The appellant's case included evidence from Dr Le Page. He gave the appellant psychiatric treatment over a considerable period of time, from November 1987. Dr Le Page's view is that the appellant suffers from a reactive anxiety depressive state with psychosomatic manifestations and some elements of a post-traumatic stress disorder. The doctor said that the condition had resulted from a number of stressors, most of them associated with the allegations of sexual assault and the separation from his family.

In dismissing the appellant's claim, the trial judge found that no defendant owed any duty of care to the appellant. The trial judge also expressed the view that even if, contrary to his view, there was a duty of care owed by any defendant to the appellant, then there had been no breach of any such duty. Further, the trial judge said that it was also his view that the appellant had not proved a sufficient causal link between the conduct complained of and the injury and loss claimed by him. In His Honour's view there was considerable vagueness about the appellant's case on the issue of causation. It was His Honour's view that there was no indication of the causative steps necessary to link a breach of duty and loss.

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."

In Sutherland Shire Council v Heyman (1985) 157 CLR 425 at 497 and 498 Deane J pointed out that the notion of proximity is obviously inadequate to provide an automatic rigid formula for determining liability. This was not a disadvantage, so much as:- "It has been the flexibility of fundamental concepts and principles which has enabled the common law to reflect the influence of contemporary standards and demands and which has in no small part underlain its genius to provide a living element of the social compact of civilisation for different peoples through different ages and in different parts of the world".

After referring again to what he said in Jaensch v Coffey about both the identity and the relative importance of the factors which are determinative of an issue of proximity being likely to vary in different categories of case, Deane J continued:- "That does not mean that there is scope for decision by reference to idiosyncratic notions of justice or morality or that it is a proper approach to treat the requirement of proximity as a question of fact

to be resolved merely by reference to the relationship between the plaintiff and the defendant in the particular circumstances. The requirement of the relationship of proximity serves as a touchstone and control of the categories of case in which the common law will adjudge that a duty of care is owed. Given the general circumstances of a case in a new or developing area of the law of negligence, the question what (if any) combination or combinations of factors will satisfy the requirement of proximity is a question of law to be resolved by the processes of legal reasoning, induction and deduction. On the other hand, the identification of the content of that requirement in such an area should not be either ostensibly or actually divorced from notions of what is 'fair and reasonable' or from the considerations of public policy which underlie and enlighten the existence and content of the requirement."

In this appeal it is complained that the trial judge erred in denying a duty of care being owed to the appellant by relying upon English authorities which, it was said have developed along a different path to Australia by emphasising policy considerations and pure economic loss criteria rather than focus on proximity.

The trial judge spoke of modern authorities providing guidance for determining the existence or otherwise of a duty of care and then said that the present case did not come within any of the established categories of negligence. He therefore said it was necessary to refer to matters of general principle. He referred to Jaensch v Coffey, San Sebastian, Gala v Preston and Sutherland Shire Council v Heyman before referring to any English authority. He referred to provisions in ss10, 25, 90 and 91 of the Community Welfare Act, 1972, after properly observing that the relationship between the appellant and the respondents could not be determined without reference to the provisions of the Act, particularly so in the case of the Department. His Honour said:- "This is not to say that the statutory function is the only relevant consideration, but insofar as it explains the role of the Department it assists in defining the relationship, if any, existing between the plaintiff and this defendant. It also identifies some issues of public policy relevant to the question as to whether a duty of care can be said to exist."

His Honour then dealt with what he described as the broad thrust of the appellant's case against the Department. The argument put to the trial judge was that the Department either misinterpreted the work of Dr Black or ought to have realised itself the deficiencies in the investigation. It was said that the Department failed to check for itself that Dr Black was adopting reasonable scientific methodology when investigating abuse. Furthermore, the appellant's case was that the Department referred the appellant's daughter to Dr Govan for treatment when such a referral was not reasonable and contra indicated.

