CLT v CONNON & ORS No. SCGRG-89-2528 [2000] SASC 223

Supreme Court of SA|2000-07-06|Before: Doyle CJ, Gray JJ

Judgment No. [2000] SASC 223

On Appeal from JUDGE BOWEN PAIN, MASTER OF THE SUPREME COURT

I do not propose to repeat the facts or to set out the relevant statutory provisions. They can be found in the reasons of Gray J.

An application was made for an order striking out the plaintiff's claim and entering judgment for the defendants. That was the order made by the Master. The order was made pursuant to r 3.09 and r 25.04 of the Supreme Court Rules. The order is to be made only if it clear that the duty of care upon which the plaintiff relies cannot be shown to exist.

The plaintiff concedes that the decision of this Court in Hillman cannot be distinguished.

I agree with Gray J that the reliance placed upon the concept of proximity in Hillman makes it appropriate for this Court to reconsider the reasoning of the Full Court in that case. That is so because, as Gray J points out, in subsequent decisions the High Court has made it clear that the use of proximity as a decisive or significant factor in determining whether a duty of care exists, no longer commands majority support. No single approach to determining the existence of a duty of care in a novel case, which commands majority support, has emerged. It is appropriate for this Court to consider the various matters and approaches identified in decisions of the High Court in order to decide a case like the present one. This is not to say that the decision in Hillman is taken to be no longer good law. It is a question of whether later authority indicates that the matters relied upon in Hillman, apart from considerations of proximity, would no longer lead to the conclusion reached in Hillman.

I begin by identifying, as precisely as I can, the duty of care which the plaintiff alleges was owed to him and breached by the defendants. If the claim is to be struck out, it must be clear that this particular duty of care cannot be supported.

It is not easy to identify that duty with precision. In part this is due to the fact that the plaintiff pleads a duty of care, but does not plead in any detail the circumstances of the relationship said to give rise to the duty. To some extent these are to be gleaned from the facts that are pleaded as background facts, and to some extent from the allegations of breach of duty. Only rarely these days does a statement of claim plead with any precision the circumstances from which a duty of care arises, and the precise nature and scope of the duty. Cases like Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 in which the adequacy of the pleading of a duty of care is subjected to scrutiny, are relatively rare.

I turn to the allegations in the Statement of Claim.

The first and second defendants are medical practitioners. Each of them carried out an examination of a child or children of the plaintiff. My understanding is that it was common ground that the examination was carried out by them at the instigation of a person or persons employed by the Government of the State in the Department of Community Welfare ("the Department"). It is also common ground that the examination was conducted to determine whether the children had been sexually abused. Each defendant concluded that the child or children examined had been subjected to sexual abuse, or that there was a strong possibility that the child had been sexually abused. That conclusion was reached by the defendant on the basis of the examination carried out by the defendant, which examination is alleged to have involved complete or substantial reliance upon certain tests and observations made by the defendant.

In short, the allegation by the plaintiff is that the defendants in their capacity as medical practitioners examined children of the plaintiff, with a view to determining whether they had been subjected to sexual abuse, and after conducting that medical examination formed the conclusion that the child had been subjected to sexual abuse or that there was a strong possibility that that had happened. The plaintiff pleads that each defendant informed the plaintiff's wife and employees of the Department of that conclusion. The plaintiff also pleads that each defendant did so knowing that the consequence "may be" that the plaintiff would be denied access to the child, would suffer "great emotional distress", and that the police would investigate charging the plaintiff with sexual abuse of the child.

For the purposes of the application to strike out the action, all of these facts must be taken to be established.

The plaintiff has also pleaded that each defendant conducted the examination "wrongfully and carelessly" in certain specified respects, and failed to consider certain matters. Once again, it must be taken to be proved that the conclusion reached by each defendant was reached on unreliable grounds.

In short, it is a case in which the plaintiff alleges that the first and second defendants carelessly reached a conclusion that the plaintiff's children had been or probably had been subjected to sexual abuse, and reported that conclusion to members of the Department, in circumstances in which the plaintiff would be regarded as the probable or possible perpetrator of that abuse.

It is in that context that the duty of care is asserted. It is pleaded in virtually identical terms in each case. It is that the defendant:

".... owed a duty of care to the plaintiff to carry out her duties and responsibilities and in particular the examination and diagnoses of persons and in particular children suspected of having been sexually abused and in particular [N], with due care, skill, discretion and diligence."

It may be deduced from what I have said of the pleadings that the plaintiff must be relying on the fact that he is the father of the children, a person who had access to them, and a likely suspect in the event of a finding that the children had been sexually abused.

I put to one side the position of the third defendant. The only liability asserted on its part is vicarious liability for the negligence of the first and second defendants. The fourth defendant, the State, is also said to be vicariously liable for the negligence of the first two defendants.

The State is also alleged to be liable on an independent basis. It is claimed that the employees of the Department owed the plaintiff a duty of care in the course of their employment. It is said that by its servants or agents the State:

"... owed the plaintiff a duty of care to carry out its duties and responsibilities pursuant to the Community Welfare Act 1972 as amended and its duties and responsibilities generally and in particular in relation to the sexual abuse of children and in particular [N][W] and [A] with due care, skill, discretion and diligence."

The meaning of this pleading emerges a little more clearly from the particulars of negligence that follow. I will attempt to shorten the particulars by categorising them. It is alleged that employees of the Department gathered and used information about possible sexual abuse of the children without making adequate enquiry as to those facts, without exercising proper care and without following appropriate procedures for such cases. It is alleged that they relied upon the diagnosis made by the first two defendants when they should have known that those diagnoses were unreliable and were made negligently. It is alleged that the employees of the Department failed to establish appropriate protocols for the diagnosis of sexual abuse of children. It is alleged that they failed to establish proper procedures to validate diagnoses of sexual abuse or to deal with allegations of sexual abuse and information in relation to sexual abuse.

