as relevant, the DPP in carrying out its prosecutorial function, precludes any duty of care to the appellant. The current state of the law, and the policy which underlies it, gives paramount weight to those considerations even overriding the factors of vulnerability and entire dependency. This is so though the decision is itself ministerial. As Ipp JA explains, there is no bright line between the functions of disclosure and investigation, or between administrative and investigative tasks. Their efficient performance may be put at risk by the very prospect of civil action designed to provide sanctions against inefficiency; that, any rate, is the policy consideration reinforcing the immunity. [39]
7. In The Australian Capital Territory v Crowley; The Commonwealth of Australia and Pitkethly, [40] the ACT Court of Appeal referred to the citation of Hill by the High Court and NSW Court of Appeal [41] , before stating:- [286] There are some important matters to observe about the principle identified in Hill. First, it lays down a principle of general application and should not be understood as peculiar to the facts under consideration: Alexandrou v Oxford [1993] 4 All ER 328 at 340; Swinney v Chief Constable of Northumbria Police Force [1996] EWCA Civ 1322; [1997] QB 464 at 483G-F, 485F. Secondly, the reference by Lord Keith to "investigation of crime" is not meant to be narrowly confined to only that part of police activity: Osman v Ferguson [1992] EWCA Civ 8; [1993] 4 All ER 344 ("Osman v Ferguson"). The principle applies to operational policing where very quick decisions have to be made by police officers in very difficult circumstances. In Osman v Ferguson, McGowan J said at 353 that to exclude operational decisions was not supported by Hill's case and raised a dividing line that is "utterly artificial". To restrict the principle to non-operational circumstances would be to deny the policy matters which inform the principle. [287] Apart from the reasons given in Hill, there is another reason why police officers do not owe a duty of care to a suspect whom they are attempting to apprehend or arrest for the protection of the public. Common law duties cannot be imposed upon authorities if the discharge of the common law duty would conflict with a statutory duty owed by that authority …
8. The Court then referred to the decision of Santow JA in Cran at [64], noting that the law denied civil remedy except where they had been an assumption of responsibility. [42]
9. The Plaintiffs submitted that based on the remarks of Finn J in Rush and Ors v Commissioner of Police, [43] that the Court should exercise considerable caution in adopting the position propounded by the Defendant, as to there being "special principles" arising from the multiple decisions that have considered the Hill principle in Australia. [44] The remarks to which the Plaintiffs drew attention were obiter. Specifically Finn J stated:- [100] It is, in my view, unnecessary in this matter to express a concluded view on whether, as in England, a special though not unqualified, immunity rule applies to police activities "in the investigation and suppression of crime": Costello's case at 563; or whether the duty of care question is to be answered by applying to police those principles now generally applied to public authorities in the discharge of their statutory and, if relevant, common law functions: see Graham Barclay Oysters Pty Ltd v Ryan. I am of this view because both binding and persuasive authority lead inevitably to the conclusion that this application must fail. [101] … However, I would respectfully suggest that more recent English authority demonstrating "reluctance to endorse the full breadth of what Hill v Chief Constable of West Yorkshire ... has been thought to lay down" on the immunity of police: cf Brooks v Commissioner of Police, at [3], [6] and [28]; and the difficulty in providing criteria to mark out exceptions to that immunity: see e.g. Costello; Cowan v The Chief Constable for Avon & Somerset Constabulary [2001] EWCA Civ 1699; tell in favour of avoiding any special rule applicable to police, while still acknowledging that the police function can have distinctive characteristics and purposes which in many settings may exclude the concurrent operation of a duty of care at common law …
10. Consistent with the authorities above discussed. I accept that Hill continues to apply in Australia.
11. In discussing the application of Hill the Defendant made reference to a number of principles. [45]
12. First it argued that it is well accepted that in certain circumstances police officers owe a duty of care to prevent the occasioning of foreseeable harm and police officers do not enjoy a blanket immunity against suits in negligence (and the Hill principle does not stand for such a blanket immunity); [46] the Plaintiff accepted that this was so. [47]
13. Second the Defendant argued that police generally owe no duty of care to members of the public where that duty could conflict with the statutory duties of the police as well as the common law duty to enforce the criminal law. This it said was so as the duties of the police to the community must prevail. [48] The Plaintiff accepted that the police may owe no duty in such circumstances but disputed that Cran at [51]-[52] was authority that the duties of the police to community must prevail. [49] In my view, consistent with what the High Court said in Sullivan v Moody, the law ordinarily would not subject police conducting investigations or exercising powers in the public interest to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting obligations. [50]