His Honour then said:- "I have no difficulty in accepting the proposition that carelessness on the part of officers of the department in investigating a complaint of sexual abuse may well cause damage to the person accused. There are obvious dangers in accepting and acting upon such allegations without a proper investigation. As a matter of fairness it is essential that those conducting enquiries into allegations of child sexual abuse do so objectively and with an awareness of the injustice which can result from giving weight to false or tenuous allegations. However, as the authorities to which I have referred

make clear, this consideration of itself does not give rise to an action in negligence. It is necessary to look rather at the relationship between the plaintiff and this defendant in the context of the facts and circumstances which it is claimed give rise to a general duty.

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.

Although, as I have said, a person accused of sexual abuse may be affected by the investigation, it is hardly accurate to speak of a relationship between the department and the person accused in any relevant sense. Injury to a person accused resulting from an inadequate assessment of sexual abuse allegations may well be foreseeable, but a coexisting duty to the person accused would tend to conflict with the clear statutory duty to act in the interests of the child."

His Honour then referred to an English and a New Zealand authority (Clark v Bruce Lance & Co (1988) 1 All ER 364 and Garside v Sheffield, Young and Ellis [1983] NZCA 37; (1983) NZLR 37), where potential conflicts of interest resulted in a denial of a duty of care in each case. It was put to the Full Court that these decisions must now be in doubt in light of the High Court's decision in Bryan v Maloney (1995) 182 CLR 609. However that may be, His Honour appears most persuaded by the decision in a case he described as "a case closer to the facts of the present case": X (Minors) v Bedfordshire County Council [1995] UKHL 9; [1995] 2 AC 633 at 665 and 666. His Honour's reference was to the decision of the Court of appeal [1995] UKHL 9; [1995] 2 AC 633 at 651. An appeal to the House of Lords was dismissed after judgment in this case. A mother and child were alleging negligence against a local authority's social worker and psychiatrist for failing to investigate the facts relating to a complaint of sexual abuse with proper care and thoroughness and for failing to discuss their conclusions about an allegation of sexual abuse with the mother. The social worker and psychiatrist wrongly believed that the person responsible for the abuse was the man with whom the mother was then living. The mother excluded the man from her home. The child was made a ward of court and the local authority granted care and control of the child. The court order was that the child should not return home and that the mother's access be limited. The child and the mother claimed that as a result of their enforced separation each of them had suffered a positive psychiatric disorder diagnosed as anxiety neurosis.

The trial judge quoted a passage from the judgment of the Master of Rolls, in which Sir Thomas Bingham denied that a duty of care was owed by the psychiatrist to the child's mother [1995] UKHL 9; [1995] 2 AC 633 at 665 and 666, and said that the psychiatrist's duty was to act in the interests of the child. The trial judge then said:- "There are also public policy issues which militate against the recognition of a duty of care in this case. As I have attempted to

point out, 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."

His Honour saw an analogy "in the investigational role of the police". He cited Hill v Chief Constable of West Yorkshire [1988] QB 60 at 75 and [1985] AC 53. In that case it was held that the mother of the last victim of a murderer was owed no duty of care by investigating police officers for failing to apprehend the murderer before her daughter's death. Glidewell LJ gave the reason for holding that the police were immune from an action of the kind sought to be pursued as being "similar to those for holding that a barrister may not be sued for negligence in his conduct of proceedings in court" [1988] QB 60 at 75. His Honour also referred to a decision of the Court of Appeal, holding that there was no general duty of care owed by the Crown Prosecution Service to a person prosecuted by it: Elguzouli-Daf v Commissioner of Police; McBrearty v Ministry of Defence [1994] EWCA Civ 4; [1995] QB 335. Steyn LJ there acknowledged that individualised justice to persons aggrieved by careless decisions of prosecutors militated in favour of the recognition of a duty of care but nonetheless concluded that there were "compelling considerations, rooted in the welfare of the whole community, which outweighed the dictates of individualised justice" [1994] EWCA Civ 4; [1995] QB 335 at 349.