I think it is a fair summary of the pleading to say that it indicates that the duty of care alleged is a duty owed to the plaintiff that required the State, by its employees in the Department, to establish and to follow sound procedures for dealing with allegations of and investigations relating to sexual abuse of children, and for dealing with medical examinations to determine whether sexual abuse had occurred.

Finally, the plaintiff pleads that the employees of the Department asked the police to investigate the plaintiff's involvement in relation to the sexual abuse of the children, and took steps to ensure that the plaintiff would not have access to the children, and did these things knowing that this would cause the plaintiff "great anguish and distress".

Once again, the present case is to be considered on the basis that these allegations are made out.

There are some general points that can be made about the duty of care which the plaintiff asserts in the present case.

The plaintiff does not seek to impose a duty of care which would impose upon the defendants a duty to take affirmative action to avert harm to the plaintiff. The duty of care which the plaintiff seeks to impose is one which arises when the doctor defendants were examining the children and when the employees of the Department were considering and dealing with the possibility of children having been sexually abused.

The plaintiff does not seek to impose a duty of care that would require the defendants to exercise a statutory power or to refrain from exercising a statutory power conferred on any of the defendants. Although the plaintiff complains that the doctors wrongfully notified the Department in pursuance of their obligation under s 91(1) of the Community Welfare Act 1972 ("the Act"), the complaint is only that they acted under that section on the basis of a carelessly reached conclusion.

The duty of care that the plaintiff seeks to impose does not really affect the exercise of statutory powers or specific statutory duties. As far as I am aware, the only statutory obligation that fell upon the doctor defendants was the obligation under s 91(1) to report the existence of a suspicion formed on reasonable grounds that an offence had been committed against the children. Other than that, in all relevant respects they acted simply as doctors to whom a child was brought for the purposes of an examination, there being a suggestion of sexual abuse. No other statutory provision was identified that bears upon the conduct of the doctors.

As to the employees of the Department, while they were in a general sense acting pursuant to the Act, and subject to the general obligation to treat the interests of the children as paramount, and to have regard to the other matters specified by s 25 of the Act, once again no specific provision of the Act was pointed to which imposed upon any of them a duty that required any specific action from them.

In other words, while the suggested duty arises in the context of the provisions of the Act, those provisions really do no more than form an important part of the background against which the Court must consider whether to impose a common law duty of care.

The case is one in which the plaintiff complains of conduct by the defendants (the forming of an opinion by the doctors, the handling of the case by the employees of the Department) as a result of which it was, on the facts as they must be assumed to be, reasonably foreseeable that the relevant conduct would result in injury to the plaintiff in the form of emotional distress. Quite apart from the pleadings, it seems to me readily foreseeable that a person against whom allegations of sexual abuse of children are made may suffer injury as a result of the allegation being made.

On the other hand, there is no allegation that the conduct of the defendant doctors was the direct cause of harm to the plaintiff. The Statement of Claim is rather vague on this, but it seems likely that the plaintiff's distress and the "anxiety depressive state" which it is alleged he developed are attributable to the action of the police in investigating his guilt and laying charges, and the conduct of employees of the Department in depriving him of access to the children.

As Gray J points out, no single approach to the determination of the existence of a duty of care in a novel case commands the support of the majority of the High Court.

The issue was most recently considered in the context of statutory authorities in Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 74 ALJR 1.

In my opinion, Crimmins was a different case, and can be put to one side except to the extent that it provides some general guidance in determining whether a duty of care exists. In that case the plaintiff relied upon a duty of care said to be owed to it by an Authority, of which the Committee was the successor. The Authority owed its existence and powers to a statute of the Commonwealth Parliament. The claimed duty of care to the plaintiff was one that required the Authority to exercise its statutory powers to take reasonable steps to prevent a foreseeable risk of injury to the health of the plaintiff while he was engaged in the stevedoring industry over which the Authority had statutory powers: Gaudron J at [17].

While the issue for the High Court was the existence of a common law duty of care, in Crimmins the provisions of the relevant statute were critical. They were critical because in those provisions were located the functions, powers and obligations which gave rise to a relationship between the plaintiff and the Authority such that a majority of the Court considered that a common law duty of care did arise to take care in relation to the exercise or non-exercise of its powers and functions: Gaudron J at [25], McHugh J at [93] Gummow J at [161]-[163]. The imposition of a common law duty of care in that case was necessarily the imposition of a duty that required for its discharge the exercise of statutory powers conferred upon the Authority.

In that setting the High Court had to satisfy itself first of all that the terms of the statute did not indicate an intention to exclude a common law duty of care: Gleeson CJ at [3], Gaudron J at [27], Kirby J at [203]. At this stage of the matter the exercise is, as I understand the reasons of the High Court in Crimmins, an exercise in statutory interpretation. The object is to ascertain whether, expressly or by necessary implication, the terms of the relevant statute are inconsistent with and negate the imposition of a common law duty of care of the kind alleged.

If, as in Crimmins, the conclusion is reached that the relevant statute does not exclude or negate the imposition of a common law duty of care, the Court must then apply an acceptable approach at common law to the determination of the question of whether a duty of care is in fact to be imposed. The provisions of the statute will again be relevant. But now they are part of the background against which the Court determines whether or not to impose a duty of care. At this stage the nature of the duties imposed by the statute, the relationship between the plaintiff and the person or body upon whom the duty of care is sought to be imposed, the purposes and object of the statutory scheme and other matters will be relevant. It is not just a matter of deciding whether the nature of the statutory scheme is such that it is inappropriate to impose a duty of care in the particular case. It is a question of whether, considering the relationship between the plaintiff and the defendants, including the features of that relationship attributable to the relevant statute, it is appropriate on ordinary common law principles to impose a duty of care.