14. Thirdly the Defendant argued that unless extraordinary circumstances or a special relationship of control or assumption of responsibility has been created, courts will not impose a duty in negligence on the police in the investigation and prosecution of crimes for various policy reasons. [51] In this regard, "investigation it said was to be construed broadly and captures operational, administrative or ministerial functions as well as purely investigative functions. [52]
15. The Plaintiffs argued that Thompson and Klein were not authority for the principle as to when a duty in negligence will arise and Cran did not provide support for construction of what constitutes an 'investigation'. [53]
16. I accept the Defendant's contention as to the circumstances where a duty may arise. Such appears consistent with authorities discussed. I further accept the Defendant's argument that a broad construction of what constitutes an investigation is to be accepted. Such is consistent with what Santow JA held in Cran [54] . Specifically Santow JA [55] and Ipp JA [56] (both with whom McColl JA agreed) accepted that there were no bright lights between the functions of disclosure and investigation or between administrative and investigative tasks. Their Honours' conclusion was further accepted in ACT v Crowley. [57]
17. Fourthly the Defendant argued that critical to establishing that "special relationship" where a duty of care might arise is the element of control or assumption of responsibility. [58] It asserted that it has been recognised that police might owe a duty of care to persons within their custody, but not, for example, to bystanders at the scene of a crime. [59] The Plaintiffs argued that Rush was not authority for the existence of a principle in Australian law that 'critical to establishing that "special relationship where a duty of care might arise is the element of control or assumption of responsibility." [60]
18. The Plaintiff draws attention to the decision in State of New South Wales v Spearpoint, where the NSW Court of Appeal refused to grant leave to the Defendant to appeal from a decision of Neild DCJ declining to make orders for summary dismissal under UCPR r 13.4(b) on the basis of the pleadings disclosing no reasonable cause of action. [61] That was a case in which it was pleaded, that despite concerns communicated to police by Mr and Mrs Spearpoint about their safety and breaches of an AVO, police did not ultimately come to arrest or detain Mr Fitler. Consequently Mr Fitler came to the Spearpoint's family home and caused damage and injury.
19. Ipp JA declined to grant leave to appeal, stating that the question of whether police owed a duty of care to a private individual arising from a failure to arrest or to otherwise protect the person from harm was very much a live issue at the trial and not a matter that should be dealt with at the dismissal stage. In particular, his Honour noted that there had been an allegation made in the Statement of Claim that a police officer of relatively senior rank, indicated to the Plaintiffs that a warrant would be issued for the arrest of Mr Fitler and that he would be detained. His Honour stated that an allegation of that kind would allow the Plaintiffs at the trial to adduce evidence that they relied on the police for their protection and it would be open for the Plaintiffs to prove that they were thereby put in a vulnerable position as they altered their position accordingly. His Honour concluded that by reason of the pleading, it was open for the Plaintiffs at trial to establish an assumption of a duty of care. Allsop ACJ came to a similar conclusion, stating: [24] Here the testing and possible vindication of the plaintiffs' assertions through the legal process will depend significantly upon the relationship proven on the particular facts between the plaintiffs and the defendant. One aspect of this, on the material in the papers could be circumstances of communication of the fact that a warrant had issued. This may conceivably give rise to questions of assumption of responsibility whether to an individual or generally which might assist in the imputation of a legal obligation to act and to exercise care. I do not draw this conclusion, I only state it to illuminate the potential for the fact based legal imputation. [25] Whilst of course we must assess the present procedural rights by reference to the presently pleaded case, it is appropriate to judge the exercise of the power to dismiss the claim with an eye to the possible development of the case through the pleadings and the evidence. [26] It is often, though not always, inappropriate to dismiss summarily a claim such as this on the pleadings, at least as they stand at an early stage in litigation. Whilst the applicant has put forward arguments that have some force, those arguments assume an inability of the respondents' case at trial to elicit facts reasonably connected with the current pleadings that could substantiate the claim as a matter of law. I cannot see that with the clarity required in a summary application.
20. Spearpoint turned on its facts involving allegations of an assumption of responsibility based on specific oral communications and a reliance on police by the Plaintiff. [62] The question in this case turns on an examination of the criteria the Plaintiff asserts gives rise to a duty of care in this instance.