His Honour then referred to Yuen Kun Yeu and Others v Attorney- General of Hong Kong [1987] UKPC 16; [1988] 1 AC 175. The Privy Council there considered whether a duty was owed by a regulatory agency in favour of a private individual. The agency's functions were said to involve a broader public interest than concern for the protection of individual investors. His Honour quoted the public policy argument referred to at 198 of Their Lordships' Advice. That passage included a reference to sound judgment being less likely to be exercised if the agency were to be looking over its shoulder at the prospect of claims. Its activities were likely to be conducted in a detrimentally defensive frame of mind.

The trial judge then said that whilst it might be thought that police and prosecuting authorities come into a special category attracting immunity, the public policy reasoning in those cases and that in the Privy Council case were applicable to cases involving the investigation of child abuse by a statutory authority. His Honour cited some remarks of Peter Gibson LJ in Mv Newham [1995] UKHL 9; [1995] 2 AC 633 at 681. The passage quoted included the following:- "If the law were now to recognise a duty of care owed to the children by the local authority in taking decisions on interventions, there is a significant risk of the exercise of such functions being carried on in a detrimentally defensive frame of mind. I repeat that such decisions are delicate and difficult. I do

not doubt that reasonable persons may often reach different conclusions on the same matter, and the nature of the matter is such as to arouse strong emotions. Further, if litigation were encouraged by a duty of care being held to exist, a major diversion of resources to defending such actions is likely to ensue. I cannot see that this is fair, just or reasonable, particularly when one bears in mind the existence of other remedies."

The trial judge then said:- "In the present case the departmental officers were required to investigate the complaint which had been reported to them to the extent necessary in order for them to carry out their duties under the Act. An important part of the investigation involved the referral of the child to SARC. Although the need did not arise in the present matter there would be cases in which the officers would

be required to consider whether recommendation should be made to the Minister in relation (to) other ministerial powers concerned with guardianship. They had to decide whether to intervene in the Family Court proceedings. And in all these respects they were required to regard the interests of the child as the paramount consideration.

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."

His Honour said that the same considerations were relevant to the appellant's case against the two doctors. His Honour's view was that Dr Black was asked to examine the child by Departmental officers in order to assist them in discharging their responsibilities under the Act. His Honour noticed that such examinations are also considered by police in deciding whether to charge any alleged perpetrator with a sexual offence. His Honour said:- "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. In this respect I again follow the approach of the court in Newham's case where it was held that the psychiatrist did not owe a general duty to the mother of the alleged victim. Although the position of Dr Govan is somewhat different, I can see no reason why the same approach should not apply to the case against him. I am satisfied on the whole of the evidence that the main reason why the departmental officers asked Dr Govan to examine Rebecca was to obtain his view on the advisability of access by the plaintiff. Again the possibility of a conflict between the interests of the child and the interests of the plaintiff is plainly to be seen. Present also is the importance of Dr Govan not being inhibited in expressing his view."

I agree with the trial judge that no duty of care was owed by any respondent to the appellant. My reasoning is slightly different from that of the trial judge in the four passages last quoted. The English authorities are of assistance in considering the relevant policy considerations. 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. Any, possibility of a conflict of interest is part of both what is fair and reasonable and the policy considerations going to deny any relationship of proximity: Jaensch v Coffey (1985) 157 CLR 425 at 498. To determine the matter in this way is to give effect to the prevailing approach in the High Court which identifies notions of what is fair and reasonable and policy considerations as going to the question of proximity, rather than as separate matters for consideration as in England. When X (Minors) v Bedfordshire County Council went to the House of Lords, Lord Browne- Wilkinson referred to the fact that the local authority accepted that it could foresee damage to the child and her mother if the authority carried out statutory duties negligently and that the relationship between the authority and the child and her mother was sufficiently proximate. The question remaining, consistent with the approach of the House of Lords in Caparo Industries v Dickman [1990] UKHL 2; [1990] 2 AC 605, was simply whether it was just and reasonable to impose a common law duty of care in all the circumstances.