The statutory provisions were more important in Crimmins than they are in the present case, because in Crimmins the Authority was a creature of statute, its powers and functions were derived entirely from statute, and the duty of care imposed upon it was necessarily a duty of care involving the exercise of statutory powers.

As I have earlier explained, in the present case the Act is an important part of the background, but the duty of care which is asserted does not draw its source from provisions of the Act, or necessarily involve the exercise of powers or the discharge of duties under the Act.

Does the Act negate a common law duty of care in the present case?

The relevant provisions of the Act are set out in Hillman, and a number of the important ones are set out in the reasons of Gray J.

In my opinion there is nothing to be found in the Act which, as a matter of statutory interpretation, indicates an implied intention to exclude the imposition of a duty of care in the present case.

Section 10 of the Act states the statutory objectives of the Minister and of the Department in fairly general terms. They are to promote the welfare of the community and of individuals, by, among other things, providing services to assist children to overcome disadvantages suffered by them. Section 25 of the Act requires a person dealing with a child under the relevant part of the Act to treat the interests of the child as paramount, but that person must also promote a satisfactory relationship between the child and other members of the child's family. The same part of the Act makes provision for putting children under the guardianship of the Minister, and for establishing facilities for young offenders and children in need of care. The same Part contains sections providing for the establishment of child protection panels, and also contains s 91 which contains the reporting obligations earlier referred to by me.

To my mind these provisions are really no more than a statement that the Minister and employees in the Department must act to promote the interests and welfare of children, by reference to fairly general criteria, and as well there are provisions for the establishment of facilities and programs for children in need of protection.

In the exercise of the statutory functions the interests of children affected are paramount.

It is not clear to me that, when the doctors were examining the children, they were dealing with the children under or by virtue of the relevant part of the Act, thus attracting the provisions of s 25. But even if they were, neither this provision nor the reporting obligation seem to me to be necessarily inconsistent with the imposition of a duty of care on the doctors when conducting the examination. As to the employees of the Department, in the same way it seems to me that the same provisions are not necessarily inconsistent with the imposition of a duty of care owed to the family members of children with whom the employees deal in the discharge of their functions under the Act.

For those reasons my conclusion is that the Act does not by implication exclude the imposition of the duty of care alleged by the plaintiff.

The conclusion that I have just reached is only the beginning of the enquiry. The issue remains of whether a duty of care should be imposed.

There are a number of matters that might be said to support the imposition of a duty of care. As I have earlier pointed out, the duty of care is sought to be imposed in relation to affirmative conduct by the defendants. It is not a duty of care breached by omission to act. The duty of care does not require the defendants to exercise statutory powers available to them. It is also significant that it was foreseeable that a careless diagnosis or careless handling of the allegations of abuse would result in injury to the plaintiff and loss of contact with the children. In light of the pleadings, the defendants must be taken to have known this.

It is also relevant, I consider, that the duty alleged as against the first and second defendant is, fundamentally, a duty to act competently when exercising their skills as medical practitioners. The plaintiff does not allege any further duty. As I read the particulars of negligence, for the purpose of throwing light on the nature of the duty alleged, the complaint is that the conclusion that sexual abuse had occurred was reached on unsound grounds. The plaintiff does not seek to impose a duty to inform the plaintiff of what was occurring, to make enquiries of the plaintiff or to consider the interests of the plaintiff in particular. The closest the allegations come to that is to complain of a failure to make adequate enquiries as to the family background. To impose the asserted duty does not add to or increase the complexity of the task undertaken by the doctors.

It can also be said that the plaintiff was vulnerable to the risk of harm in the sense that there was nothing that he could reasonably be expected to do to safeguard himself against the consequences of a carelessly reached conclusion or careless handling of the allegations.

The harm suffered by the plaintiff was not a direct result of what the doctors did. I have already explained why that is so. It was a consequence of action taken by others relying upon their conclusions.

The employees of the Department are to some extent in the same position. They had a responsibility to report the matter to the police, and to make available information in their possession. Presumably, to a significant extent, the plaintiff's medical condition is attributable to the response of the police to that information. However, the plaintiff does allege as well that his condition is attributable to loss of contact with his children, which I assume to be the result of action of the employees of the Department.

It is likely that imposing the asserted duty of care will give rise to complex causation issues.

The relationship between the doctors and the children is not easily defined. As I said earlier, I understand that the children were examined at the instigation of employees of the Department. If the doctors formed a reasonable suspicion of a relevant offence, they were under a statutory obligation to report that matter. That obligation is imposed in the interests of the children. The circumstances might give rise to a professional responsibility or a duty of care to the State or to the children, but are not obviously suggestive of a duty of care to the plaintiff.

The employees of the Department were certainly obliged to put the interests of the children first in their dealings with them. It was appropriate for them to inform the police of allegations of child abuse that came to their attention, unless those allegations were obviously unreliable. However, they were also obliged to consider members of the family.

The present case is not, to my mind, analogous to any category of case in which existing authority binding this Court would impose a duty of care. By this I mean that the relationship between the doctors and the plaintiff and the employees of the Department and the plaintiff is not analogous to any existing relationship in which a similar duty of care exists. The absence of relevant analogies is of some significance.

Generally, professionals such as doctors and social workers incur a liability to those for whom and to whom they make their skills available, and in whose interest they act. The plaintiff is not in that relationship with the first and second defendants, or with the employees of the Department. In fact, the defendants are in a position in which the plaintiff has a potentially adverse interest to that of the child who is their primary concern.

If a duty of care is imposed, there is the potential for liability that has an element of indeterminacy. Is the duty owed to any potential suspect, or only to known suspects, or only to family members?

