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

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Fuller-Wilson v State of New South Wales [2018] NSWCA 218 Hearing dates: 20 August 2018 Decision date: 03 October 2018 Before: Basten JA at [1]; White JA at [90]; Emmett AJA at [96] Decision: (1) Grant the applicants leave to appeal from the judgment of the District Court dismissing their claims.

(2) Allow the appeal and set aside the orders entered on 1 December 2017.

(3) In place thereof, order that – (a) the defendant's motion filed 29 May 2017 be dismissed; (b) the defendant pay the plaintiffs' costs of the motion.

(4) Order that the respondent pay the applicants/appellants' costs in this Court. Catchwords: 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