Notions of what is fair and reasonable and policy considerations, considered as a third requirement by the House of Lords in Caparo, are taken into account here to deny a relationship of proximity between the appellant and the respondents. The appellant was not owed a duty of care by any of the respondents. Compelling considerations outweigh the dictates o individualised justice. To acknowledge a duty of care in favour of the appellant would be unfair and unreasonable. It would create risks of a conflict of interest-and duty upon those seeking to carry into effect the protective measures contained in the Community Welfare Act, and impede the effective administration of it. The tendency to inhibit the expression of opinions and action in a detrimentally, defensive frame of mind are but factors contributing to the conclusion that the appellant's alleged right of action must be rejected. Another is the unjustifiable diversion of money and human resources resulting from the existence of such a remedy.

The Crown in right of the State of South Australia is not liable to the appellant for any act or omission of its officers done in good faith in the exercise or discharge of powers, functions, duties or responsibilities under the Act. Notwithstanding arguments put to the contrary, Dr Black and Dr Govan are not persons to whom the provisions of s23 5a apply. Nor are they entitled to have the claims against them dismissed because of a particular exemption from civil liability contained in s91(5) of the Act. The trial judge was correct to identify their involvement in this case as different from the situation which attracts that particular immunity. That immunity applies where a person acting in good faith notifies an officer of the Department of a suspicion that an offence under a particular division of the Act has been committed. Here two doctors were asked for opinions by Departmental officers about a matter already known to the Department and brought to the doctors' attention by officers of the Department.

I am far from persuaded that the doctors gain immunity by reliance upon the principle of witness immunity either. They were not within a relationship of proximity to the alleged perpetrator of sexual abuse for the reasons already referred to.

Suffice it to say that in this case Dr Black's disclosure to the mother could not attract the witness immunity principle and that Dr Govan's opinions were sought with respect to civil proceedings well after a decision not to prosecute was made."

The appeal should be dismissed on the ground that no duty of care is owed to the alleged perpetrator of sexual abuse by the Department for Community Welfare or the two doctors in this case. It is neither necessary nor appropriate to deal with the questions of breach of duty and causation.

A statement of the relevant facts appears in the judgment of Matheson J. I will add to that only where necessary to make these reasons intelligible.

The case was advanced by the appellant in this way: the two medical practitioners were said to be negligent in the manner they went about the tasks assigned to them; the two hospitals, being respectively the employers of the two medical practitioners, were vicariously liable for their negligence; and the State of South Australia was, through the agency of the Department of Community Welfare ("the DCW"), liable in negligence having regard to the alleged failure by the DCW to carry out its duties and responsibilities pursuant to the Community Welfare Act 1972 ("the Act").

Although a reference is made in the statement of claim (para 42) to the DCW�s "duties and responsibilities generally", the thrust of the plea against the State of South Australia and the presentation of the case based on alleged failings on the part of the DCW is confined to the latter�s duties under the Act, that is, the alleged negligent performance of its statutory duties. For convenience, I will hereafter refer to the case against the DCW rather than the case against the State of South Australia.

The central question raised by the appeal is whether the circumstances were such as to give rise to a duty of care on the part of any of the respondents such as to found a cause of action in negligence against them at the suit of the appellant.

The learned trial Judge took the view that in the particular circumstances of the case there was no such duty of care.

One starts with the proposition that injury and loss to a parent may clearly be anticipated to result from the careless investigation by authorities such as the DCW into a case of alleged abuse of a child, and it is in that sense foreseeable.

But foreseeability alone does not give rise to liability in negligence.

In Dorset Yacht Co v Home Office, Lord Diplock instances a number of examples of acts or omissions which give rise to foreseeable loss or damage but with respect to which the law has consistently denied the existence of a duty of care.