When one looks more broadly at the situation, it appears to me that there are features of the relationship between the employees of the Department and the plaintiff that argue strongly against the imposition of a duty of care.

In reaching this conclusion I respectfully take much the same approach as was taken by the House of Lords in X (Minors) v Bedfordshire County Council [1995] UKHL 9; [1995] 2 AC 633. Cases involving possible or suspected sexual and physical abuse of children are notoriously cases of great difficulty and require considerable care and delicacy in their handling. Parents, or persons in the position of parents, will often be potential suspects, and usually important witnesses. Their position in any such case is a particularly complex one. They are likely to be at one and the same time a potential object of suspicion, potential witnesses for the prosecution if one ensues, but also persons whose position must be considered in the interests of the child.

Persons involved in considering the interests of the child, and protection of the child, such as employees of the Department, when allegations are made of sexual abuse, or when a suspicion of sexual abuse arises, have a particularly difficult task to discharge. Under the Act the employees of the Department must give priority to the interests of the child, but at the same time must consider the family relationship and the long term interests of the child in the family relationship. They have to consider the impact of their own conduct on the investigation of the offence. They have to consider the short term protection of the child, longer term protection of the child and the longer term welfare of the child. Some decisions have to be made more or less as soon as an allegation is made, others as the matter unfolds. Decisions have to be made on limited information. Discretion must be exercised for obvious reasons in relation to information given to family members, and in dealing with family members. The situation will often be one in which strong feelings will be aroused.

For these reasons, and the reasons identified by Lord Browne-Wilkinson in Bedfordshire, my view is that to impose on employees of the Department a duty of care to the parent of a child when there is an allegation of sexual abuse and the parent is a possible suspect, the duty of care relating to the conduct of those employees in their management of the complex situation that follows, would be to involve the Court in the review of difficult issues which the Court is ill-placed to review, and which are unlikely to be satisfactorily resolved in a forensic context. In addition, it is obvious that matters of belief, judgment, impression, and so on will play a large part in the making of decisions. The imposition of a duty of care might easily encourage a degree of caution on the part of employees of the Department that would, in the longer term, be contrary to the interests of children requiring protection. The imposition of a duty of care would not sit at all easily with treating the interests of the child as paramount.

In this respect I largely agree with the reasons of Gray J but, unlike him, I do not find in the terms of the Act an intention to exclude the imposition of a duty of care. My conclusion is that in view of the provisions of the Act, and the relationship between the employees of the Department and the plaintiff, there are sound reasons of policy not to impose on the employees of the Department the duty of care which the plaintiff alleges. For those reasons I would dismiss the appeal in relation to the order of the Master so far as it relates to the action against employees of the Department.

The position of the doctors is not so easily resolved. I have already referred to factors that argue for and against the imposition of a duty of care. As I have already said, essentially the duty alleged as against them is simply a duty that requires them to act competently when examining a child and forming their conclusion as to sexual abuse having occurred. The defendant doctors were not in the delicate and difficult position of the employees of the Department. Those doctors had to do no more than consider the information provided to them and carry out an examination and, if they thought fit, seek further information. They did not have to make decisions about the care of the children subsequently, or about the way in which the allegations would be dealt with.

However, as Gray J says, the relationship of the doctors to the children, is unusual. The child is in a position analogous to a patient, although the child is unable to act for himself or herself. Their primary duty is surely to the State which requests the examination and to the child whom they are asked to examine.

I can imagine that a breach of a duty of care if owed to a child might also give rise to a breach of duty of care to a parent of the child. For example, it is conceivable that negligent treatment of a child might give rise to a claim by a parent of a child for nervous shock attributable to the injury inflicted on the child. But it is another thing to say that a carelessly reached conclusion in relation to the child in a case like this is a breach of a duty of care owed to the child, let alone a breach of a distinct duty of care owed to a parent of the child.

It is true that to impose a duty of care on the doctors would involve the Court in a familiar task, reviewing the competence with which an examination was conducted and a medical conclusion was reached. Nor should judicial scrutiny of the examination have adverse effects upon the manner in which the doctors performed their tasks. The doctors surely realised that in any event there was a good chance that they would be cross-examined in any criminal proceedings against an alleged offender. The imposition of a duty of care would not add in any way to what was already required of the doctors.

But there are the other matters identified by me that point the other way.

In Bedfordshire the psychiatrists were retained by the local authority to advise the local authority, and not to advise the plaintiffs (in that case the plaintiffs were the child the subject of allegations of sexual abuse and the child's mother). Lord Browne-Wilkinson (at 752) emphasised that the only obligation that the doctors undertook expressly was an obligation to the local authority. So, in the present case, it seems to me that in examining the child the doctors undertook an obligation to the Minister or to the employees of the Department at whose request they acted, and possibly (it is not necessary to decide) to the child. The parents of the child, or at least the parent who was a potential suspect for a conclusion of sexual abuse to be reached, could hardly be regarded as a person whose interests they could be expected or required by law to consider.