Control of the Scene

1. The Plaintiff submitted that based on the contents of Senior Constable Murray's statement "it would have to be said that it is quite apparent that the police had control of the scene throughout the whole period" and had responsibility for the security of the site of the accident. [63]
2. It was submitted that police had an investigative and ancillary role including moving debris, clearing roadways, putting up barriers to ensure the scene is not contaminated and closing off roads at the time. [64]
3. In oral submissions the Plaintiff also relied on the decision of New South Wales v Napier [65] in support of an argument that police has a duty of care to prevent injury and they have 'control of the situation.' That decision was plainly distinguishable as it involved a control by a prison authority where the State had the capacity control prisoners and relationship to the Plaintiff was analogous to that of employer employee. [66]
4. In Graham Barclay Oysters Pty Ltd v Ryan, [67] Gleeson CJ stated: The powers and functions of the government of a polity are generally invested for the benefit of the general public. In the absence of a statutory direction, the mere existence of such a power in that government imposes no duty to exercise it for the protection of others. In that respect, its situation is analogous to a private citizen who, absent special circumstances, has no duty to take affirmative action to protect another person from harm [57]. Nor does the bare fact that the Executive government has exercised its powers from time to time create any duty to exercise its powers. Such exercises of power do not constitute "control" of an activity in the sense that that expression is used in the law of torts. They are merely particular exercises of powers that were invested in the Executive government for the benefit of the general public to be exercised at the discretion of the Executive government. Unless a particular exercise of power has increased the risk of harm to an individual, the Executive government of a polity does not ordinarily owe any common law duty to take reasonable care as to when and how it exercises its powers. No doubt circumstances may arise where conduct of the government, short of increasing a risk of harm, creates a duty of care. But such cases are less likely to arise than in the case of other public authorities. In particular, knowledge of specific risks of harm or the exercise of powers in particular situations is less likely to be a factor in creating a duty than in the case of an ordinary public authority. This is because the powers and functions of the Executive government are conferred for the benefit of the public generally and not for the benefit of individuals. [68]
5. It can be accepted that police were acting in their public duty in going to the site with a view to protecting passers-by from the danger of the scene. [69] It can also be accepted that as part of the coronial investigation scene order the police exercised functions that include seize and detain all or part of a thing that might provide evidence and taking possession of the remains and property of the deceased. [70] The statutory premise for these functions involved the exercise of discretion. No argument was presented that the terms, scope or purpose of the statutory regime erected or facilitated a relationship that in all the circumstances displayed sufficient characteristics answering the criteria of intervention by the tort of negligence. [71] In the case of the function of collecting the remains and property of the deceased it was for the purposes of the coronial investigation. The width of the class of persons for whose benefit those duties were exercised (being the public at large) is a factor against recognition of a duty of care specific to the Plaintiffs. [72]
6. There is no allegation that the police controlled the scene at the time the Plaintiffs visited the scene some eight months later.
7. The police had not created the risk of harm and did nothing that increased the risk. [73] Assumption of Responsibility
8. The Plaintiffs submitted that there was an assumed of responsibility based on the police having control of the accident scene and removal of the deceased's body and personal effects.
9. Unlike Spearpoint, [74] there is no pleading asserting that the Plaintiffs relied on police to take a particular course of action based on representations or positive conduct. Nor was it pleaded that the Plaintiffs altered their position based on of such reliance.
10. Nor did police assume any responsibility towards the Plaintiffs as individuals.
11. No allegation is made that the police had contact with the Plaintiffs, save for the fact that police investigated the death of their relative. There is no suggestion that at the time of injury police knew of the Plaintiffs' presence and the latter was relying on them. The case in my view is far removed from the kind of relationship which could invoke an implied assumption or undertaking of responsibility found in cases such as solicitor and client; teacher and pupil; and, banker and customer. [75]
12. At its highest, the pleading refers to a failure to warn the Plaintiffs of the possibility that some body parts had been left behind at the scene [76] and an expectation by police that the family could visit the scene of the accident. [77] As stated by Young CJ in Eq in New South Wales v Klein: it is very difficult indeed for a plaintiff to say that merely because the police were in charge of an operation they thereby impliedly assumed responsibility to any individual who was in the vicinity. [78]