In McLoughlin v O�Brian and Ors, Lord Wilberforce said: "That foreseeability does not of itself, and automatically, lead to a duty of care is, I think, clear."

In the same case he had earlier observed that there was: "... a common principle, namely that, at the margin, the boundaries of man�s responsibility for acts or negligence have to be fixed as a matter of policy."

That dictum was expressly approved by Gibbs CJ in Jaensch v Coffey.

In the same case, Deane J said: "The requirement of a �relationship of proximity� is a touchstone and a control of the categories of case in which the common law will admit the existence of a duty of care and, given the general circumstances of a case in a new or developing area of the law of negligence, the question whether the relationship between plaintiff and defendant with reference to the allegedly negligent act possessed the requisite degree of proximity is a question of law to be resolved by the processes of legal reasoning by induction and deduction. The identification of the content of the criteria or rules which reflect that requirement in developing areas of the law should not, however, be either ostensibly or actually divorced from the considerations of public policy which underlie and enlighten it."

Deane J developed that view in Sutherland Shire Council v Heyman and Anor. In that case he said: "The requirement of proximity is directed to the relationship between the parties in so far as it is relevant to the allegedly negligent act or omission of the defendant and the loss or injury sustained by the plaintiff..... The requirement of a relationship of proximity serves as a touchstone and control of the categories of case in which the common law will adjudge that a duty of care is owed."

With respect to the particular question at issue in that case, namely, whether or not the cause of action arose out of the discharge by a municipal council of its duties of inspection under the Local Government Act 1919 (NSW), he went on to observe: "In such a case, the mere fact that a public body or instrumentality is exercising statutory powers and functions does not mean that it enjoys immunity from liability to private individuals under the ordinary law beyond the extent that there can be actually discerned in the relevant legislation an express or implied intent that the private rights of individuals be displaced or subordinated. Nor does it mean that the existence of the statutory powers and functions, the assumption of responsibility which may be involved in their exercise, or any reliance which may be placed upon a presumption that they have been or are being properly exercise is to be ignored or discounted in determining whether there existed in the relationship between public body or instrumentality and private citizen a degree of proximity which was adequate to give rise to a duty of care under the principles of common law negligence."

In Gala v Preston in the joint judgment of the majority appears the following passage: "The requirement of proximity constitutes the general determinant of the categories of case in which the common law of negligence recognises the existence of a duty to take reasonable care to avoid a reasonably foreseeable and real risk of injury. In determining whether the requirement is satisfied in a particular category of case in a developing of the area of law of negligence, the relevant factors will include policy considerations."

Swan v State of South Australia concerned a claim by an infant plaintiff who alleged negligence on the part of the South Australian Parole Board and parole officers employed by the Department of Correctional Services in failing to supervise the performance of parole conditions by a prisoner who had been released on parole so as to ensure that he did not come into contact with children under the age of 14 years except in the presence of another adult.

In his judgment Bollen J (with whom Mohr and Duggan JJ agreed) accepted that in determining whether or not proximity had been established, policy considerations, and in particular those arising from a proper consideration of the Correctional Services Act 1982, fell to be considered.

In Bryan v Maloney Mason CJ, Deane and Gaudron JJ in their joint judgment said: "The cases in this Court establish that a duty of care arises under the common law of negligence of this country only where there exists a relationship of proximity between the parties with respect to both the relevant class of act or omission and the relevant kind of damage. ...

As was pointed out in the recent majority judgment in Burnie Port Authority v General Jones Pty Ltd, 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 recognises 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."

In the United Kingdom, the authorities suggest that not only must the separate elements of foreseeability and proximity be addressed, but that at least in cases involving what might loosely be described as public policy considerations, there is an added test as to whether or not it is "just and reasonable" that a duty of care should be imposed.

