RICHARD IAN HILLMAN v TANIA LEONIE BLACK AND OTHERS No. SCGRG 90/1492 Judgment No. 5941 Number of pages - 36 Negligence - [1996] SASC 5941 - SASC 1996 case summary — Zoe

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In his judgment, the trial judge made reference to many authorities. He properly began with a reference to the notion of proximity as explained by Deane J in Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 and subsequently adopted by a majority of justices of the High Court sitting in Cook v Cook [1986] HCA 73; (1986) 162 CLR 376 and San Sebastian v Minister Administering The Environmental Planning and Assessment Act 1979 and Another [1986] HCA 68; (1986) 162 CLR 340. A duty of care only arises where a relationship of proximity between a plaintiff and defendant is shown to exist. Policy considerations are not excluded: Gala v Preston [1991] HCA 18; (1991) 172 CLR 243 at 253. In Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 at 584, 585, Deane J said that the notion of proximity: "...is directed to the relationship between the parties in so far as it is relevant to the allegedly negligent act of one person and the resulting injury sustained by the other. It involves the notion of nearness or closeness and embraces physical proximity (in the sense of space and time) between the person or property of the plaintiff and the person or property of the defendant, circumstantial proximity such as an overriding relationship of employer and employee or of a professional man and his client and causal proximity in the sense of the closeness or directness of the relationship between the particular act or cause of action and the injury sustained: cf. the 'signposts or guidelines or relevant considerations' referred to by Cook J, in Rutherford v Attorney- Genera1 [1976] 1 NZLR 403 at 411. The identity and relative importance of the considerations relevant to an issue of proximity will obviously vary in different classes of case and the question whether the relationship is 'so' close 'that' the common law should recognise a duty of care in a new area or class of case is, as Lord Atkin foresaw, likely to be 'difficult' of resolution in that it may involve value judgments on matters of policy and degree."

Parties

Applicant/Plaintiff:

# RICHARD IAN HILLMAN

Respondent/Defendant:

TANIA LEONIE BLACK AND OTHERS No. SCGRG 90/1492 Judgment No. 5941 Number of pages - 36 Negligence

Legislation Cited (10)

Local Government Act 1919(NSW)

Community Welfare Act 1972

Rights and Equal Opportunity Commission Act 1986

Planning and Assessment Act 1979

Correctional Services Act 1982

Local Government Act 1919(NSW)

Community Welfare Act 1972

Rights and Equal Opportunity Commission Act 1986

Planning and Assessment Act 1979

Correctional Services Act 1982

Cases Cited (22)

RICHARD IAN HILLMAN v TANIA LEONIE BLACK AND OTHERS No. SCGRG 90/1492 Judgment No. 5941 Number of pages - 36 Negligence (1996) 67 SASR 490 [1996] SASC 5941 (17 December 1996)

CWDS Negligence

action brought by father of three year old child accused of sexually abusing her - child examined at request of Department of Community Welfare by a medical practitioner at Sexual Assault Referral Centre and later interviewed by a child psychiatrist - allegation that the medical practitioners were in breach of a duty of care owed to the plaintiff - claim that the Department of Community Welfare also acted in breach of duty of care to the plaintiff in failing to ensure that proper assessments of the child were carried out
allegation that the plaintiff suffered a psychiatric illness resulting in part from his separation from his wife and children and that the separation was causally related to the assessments made by the medical practitioners - consideration of Community Welfare Act - failure of the plaintiff to establish that any of the defendants owed him a duty of care - necessary relationship of proximity not proved - witness immunity - appeal dismissed. Community Welfare Act 1972 , referred to. X (Minors) v Bedfordshire CC and Others [1995] UKHL 9; (1995) 2 AC 633; Stovin v Wise, (Norfolk County Council Third Party) (1996) 3 WLR 388; Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549; Bryan v Maloney [1989] AdelLawRw 8; (1995) 182 CLR 609; (1989) 12 Adelaide Law Review 93 ; Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130, applied.

International law - relevance of treaties adopted by Australia - observations as to the relevance of international instruments entered into by Australia which emphasise the recognition of the family as the natural and fundamental group unit of society and the need to preserve the rights of children. Human Rights and Equal Opportunity Commission Act 1986 Cwth) , referred to. Walsh and Anor v Department of Social Security Perry J, 5 September 1996, judgment No 5795 [1996] SASC 5795; (1996) 67 SASR 143; International Convention on Civil and Political Rights Article 23; The Convention on the Rights of the Child Article 3(2); Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 128 ALR 353; Jumbinna Coal Mine NL v Victoria Coal Miners Association (1908) 6 CLR 309; Polites v The Commonwealth and Anor [1945] HCA 3; (1945) 70 CLR 60; Ahmad v Inner London Education Authority [1978] 1 QB 36, considered.