Vulnerability

1. Vulnerability can be an important factor in deciding whether a duty of care is owed. In Hunter Area Health Service v Presland, Spigelman CJ explained:- The concept of vulnerability in this context is a reference to the inability of a particular person to protect himself or herself from the consequences of the conduct alleged to be negligent. (See Crimmins supra at 40 [100] and Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 78 ALJR 628 at [23] and [80]). [79]
2. In this instance, the Plaintiffs chose to attend the scene of the accident when they did.
3. Whilst acknowledging the Plaintiffs as the deceased's family members there was nothing in the relationship between the Plaintiffs and the police that place them in any different position to that of other members of the public who subsequently attended the scene. [80]

Nature and Activity of NSW Police

1. The police were acting as a public authority. Applying the principles in s 42 of the 2002 Act, their functions were limited by the financial and other resources that were reasonably available to the NSW police. I accept that the police were responding to an emergency requiring them to assist in the coordination of the scene of the accident, investigate the circumstances of the accident including speaking to the driver of the other vehicle, identify the deceased and control surrounding traffic. All of those functions need to be considered in determining whether a duty of care arises; not just the function of preserving and collecting evidence at the scene being the matter to which the proceedings relate.

Conflict/ Coherence

1. Police officers are charged with the primary responsibility of detecting and preventing crime such as to improve the general welfare of all members of society. When the NSW police attended the scene of the accident in the present case, their task was not only to remove the body from the scene, but to investigate the circumstances of the accident (including whether the driver of the other vehicle or the deceased was at fault as well as the identity of the deceased) and manage the emergency created by the accident. So much is apparent from Senior Constable Luke Murray's statement and the legislative provisions referred to. To impose the duty contended for which would require the NSW police officers attending the scene to devote additional resources in scanning the area to make sure that all the debris at the scene of the accident was removed would divert police from their statutory duties and obligations as defined in s 6 of the Police Act and set out above as well as their common law duty to enforce the criminal law
2. If potential liability were to be recognised it would open the door to action being brought against the police officers on the ground that they fail to properly clear scenes of accidents which may lead to police officers operating contrary to the public interest in performing their duties with speed, skill and dispatch. [81] The manner in which police investigations proceed, such as the present, must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example the breadth of the area to cordoned at the scene of the accident, whether it is appropriate or necessary to market identified (found at the scene of the accident and that is the most advantageous way to deploy the available resources at the scene. To create a duty contended for would require Courts to analyse the actions of police officers in performing their investigatory and emergency response functions for the purposes of determining the issue of negligence.
3. To find a duty in such circumstances would be create an artificial dividing line between operational and non-operational policing [82] or between investigative and administrative functions. [83] In my view policy considerations militate against the finding that a duty of care was owed in the circumstances.