For example, in X (minors) v Bedfordshire County Council and Ors Lord Browne-Wilkinson observed: "If the plaintiff�s complaint alleges carelessness, not in the taking of a discretionary decision to do some act, but in the practical manner in which that act has been performed (eg the running of a school) the question whether or not there is a common law duty of care falls to be decided by applying the usual principles ie those laid down in Caparo Industries Plc v Dickman. Was the damage to the plaintiff reasonably foreseeable? Was the relationship between the plaintiff and the defendant sufficiently proximate? Is it just and reasonable to impose a duty of care? See Rowling v Takaro Properties Ltd; Hill v Chief Constable of West Yorkshire.

However the question whether there is such a common law duty and if

so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done."

See also Peabody Fund v Sir Lindsay Parkinson & Co Ltd and Ors , Hill v Chief Constable of West Yorkshire and Yuen Kun Yew and Ors v Attorney-General of Hong Kong.

In Elguzouli-Daf v Commissioner of Police of the Metropolis and Anor in which the plaintiffs unsuccessfully sued the Commissioner of Police and others alleging a negligent failure to investigate serious offences against them, with the result that they spent periods in detention, Steyn LJ said: "And in so approaching the question we must consider the ultimate question from three perspectives, namely (a) the foreseeability of the harm that ensues, (b) the nature of the relationship between the parties, usually called the element of proximity, and (c) the question whether it is fair, just and reasonable that the law should impose a duty of care."

Although, therefore, the approach of the courts in England differs, the decisions of the courts of that country, including those to which I have referred, are nonetheless illustrative of the kinds of policy considerations which will be taken into account in construing statutory provisions applicable to public authorities sought to be made liable in negligence.

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. In particular, the question is whether, having regard to the terms in which the relevant statutory provisions are cast, their operation, having regard to the other relevant circumstances, is such as to exclude tortious liability.

So that it is incumbent, conceding the element of foreseeability, to address the question whether the relevant statutory powers and functions which arose under the Community Welfare Act1972 operated, in all the circumstances, in such a way that the element of proximity was not satisfied.

Part II, Division II of the Act is headed "Objectives and Powers of the Minister and the Department". Within that Division, s10(1) provides, inter alia: "(1) The objectives of the Minister and the Department under this Act are- (a) to promote the welfare of the community generally and of individuals, families and groups within the community; and (b) to promote the dignity of the individual and the welfare of the family as the bases of the welfare of the community, ..."

The section then goes on to set out the manner in which those objectives are sought to be achieved, which includes: "(e) by providing ..... services designed to assist .... children ...."

Part IV of the Act (sections 25-94 inclusive) is headed "Support Services for Children". Within Division I of that Part, which deals with "Principles to be Observed", s25 provides: "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."

S27 provides the machinery pursuant to which a child may be placed under the guardianship of the Minister. Apart from cases in which applications to that end may be made by a guardian of the child, or in certain circumstances by the child itself, the Minister may act of his or her own initiative and may, by order in writing, place a child under his or her guardianship. He or she may do so, inter alia: "... where ... a guardian of the child has maltreated ... the child to the extent that the child has suffered, or is likely to suffer, physical or mental injury, or to the extent that his physical,

mental or emotional development is in jeopardy; ..." (s27(3)(a)).

Pursuant to s82 of the Act, the Director-General, or any officer of the department authorised by the Director-General, may: "... where he suspects on reasonable grounds that there is a child in need of care in any place or premises, enter and remain in that place or premises for the purpose of inquiring into the circumstances of the child."

Part IV, Division III, headed "The Protection of Children", provides for the establishment of regional and local child protection panels. Pursuant to s88, the functions of a regional panel include an obligation to receive and consider notifications of maltreatment of children and "to make such recommendations as to remedial treatment or action to the persons involved in a case of maltreatment and to any appropriate health or welfare agency as the panel thinks appropriate, and to facilitate the carrying into effect of that remedial treatment or action" (s88(a) and (b)).

