Date: Tue, 31 Jan 2006 11:50:42 +1100

From: Neil Foster

Subject: Young v Bella

Dear Colleagues;

I found the Supreme Court of Canada decision on 27 Jan 2006 in Young v Bella 2006 SCC 3 fascinating. For those who haven't come across it yet - in a bizarre set of circumstances a Uni social work student who submitted an essay on child sexual abuse with an appendix containing a "first person account" by an abuser (which she had copied without proper footnoting from a book) was suspected by her lecturer of being a child abuser. Without her knowledge this suspicion was reported to child welfare authorities who put her on a "black list" and hence (not surprisingly) she had problems getting work in the field after graduating! She sued in defamation and negligence when the error had been discovered, and while the action in defamation failed she was awarded some $840,000 in damages in negligence, a verdict which the SCC upheld.

As an academic at the beginning (here in Australia) of the academic year the case is a good reminder of the importance of taking my responsibility for student welfare seriously; eg

34 Those whose professional responsibilities include the exercise of such power over the careers and future lives of fee-paying students are required to take the necessary care to get their facts straight before taking a potential career-ending action in relation to a student.

It is a salutary exercise to read the account of how the accusation snowballed from a "gut feeling" of the student's lecturer.

More to the point for this list I would be interested in other's comments on the tort questions raised. The SCC accepts at [56] that a case in negligence is possible despite it looking like a classic defamation case, and this is a question the High Court of Australia hasn't definitively addressed. But we do have the decision in Sullivan v Moody (2001) 207 CLR 562 from a few years ago rejecting a negligence claim in a case of reporting child sexual abuse, and at para [54] of the majority judgement strongly hinting that a negligence claim could not be brought where defamation was the "proper" claim. (I see from Balkin & Davis 3rd ed at 546-547 that in NZ a similar view has been taken in Midland Metals Overseas Pte Ltd v Christchurch Press Co Ltd [2002] 2 NZLR 289.)

I must say that I think, however, that even the HCA might have upheld the decision in Young v Bella - as the SCC says, there should be protection against suit if there is reason to report even something which is just a suspicion, but here there was not even enough material to have a reasonable suspicion! I suppose the case may raise the defamation/negligence clash in this way - that is, was the defamation claim rejected because the report was in some sense made under claim of "qualified privilege"? Should this aspect of the defamation law have been able to be circumvented in the negligence claim? I tend to think (without doing the work to check this out yet!) that a defence of qualified privilege should also have failed here.

Regards
Neil Foster

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

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