CONCLUSION

1. I am satisfied that by the application of the salient features test, the Hill principle and the principles in s 42 of the 2002 Act the case pleaded is such that it is not reasonably arguable that a duty of care was owed by police to the Plaintiffs.
2. In the circumstances, I am satisfied that the proceedings do not give rise a reasonable cause of action.
3. No submission was advanced that in such circumstances the Court would not make the order sought on discretionary grounds. [84]
4. For these reasons, I order: 1. Proceedings 45950/2017, 45989/2017, 46009/2017 be dismissed pursuant to UCPR 13.4(b). 2. The Plaintiffs are to pay the Defendants' costs.

Dated: 28 November 2017 I Certify that this and the preceding pages are a true copy of the reasons for judgment of His Honour Judge Hatzistergos Associate: Jason Lu

Endnotes

1. Hereinafter referred to as the deceased
2. Statement of Claim at [4]
3. Statement of Claim at [1] - [2]
4. Statement of Claim at [3]
5. Affidavit of Sinead Westaway 16 June 2017, Annexure B and T 5.20 - .28
6. T 3.3
7. Defendant's written submissions at [3]
8. T 3.3
9. Statement of Claim at [15]
10. Annexure B to the Affidavit of Ms Sinead Westway dated 16 June 2017
11. Defendant's written submissions at [14]
12. [2014] NSWCA 405 at [196] - [200] (Gleeson JA with whom Beazley P and Barrett JA agreed)
13. Hereinafter the '1990 Act'
14. Wilson & Ors v State of New South Wales (2001) 53 NSWLR 407; [2001] NSWSC 869 at [41] (O'Keefe J)
15. Hereinafter the '2009 Act'
16. Hereinafter the '1989 Act'
17. Defendant's Written Submissions dated 29 June 2017 at [20]
18. State Emergency and Rescue Management Act 1989 (NSW) s 61(1)(f)
19. State Emergency and Rescue Management Act 1989 (NSW) s 61(1)(g)
20. Defendant's Written Submissions dated 29 June 2017 at [21] and FN 13: "See similarly 1990 Act s 213. However, no individual members of the NSW Police are sued in the present proceedings so those provisions do not apply here. Further, as to such exemptions see s 10(2) of the Law Reform (Vicarious Liability) Act 1983 (NSW), which provides that

