Dear Colleagues;

Although there is no substantive legal issue resolved, I thought it might be of interest to some to note the decision of the High Court of Australia in New South Wales v DC [2017] HCA 22 (14 June 2017) http://www.austlii.edu.au/au/cases/cth/HCA/2017/22.html . The issues involved in the litigation were whether the State owed a duty of care to a child who its officers came to know was the subject of sexual abuse, to report that abuse to the police. It was claimed that if the abuse had been reported in a timely fashion, the abusing step-parent would have been locked up and later instances of abuse would not have occurred.

The trial judge at first instance, Campbell J, ruled that there was a duty of care that had been breached; however, he found no liability because he was not satisfied as to causation, not being persuaded that further abuse alleged to have occurred after the Department was notified did in fact occur: see TB v State of New South Wales and Quinn; DC v State of New South Wales and Quinn [2015] NSWSC 575 http://www.austlii.edu.au/au/cases/nsw/NSWSC/2015/575.html . On appeal in DC v State of New South Wales [2016] NSWCA 198 (10 August 2016) http://www.austlii.edu.au/au/cases/nsw/NSWCA/2016/198.html  the trial judge’s ruling on the duty point was upheld by a majority of the CA- Ward JA and Sackville AJA held that there was a duty of care, and in fact their Honours overturned Campbell J’s decision on the issue of causation, which meant that the plaintiffs succeeded in their claim for damages.

Basten JA gave what, with respect, was a powerful dissent on both issues, and in particular on the duty of care point held that it was inappropriate to impose a duty on the Department which meant that they were required to report matters to the police as soon as they became aware of them- dealing with families in crisis was a tricky business and the decision to report or not was a matter of discretion entrusted to trained Departmental officers. On this point his Honour also cited extensively from Michael v The Chief Constable of South Wales Police [2015] UKSC 2, including at [71] the following passage from Lord Toulson in that decision:

“[97] English law does not as a general rule impose liability on a defendant (D) for injury or damage to the person or property of a claimant (C) caused by the conduct of a third party (T): Smith v Littlewoods Organisation Ltd [1987] UKHL 3; [1987] AC 241, 270 (a Scottish appeal in which a large number of English and Scottish cases were reviewed). The fundamental reason, as Lord Goff explained, is that the common law does not generally impose liability for pure omissions. It is one thing to require a person who embarks on action which may harm others to exercise care. It is another matter to hold a person liable in damages for failing to prevent harm caused by someone else.”

 To come to the High Court appeal, the court initially granted special leave on two points; one was an issue about the extent of a (conceded) duty of care (“ground 2”) and the other concerned the question whether there was vicarious liability for acts of officers (“ground 3”). However, on the hearing of the substantive appeal it became apparent that there was a seriously unclear issue about vicarious liability, because the alleged failure to report had occurred in April 1983, and NSW law was not amended to make the State vicariously liable for actions of public servants until the commencement of the Law Reform (Vicarious Liability) Act 1983 (NSW) on 28 October 1983. Despite the fact that the State had conceded vicarious liability, the court decided to revoke special leave for “ground 3” during the course of the hearing (for those interested, the transcript is at State of New South Wales v DC & Anor [2017] HCATrans 100 (10 May 2017) http://www.austlii.edu.au/au/cases/cth/HCATrans/2017/100.html . They allowed the argument to proceed on the duty of care point, but in this final disposition held that, by virtue of the State’s concessions on the point, the remaining issues did not squarely raise the questions of principle that the State sought leave to determine (see para [19]). The case was “not an appropriate vehicle for considering the scope or extent of the common law duty owed in the exercise of the powers under the [child welfare legislation].”- para [23].

Good outcome for the plaintiffs; but no guidance for future cases. I personally found Basten JA’s comments in the Court of Appeal quite persuasive and would like to have seen what the High Court thought.

Regards

Neil

 

 

 

 

 

 

NEIL FOSTER

Associate Professor

Newcastle Law School

Faculty of Business and Law

MC177 McMullin Building

 

T: +61 2 49217430

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