The fact that the defendant doctors were retained by employees of the Department is not of itself enough to exclude a duty of care to another person, or to the plaintiff in particular. But they were not retained in a situation in which the plaintiff was relying, or reasonably relying, on them to take care to avoid harm to him. The defendant doctors were not in the same position as a doctor treating a patient, as far as I can tell. Their advice was sought for the purpose of determining whether action should be taken by employees of the Department to protect the children, and, presumably, for the purpose of determining whether the police should be informed of suspected child abuse. The defendant doctors were not in a position adverse to the plaintiff. They were simply asked to use their professional skill and judgment. But they were asked to conduct the examination in the context of allegations or suspicions of child abuse directed at or including the plaintiff. They were not advising the children, or persons responsible for them, about what was best in the interests of the children. They were simply performing an examination and reporting a view to employees of the Department, to act on as they saw fit. It seems to me that in this situation it would be anomalous to treat them as undertaking responsibility, in relation to the expression of their opinions, to persons who might be affected by the opinions that they expressed. As well, although the asserted duty is confined to the examination itself, if the duty is admitted it would be difficult to confine it to that. It is quite likely that, should they find that sexual abuse has occurred or may have occurred, they will be involved in further investigations and in the gathering of evidence. Bearing that in mind, it seems anomalous to impose a duty of care to a possible suspect. In that respect, the position of the defendant doctors seems to me to be closely analogous to the position of a pathologist conducting a post mortem in the context of charges possibly being laid arising out of the death of the deceased. As far as I am aware it has never been suggested that a pathologist conducting a post mortem owes a duty of care, in the conduct of the post mortem, to persons who are likely to be charged or may be charged as a result of the death.

The emphasis put on these matters by the House of Lords in Bedfordshire is a factor that influences me.

I accept that the difficulties in the way of imposing a duty of care on the defendant doctors is not as great as the difficulty in the way of imposing a duty of care on the employees of the Department. Nevertheless, taking everything into account I am of the view that it is not appropriate to impose a duty of care in this situation.

For those reasons I would dismiss the appeal in relation to the action against the defendant doctors.

In preparing these reasons I have had the benefit of considering the views of the Court of Appeal of New Zealand in Attorney-General v Prince and Gardner [1998] 1 NZLR 262 and of Studdert J in TC v State of New South Wales [1999] NSWSC 1; (1999) Aust Torts Reports 81-500. Each case is distinguishable, but I have found helpful the analysis that they contain.

DUGGAN J. I agree that this appeal should be dismissed for the reasons given by Gray J.

GRAY J. Devastating consequences can follow an incorrect finding that a child has been sexually abused. Those consequences flow not only to the person against whom the findings are made, but also to the child and the family. A father (if wrongly accused) is entitled to feel a sense of outrage and have a need for solace and vindication. It is impossible not to feel sympathy for such a person. This appeal raises the issue as to whether any duties of care are owed by a statutory authority its employees or agents to a person wrongly accused.

The plaintiff had been charged with criminal offences alleging sexual abuse of his three children. The charges followed medical examinations of the children and subsequent reports to the Department for Community Welfare ("the Department"). concerning alleged sexual abuse by the plaintiff. In time all charges were either discontinued or the subject of nolle prosequi. It is asserted that as a result the plaintiff's relationship with his children has been significantly impaired if not ruined. He sued claiming damages alleging a breach of common law duty of care. The defendants include two medical practitioners who were involved in the examination of and reporting in respect to the children. The other defendants are the Hospital which provided the Sexual Assault Referral Centre where the examinations of the children were conducted and the State of South Australia whose Department for Community Welfare was charged under the Community Welfare Act 1972 ("the Act") with responsibility in regard to the welfare of allegedly abused children.

77 In the plaintiff's path stood the decision of this Court in Hillman v Black[1]. The defendants sought to bring the matter to an end by making an application to strike out the claim as disclosing no cause of action. A Master hearing the application on 23 September 1999 took the view that he was bound by Hillman v Black and struck out the action and entered judgment for the defendants. The relevant principles governing such an application are clearly established; is the plea "so obviously untenable that it cannot possibly succeed?" (Esanda Finance Corporation Ltd v Peat Marwick Hungerfords) [2]. The plaintiff conceded that Hillman v Black could not be distinguished on the facts and that the Master was bound to strike out the action.

78 The plaintiff has appealed from the order and judgment.

79 Hillman v Black concerned events in 1987. The plaintiff's Statement of Claim addresses events occurring at or about the same time when the identical legislative scheme was in place.

80 In Hillman v Black the trial judge Duggan J, and on appeal, Matheson and Prior JJ considered proximity to be an essential criterion for the establishment of a duty of care.

"And like the trial judge, I consider the authorities, including recent High Court dicta, compel the conclusion that the necessary relationship of proximity was not proved."[3]

" It must be concluded that no duty of care is owed to the alleged perpetrator of sexual abuse by doctors and officers of the Department because there is, on policy grounds, no relationship of proximity between such a person and them."[4]

" At the end of the day, whether the matter is to be approached within the rubric of the test of proximity or as a separate consideration extrinsic to that test, the question nonetheless comes down to one of statutory construction."

The High Court has recently delivered judgments which the plaintiff submitted have effected a change of the law such that this Court should reconsider the decision in Hillman v Black. Those judgments relate to the criteria by which a duty of care may be established.

83 In Perre v Apand Pty Ltd [5] the majority of the Court confirmed the rejection of proximity as an essential criterion for the existence of a duty of care. As McHugh J at [76] said:-

"Indeed, since the fall of proximity, the Court has not made any authoritative statement as to what is to be the correct approach for determining the duty of care question. ... At all events, the differing views of the members of this Court in the present case suggest that the search for a unifying element may be a long one."

"It may well be that, at this stage, the notion of proximity can serve no purpose beyond signifying that it is necessary to identify a factor or factors of special significance in addition to the foreseeability of harm before the law will impose liability for the negligent infliction of economic loss."

84 Although the High Court has moved away from the doctrine of proximity,[6] no unified approach has been established to take its place. In Perre v Apand Pty Ltd; Gleeson CJ and Gummow J considered that no general formula could be devised, and adopted the approach of isolating a number of salient features which combined to constitute a sufficiently close relationship to give rise to a duty of care. McHugh and Hayne JJ favoured an incremental approach. Callinan J considered a number of factors and found that their combination gave rise to a duty of care and suggested that the Court should move incrementally. Gaudron J considered whether a legally protected right of the plaintiff had been infringed. Kirby J favoured the three stage Caparo test.