'For the purposes of determining whether or not a person is vicariously liable in respect of a tort committed by another person, any statutory exemption conferred on that other person is to be disregarded.' See also State of New South Wales v Briggs [2016] NSWCA 344 at [205] (Leeming JA). 21. Hereinafter the '2002 Act' 22. (2009) 75 NSW LR 649; [2009] NSWCA 258 23. Defendant's written submissions at [54] 24. (2009) 75 NSWLR 649;[2009] NSWCA 258 25. Plaintiff's written submissions at [21(1)] 26. Plaintiff's written submissions at [21 (2)] 27. Plaintiff's written submissions at [35]-[36] 28. (2009) 75 NSWLR 649; [2009] NSWCA 258 at [102]-[104] 29. (2009) 75 NSWLR 649;[2009] NSWCA 258 at [172] 30. Tame v New South Wales 11 CLR 317; [2002] HCA 352 at [12] (Gleeson CJ) 31. [1989] AC 53, 59 (Lord Keith) 32. [1989] AC 53, 63 - 64 (Lord Keith) 33. [1989] AC 53, 65 (Lord Templeman) 34. (2001) 207 CLR 562; [2001] HCA 59 at [57] 35. See also: Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59 at [132] (McHugh) and [221] and [231] - [232] (Kirby J) and D'Orta Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [101] (McHugh) and Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 at [231]-[234] (Gummow and Kirby JJ) 36. (2004) 62 NSWLR 95; [2004] NSWCA 92 37. Hereinafter referred to as the ODPP 38. (2004) 62 NSWLR 95; [2004] NSWCA 92 at [50]-[51] 39. (2004) 62 NSWLR 95; [2004] NSWCA 92 at [63] 40. (2012) 7 ACTLR 142; [2012] ACTCA 52 41. (2012) 7 ACTLR 142; [2012] ACTCA 52 at [281] - [285] 42. (2012) 7 ACTLR 142; [2012] ACTCA 52 at [296] 43. (2006) 150 FCR 165; [2006] FCA 12 at 101 (Finn J) 44. Plaintiffs' written submissions at[41] 45. Defendant's written submissions at [31 (a)] 46. State of New South Wales v Tyszyk [2008] NSWCA 107 at [123]-[124] (Campbell JA) 47. Plaintiffs' written submissions at [39(a)] 48. Cran v State of New South Wales (2004) 62 NSWLR 95; [2004] NSWCA 92 at [51]-[52] (Santow JA). 49. Plaintiffs' written submissions at [39(b)] 50. (2001) 207 CLR 562; [2001] HCA 59 51. Thompson v Vincent and Others (2005) 153 A Crim R 577 at [154]-[155] (Mason P with whom Handley JA and Pearlman AJA agreed); State of New South Wales v Klein [2006] NSWCA 295 at [43] (Young CJ in Eq with whom Beazley and Santow JJA agreed) 52. Cran v State of New South Wales (2004) 62 NSWLR 95; [2004] NSWCA 92 at [63] (Santow JA) and at [73] (Ipp JA); Australian Capital Territory v Crowley and Others (2012) 7 ACTLR 142; [2012] ACTCA 52 (Crowley) at [286] (the Court) 53. Plaintiffs' written submissions at [39(c)] 54. (2004) 62 NSWLR 95; [2004] NSWCA 92 at [50]-[51] 55. (2004) 62 NSWLR 95; [2004] NSWCA 92 at [63] 56. (2004) 62 NSWLR 95; [2004] NSWCA 92 at [73] 57. (2004) 62 NSWLR 95; [2004] NSWCA 92 at [286] and [296] 58. Rush and Others v Commissioner of Police (2006) 150 FCR 165 at [91]-[99] (Finn J). 59. Defendant's written submissions at [31 (d)] 60. Plaintiffs' written submissions at [39 (d)] 61. T19.46-20.23 62. State of New South Wales v Spearpoint [2009] NSWCA 233 at [8]-[19] (IPP JA with whom Allsop ACJ and Beazley JA agreed) 63. T 21.19-.22 64. T 22.46-.28 65. [2002] NSWCA 402 66. New South Wales v Napier [2002] NSWCA 402 at [17]-[21] (Spigelman CJ) and [75]-[76] (Mason P) 67. (2002) 211 CLR 540; [2002] HCA 54 68. See also (2002) 211 CLR 540 and [2002] HCA 54 at [152] (Gummow and Hayne JJ) 69. 1989 Act s 61 70. 2009 Act ss 43(1)(m), (p) and (q) 71. Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 and [2002] HCA 54 at [146] (Gummow and Hayne JJ) 72. State of New South Wales v Tyszyk [2008] NSWCA 107 at [138] (Campbell JA with whom Mason P and Giles JA agreed) 73. State of New South Wales v Tyszyk [2008] NSWCA 107 74. State of New South Wales v Spearpoint [2009] NSWCA 233 at [8]-[19] (IPP JA with whom Allsop ACJ and Beazley JA agreed) 75. Cran v State of New South Wales (2004) 62 NSWLR 95; [2004] NSWCA 92 at [60] 76. Statement of Claim at [15g] 77. Statement of Claim at [13] 78. [2006] NSWCA 295 at [41] (Beazley and Santow JJA agreeing) 79. [2005] NSWCA 33; 63 NSWLR 22 at [19] 80. See also 1900 Act s 213 81. See Rickard v State of New South Wales [2010] NSWSC 151 at [78] (Hulme JA) 82. Australian Capital Territory v Crowley and Others (2012) 7 ACTLR 142; [2012] ACTCA 52 83. Cran v State of New South Wales (2004) 62 NSWLR 95; [2004] NSWCA 92 84. Shaw v New South Wales [2012] NSWCA 102 at [128]-[123] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 November 2017