others) or statutory regulators of financial dealings who are seeking to protect investors from dishonesty. In neither of those cases has it been thought appropriate to superimpose on the statutory regime a common law duty of care giving rise to a claim in damages for failure to protect the weak against the wrongdoer: see Hill v. Chief Constable of West Yorkshire [1989] A.C. 53 and Yuen Kun Yeu v. Attorney-General of Hong Kong [1987] UKPC 16; [1988] A.C. 175. In the latter case, the Privy Council whilst not deciding the point said, at p.198, that there was much force in the argument that if the regulators had been held liable in that case the principles leading to such liability �would surely be equally applicable to a wide range of regulatory agencies, not only in the financial field, but also, for example, to the factory inspectorate and social workers, to name only a few.� In my judgment, the courts should proceed with great care before holding liable in negligence those who have been charged by Parliament with the task of protecting society from the wrongdoings of others."

The speech of Lord Browne-Wilkinson, concurred in by three of the other Lords of Appeal, prompts me to assert that if the House of Lords were faced with deciding this appeal, it would inevitably be dismissed. However, Mr Kourakis, counsel for the appellant, has stressed that there has been a difference in approach, particularly in regard to the requirement of a relationship of proximity, in the House of Lords and in the High Court of Australia, a difference which is highlighted, if it does not find its origins, in the judgment of Deane J in Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549. At pp584-585 Deane J said: "Lord Atkin did not seek to identify the precise content of the requirement of the relationship of �proximity� which he identified as a limitation upon the test of reasonable foreseeability. It was left as a broad and flexible touchstone of the circumstances in which the common law would admit the existence of a relevant duty of care to avoid reasonably foreseeable injury to another. It is directed to the relationship between the parties in so far as it is

As was pointed out in the recent majority judgment in Burnie Port Authority v. General Jones Pty. Ltd. [1994] HCA 13; (1994) 179 C.L.R. 520, the overriding requirement of a relationship of proximity represents the conceptual determinant and the unifying theme of the categories of case in which the common law of negligence recognizes the existence of a duty to take reasonable care to avoid a reasonably foreseeable risk of injury to another. There is no decision of the Court which directly determines the question whether the relationship between Mr. Bryan, as the builder of the house, and Mrs. Maloney, as a subsequent owner of it, possessed the requisite degree of proximity to give rise to a duty, on the part of Mr. Bryan, to take reasonable care to avoid the kind of economic loss sustained by Mrs. Maloney. Necessarily, as has been indicated, the resolution of that question requires the articulation of both the factual components of the relevant category of relationship and the identification of any applicable policy considerations. Ultimately, however, it is a question of law which must be resolved by the ordinary processes of legal reasoning in the context of the existence or absence of the requisite element of proximity in comparable relationships or with respect to comparable acts and/or damage. Accordingly, it is appropriate to approach the question through a consideration of some related situations."

The immunity of witnesses from any action founded on their evidence was originally designed to ensure in the public interest that witnesses would not, through fear of later civil proceedings, be inhibited from giving frank evidence in court. This immunity was widened by this House in Watson v. M�Ewan; Watson v. Jones [1905] UKHL 1; [1905] A.C. 480 to cover information and reports given by a potential witness to the legal advisers of a party for the purpose of preparing a proof.

The leading High Court of Australia case is Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130. At p141, Starke J said that "the rule of law is that no action lies against witnesses in respect of evidence prepared ... given, adduced or procured by them in the course of legal proceedings. The law protects witnesses and others, not for their benefit, but for a higher purpose, namely, the advancement of public justice ..." See also Rich ACJ at 139, and Williams J at 149.

(1996) 67 SASR 490

(1984) 155 CLR 549

(1995) 182 CLR 609

(1940) 64 CLR 130

(1996) 67 SASR 143

(1995) 128 ALR 353

(1908) 6 CLR 309

(1945) 70 CLR 60

(1984) 155 CLR 549

(1940) 64 CLR 130

(1986) 162 CLR 376

(1986) 162 CLR 340

(1991) 172 CLR 243

(1985) 157 CLR 425

RICHARD IAN HILLMAN v TANIA LEONIE BLACK AND OTHERS No. SCGRG 90/1492 Judgment No. 5941 Number of pages - 36 Negligence

At a glance

Court

Decision date

Before

Source

Judgment (134 paragraphs)

Parties

Legislation Cited (10)

Cases Cited (22)

RICHARD IAN HILLMAN v TANIA LEONIE BLACK AND OTHERS No. SCGRG 90/1492 Judgment No. 5941 Number of pages - 36 Negligence (1996) 67 SASR 490 [1996] SASC 5941 (17 December 1996)