85 The factors identified by each member of the Court are not dissimilar. All judges recognised public policy factors as capable of excluding or negativing a duty of care.

86 The Court most recently considered the essential criterion for establishing a duty of care in Crimmins v Stevedoring Industry Finance Committee[7] but still no unified approach has been established. The decision in Crimmins v SIFC, which I will discuss later, is of particular importance as the Court addressed the issue of a duty owing by a statutory authority and whether the statutory scheme implied an intention to exclude a common law duty.

87 In Hillman v Black, although proximity was treated by the trial judge and by two members of the Court of Appeal as being an essential criterion, the factors considered by the Court were substantially the same factors identified by the High Court in Perre v Apand Pty Ltd and Crimmins v SIFC as being relevant for consideration.

88 However, there is tension between the rejection of proximity as an essential criterion by the High Court and its treatment as critical in Hillman v Black. In my view this court should reconsider the issue.

89 The plaintiff's claim as pleaded can be summarised as follows.

90 The plaintiff and his former wife are the parents of N, born on 5 May 1982, WT born on 19 August 1980 and A born on 30 January 1978.

91 On 13 November 1986 N attended with his mother at the Sexual Assault Referral Centre, a centre conducted by the 3rd defendant, a hospital. He was examined by the first defendant, a medical practitioner, who formed the opinion that NT had been subjected to sexual and in particular anal abuse.

92 The first defendant recommended to the plaintiff's former wife that their other two children be medically examined for the purpose of determining whether they had been sexually abused and in particular by the plaintiff.

93 The first defendant informed officers of the Department of the findings of sexual abuse in relation to N.

94 The Department, an agency of the fourth defendant, requested that police investigations be carried out with a view to possible charges of sexual abuse of N and in particular by the plaintiff. The Department also took steps to ensure that N would not return to the care of the plaintiff and limited the plaintiff's access to N. The fourth defendant put in place disclosure therapy.

95 On 14 October 1986 the second defendant interviewed and examined A and concluded that there were recognised indicators of sexual abuse and that there was a strong possibility that A had also been sexually abused. On the same occasion a social worker employed by the Department interviewed A.

96 On 25 November 1986 the plaintiff was charged with offences against NT pursuant to s 49 and s 72 of the Criminal Law Consolidation Act, but on 20 August 1987 a Magistrate found that the plaintiff had no case to answer in relation to those charges.

97 In November and December 1986 the second defendant, a medical practitioner, examined W at the Sexual Assault Referral Centre and concluded that W had been subjected to attempted anal penetration. On the same occasions W was interviewed by a social worker employed by the Department.

98 The plaintiff was further charged on 22 December 1987 with an offence against NT pursuant to s 49 of the Criminal Law Consolidation Act but on 16 January 1989 the Crown Prosecutor entered a nolle prosequi against the plaintiff in the Supreme Court.

99 The plaintiff claims that the first and second defendants owed a duty of care to the plaintiff. The particular pleas are as follows:-

"The first defendant owed a duty of care to the plaintiff to carry out her duties and responsibilities and in particular the examination and diagnoses of persons and in particular children suspected of having been sexually abused and in particular N..., with due care, skill, discretion and diligence." "The second defendant owed a duty of care to the plaintiff to carry on her duties and responsibilities and in particular the examination and diagnosis of persons and in particular children suspected of having been sexually abused and further in particular W... and A... with due care skill discretion and diligence."

In the further alternative the plaintiff claims that the fourth defendant owed a duty of care to the plaintiff. The particular plea is as follows:-

"The fourth defendant by its servants or agents or employees owed the plaintiff a duty of care to carry out its duties and responsibilities pursuant to the Community Welfare Act 1972 as amended and its duties and responsibilities generally and in particular in relation to the sexual abuse of children and in particular N..., W... and A... with due care, skill, discretion and diligence."

The plaintiff complains that both the first and second defendants acted in breach of the duty. The third defendant is, as I have said, alleged to be vicariously liable. The fourth defendant is alleged to be vicariously liable, but in addition to have breached its own duty of care to the plaintiff.

It is claimed that as a result of those breaches the plaintiff has suffered shock, anguish and emotional distress and an anxiety depressive state which will continue and will require medication and may require hospitalisation and psychiatric treatment. The plaintiff pleads that he has suffered economic loss.

Whilst the plaintiff claims that each of the first, second and fourth defendants owed a separate duty of care to the plaintiff, the pleading does not disclose how that duty of care arose. It is merely asserted that there is such a duty of care.

The pleading fails to provide any particulars of the precise relationship between the medical practitioners the Hospital and the Department. The reader is left to speculate; the relationship is put generally as one of employment, or agency.

The Statement of Claim does not assert any breach of statutory duty. The duties are advanced only as common law duties.

Our society attaches the highest importance to the welfare of children. Children are considered to be vulnerable and in need of special protection in their formative years. This need for special protection has been recognised and addressed by provisions of the Act.

A consideration of the legislative scheme is critical to determining whether any common law duty is owed to the plaintiff. The relevant statutory framework is to be found in the Act. The Act provides inter alia[8]

" '25. A person dealing with a child under or by virtue of any of the provisions of this Part - (a) shall regard the interests of the child as the paramount consideration; (b) shall seek to secure for the child care, guidance and support within a healthy and balanced family environment; (c) shall deal with the child in a caring and sensitive manner; (d) shall have regard to the rights of the child, and to the needs and wishes expressed by him; and (e) shall promote, where practicable, a satisfactory relationship between the child and other members of, or persons within, his family or domestic environment.' Division II of Part IV is headed 'The Care and Protection of Children', and contains provisions for placing a child under the guardianship of the Minister, for the establishment of facilities for young offenders and children in need of care, foster care agencies, licensed Children's Homes and the like. Division III of Part IV is headed 'The Protection of Children'. Sections 86 - 90 inclusive provide for the establishment and functions of regional and local child protection panels. ... Division III also includes the following relevant sections: '91(1) Where a person suspects on reasonable grounds that an offence under this Division has been committed against a child, that person - (a) if he is not obliged to comply with this section - may notify an officer of the Department of his suspicion; or (b) if he is obliged to comply with this section - shall notify an officer of the Department of his suspicion, as soon as practicable after he forms the suspicion. (2) The following persons are obliged to comply with this section -

(g) any person employed in a school as a teacher aide;

(j) any employee of an agency that provides health or welfare

(k) any social worker employed in a hospital, health centre or

... (5) Where a person acts in good faith and in compliance with the provisions of this section, he incurs no civil liability in respect of that action. 92.(1) Any person having the care, custody, control or charge of a child, who maltreats or neglects the child, or causes the child to be maltreated or neglected, in a manner likely to subject the child to physical or mental injury, shall be guilty of an offence and liable to a penalty not exceeding one thousand dollars or imprisonment for a period not exceeding twelve months.' "

An evident purpose of the act is the protection of children. Section 25 of the Act is its cornerstone. By its provisions it is mandatory for a person dealing with a child to regard the interests of the child as the paramount consideration . It also makes mandatory a number of other duties all designed to further the interest of the child. Those charged with responsibilities must seek to secure care, guidance and support for the child; they must deal with the child in a caring and sensitive manner. There is recognition that the rights, wishes, and needs of the child must be addressed.

Against the background of section 25, I consider the following remarks of Duggan J in H v Black to be pertinent to the purpose of the legislative scheme and I respectfully adopt them[9]

"... the relevant provisions of the Community Welfare Act are directed towards the protection of children. In order to carry out this purpose those entrusted with the responsibilities created by the Act are required to investigate difficult issues of fact and make decisions based upon judgment and the exercise of discretion. To impose a duty of care to be exercised in favour of persons in the position of the plaintiff, thereby placing the department and its officers at risk of being sued, would tend to inhibit the expression of opinions and the carrying out of protective measures, thus impeding the effective administration of the Act." " Any investigation into the alleged sexual abuse of a child instigated or undertaken by the department's officers under the provisions of the Act must have as its central objective the welfare of the child. Not only is this specifically provided for in s25(a) of the Act but it is to be inferred from the functions and powers contained in Part IV of the Act."[10]

110 As earlier observed, the High Court considered the question of duties of care owed by statutory authorities in Crimmins v SIFC. The High Court was divided as to the general approach to be taken to the issue of whether a statutory body owes a common law duty of care.

111 Gaudron J considered that one looked to see if the circumstances gave rise to a duty of care at common law, and then enquired whether the statute should be understood to modify it.

112 Gummow J took the opposite view. His starting point was to consider the terms of the legislative scheme. If the statute is incompatible with any possible duty no further enquiry is called for. Kirby and Hayne JJ appear to have adopted the same approach.

113 McHugh J (with whom Gleeson CJ agreed) adopted the incremental approach. Callinan J would appear to start his enquiry with the common law and then consider whether the legislative provisions would operate to modify, mould or indicate the common law principles.

114 Despite the differences to the general approach taken, all members of the High Court treated as critical the question whether the statute negatived a duty of care.

115 That question has been posed in the following substantially similar terms:-

Do the terms of the statute rule out the co-existence of a common law duty?

Has the statute imposed on the statutory body discretions and functions incompatible with the duty of care?

Does the legislation reveal an intention to exclude a common law duty?

Are there special factors applicable to a statutory authority which negative a duty of care that a private individual would owe in apparently similar circumstances?

Is the legislation under which the statutory authority operated inconsistent with the recognition of a common law duty of care?

The plaintiff submitted that a duty of care should be imposed having regard to the factors of foreseeability, neighbourhood and proximity, assumption of responsibility, control, and vulnerability. It was submitted that the legislative scheme did not exclude a common law duty. No conflicts would arise at the investigative stage because it was said a common law duty would not inhibit the expression of opinion by medical practitioners. A duty could be owed to the plaintiff without the scheme being compromised at all.

The defendants conceded that it was foreseeable that damage could be sustained by the plaintiff by reason of their conduct. But it was contended that foreseeability was not sufficient itself to give rise to a duty of care. The defendants submitted that public policy considerations negative the existence of any duty. It was said that sections 25, 90 and 91 of the Act imposed a duty upon the defendants to protect children and to investigate allegations of child abuse for that purpose. That duty is inconsistent with any notion of a duty of care owed by the Department or its officers, servants, or agents to alleged perpetrators of child abuse. It was suggested that the requirement of section 25(a)(2), that the interests of the child be the paramount consideration, necessarily subordinated the interests of other persons to the child's interests. It was further submitted that an important basis for negating the existence of a duty of care was the effect that such a duty would have on the ability of the Department and its officers, employees or agents to carry out their statutory duties.

The substantive issue in this appeal is whether the terms of the legislative scheme negate any duty of care to the plaintiff. Can it be said that the provisions of the legislative scheme are incompatible with there being a duty owed to the plaintiff?

A duty of care owed by the Department or its officers, employees or agents to an alleged perpetrator of abuse may well discourage or inhibit the carrying out of the statutory duties. An example of discouragement or inhibition is the "danger of overkill". This is the carrying out of a function in a detrimentally defensive frame of mind. The fear of suit may lead to unnecessary tests and other procedures at great cost in terms of delay and expense and the risk of the child to possible negative effects of unduly intensive or prolonged investigation.

A primary purpose of the statutory duty to report is to provide the child with protection to obviate the risk of further abuse. The fact that the investigations leading to a report are likely to cause family disharmony and even disruption should not be permitted to divert attention away from the child's needs. To impose duties towards others may put the child at risk. There should be no inhibition of the departmental officers, medical practitioners or social workers in doing the work necessary to test allegations or suspicions of abuse and to act on a suspicion reasonably held to protect the child. Such persons must be left, without constraint through fear of litigation, to perform their duties with the interests of the child being paramount.

The legislative scheme obliges medical practitioners social workers and many others to notify the Department of a suspicion held on reasonable grounds that an offence has been committed against a child. The expressions, "suspects", and, "on reasonable grounds", are very wide. The purpose of the legislative scheme is that a child be protected as the particular circumstances require without waiting, for all enquiries to be concluded, comprehensive examinations and assessment to take place or a prima facie case to be established. For good reason, protection may require expeditious and decisive action. As the child's interests are paramount, other interests in conflict or potentially in conflict, are subordinated to that paramount interest.

I consider that the legislative scheme and the nature and purpose of the powers and functions conferred imply an intention that the common law should be excluded in so far as the alleged perpetrator of abuse is concerned.

The relationship between the medical practitioners and the children is unusual. It is a relationship instigated by the Department. The contractual relationship is between the Department and the practitioners and not between the children and the practitioners. The duty to report is to the Department. There is no contractual relationship between the medical practitioners and the alleged abuser or any other party apart from the Department. No contractual duty of care is owed by the medical practitioner to the alleged abuser.

Some assistance is provided by the decision of the English Courts in X (Minors) v Bedfordshire County Council[11]

. That decision dealt with five separate appeals, one (Newham) involves facts similar to this matter. All members of the Court of Appeal and of the House of Lords, when considering similar UK legislation, were of the opinion that no duty was owed to the mother of the child by the local authority, the medical practitioner, or the social worker involved. The de facto partner of the mother was the alleged abuser and as a result of the conduct of the local authority, and that of the medical practitioner and social worker it was claimed that the child was removed from the mother's care for a lengthy period. The English Court found no duty was owed to the mother. A number of policy considerations were identified to negate any duty of care. It was considered that a common law duty of care would cut across the UK statutory scheme set up for the protection of children at risk. Other factors included the possible compromise of the extraordinarily delicate task of dealing with children at risk; the fact that the imposition of a duty would lead to a more cautious or defensive approach with an increase in delay and expense; the fact that the conflicts and emotions that would necessarily arise would lead to ill feeling and litigation involving delay, cost and waste of resources.

125 The Court in Hillman v Black both at trial and on appeal, took the view that proximity did not exist by reason of matters of public policy. Duggan J put it in these terms[12]:-

" In my view the suggestion of a duty of care owed to the plaintiff in the circumstances under consideration is incompatible with the function and purpose of the departmental role. Furthermore, the incorporation into these responsibilities of a duty to the plaintiff would have the potential to inhibit to a significant degree the performance of the duties of the department. As I have said I do not wish to imply that great care should not be taken in order to avoid acting upon false allegations. However, I am of the opinion that this cannot be translated into a duty of care which would allow for a cause of action of the type claimed by the plaintiff. I find, therefore, that no such duty exists. I am further of the view that the same considerations are relevant to the plaintiff's case against Drs Black and Govan. Dr Black was asked to examine R by the departmental officers in order to assist them in discharging their responsibilities under the Act. Medical examinations of the type conducted by Dr Black are also considered by the police in deciding whether to charge any alleged perpetrator with a sexual offence. Indeed Dr Black's view was communicated to the investigating police officer in the present case at the officer's request. The possibility of a conflict of interest, the lack of proximity and the policy considerations to which I have referred in discussing the case against the department would also deny the existence of a duty of care to be exercised by Dr Black in favour of the plaintiff. "

Matheson J was of the view "... that similar policy considerations to those articulated in the Newham case are very persuasive here also ..." and that these policy considerations led to the conclusion that the relationship of proximity was not proved.[13]

Prior J expressly approved the remarks of Duggan J, and as referred to above, concluded on policy grounds, that no relationship of proximity existed.[14] Perry J was of the view the legislative scheme was inimical to there being a duty of care.[15] The reasoning of each member of the Court that policy reasons negated any duty of care is still apposite.

127 The factors considered and weighed by the Court in Hillman v Black are in substance the same factors identified as being relevant in Perre v Apand Pty Ltd and the approach taken accords with the reasoning in Crimmins v SFIC. I consider Hillman v Black to be correctly decided.

128 In my opinion no duty of care was owed by the defendants to the plaintiff, either directly or vicariously.

1. [1996] SASC 5941; (1996-1997) 67 SASR 490; Special Leave to appeal was refused by the High Court of Australia.

6. Hill v Van Erp (1996-1997) 188 CLR 159; Perre v Apand (supra); Pyreneese Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330

8. The preamble, ss 10, 82, and 235 have been reproduced in Hillman v Black supra

10. (1996-1997) supra at 519-20. All members of the Full Court approved these remarks supra per Matheson J at 496, 501 per Prior J at 508-511 per Perry J at 520.

[1996] SASC 5941; (1996-1997) 67 SASR 490; Special Leave to appeal was refused by the High Court of Australia.

[6] Hill v Van Erp (1996-1997_)_ 188 CLR 159; Perre v Apand (supra); Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330

[8] The preamble, ss 10, 82, and 235 have been reproduced in Hillman v Black supra

[10] (1996-1997) supra at 519-20. All members of the Full Court approved these remarks per Matheson J at 496, 501 per Prior J at 508-511, per Perry J at 520.

Community Welfare Act 1972

At a glance

Court

Decision date

Before

Source

Judgment (170 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (6)