The functions of local panels are defined by s90 and include, inter alia, the provision of: "... guidance, assistance and support to persons involved in the prevention, treatment or management of cases of maltreatment of children;" and the provision of: "... guidance, assistance and support to persons who seek help in relation to the maltreatment of children;"

S91 provides "(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- (a) any legally qualified medical practitioner; (b) any registered dentist; (c) any registered or enrolled nurse; (d) any registered psychologist;

(e) any pharmaceutical chemist; (f) any registered teacher; (g) any person employed in a school as a teacher aide; (h) any person employed in a kindergarten; (i) any member of the police force; (j) any employee of an agency that provides health or welfare services to children; (k) any social worker employed in a hospital, health centre or medical practice;

(l) any person of a class declared by regulation to be a class of persons to which this section applies.

(3) Any such notification must be accompanied by a statement of the observations and opinions upon which the suspicion is based.

(4) An officer of the Department who has received any such notification shall forthwith report the matter to the regional panel constituted for the region in which the offence is alleged to have been committed.

(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."

S92 of the Act creates an offence on the part of 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".

Pursuant to s93, an officer of the department or member of the police force who suspects on reasonable grounds that an offence against Division III (which includes an offence against s92) may on the authorisation of the Director-General cause the child in question to be taken to a hospital or legally qualified medical practitioner for medical examination, if the whereabouts of the guardians of the child are not reasonably ascertainable, or it would be detrimental to the interests of the child to delay medical examination while the consent of a guardian was obtained, or where the guardian has refused or failed to take the child for such a medical examination.

Reference may also be made to certain international instruments. As I said in Walsh and Anor v Department of Social Security with reference to provisions in the Crimes Act 1914 (Cth) which oblige a sentencing court to take into account the probable effect of the sentence on the defendant�s family or dependants: "Various international instruments which have been entered into by Australia emphasise the protection by the society and the State of the family as the natural and fundamental group unit of society, and preservation of the rights of children. Although such international instruments do not form part of Australian law, they serve to underscore the importance of provisions such as s16A(2)(p) of the Crimes Act, which, where possible, should be construed and applied consistently with them. "

There is no reason why such considerations should not apply to State as opposed to Commonwealth legislation. The international instruments to which I there refer run in parallel to and buttress the importance of the corresponding provisions of the Act.

At all times the social worker concerned, Ms Dibden, was acting as an employee of the department and in doing so was acting within the scope of the powers and duties conferred by the Act. She was a worker within the section of the department known as "Crisis Care". It was part of her role to attend on families where there had been an allegation of abuse of a child. According to her evidence, it was in the ordinary course of her duties that she accompanied parents with a child to other agencies, including medical practitioners, for the purpose of examination.

It was in the performance of that role, and following initial contact by the child�s mother with the Noarlunga district office of the Department of Community Welfare that Ms Dibden arranged the appointment for the child to see Dr Black on 27 June 1987. That, of course, was a lengthy examination of the child, which included a discussion between Dr Black and the child�s mother. The upshot of that was that the mother left the matrimonial home with the child on the same day, and did not further cohabit with the appellant.

Dr Black only saw the child on the one occasion. Some time later, on 31 July 1987, she gave a lengthy report to the department.

The child�s mother made an application to the Family Court on 10 July 1987 for sole custody of the child. The appellant responded with a cross-application for custody. The Family Court Judge who dealt initially with the applications invited the department to intervene in the proceedings. They took advice from the Crown Solicitor, as a result of which they decided not to play an active role. However, a separate legal representative to act in the interests of the child was appointed on 13 August 1987.

The department then decided to arrange for the child to be assessed by a child psychiatrist in order to obtain an opinion as to the advisability of supervised access. Dr Govan undertook that assessment, and saw the child on a number of occasions between 1 September 1987 and 8 August 1990.

On the first occasion of contact between Ms Dibden and the child, that is, on 27 June 1987, and following the examination by Dr Black, Ms Dibden telephoned an officer known to her at the Darlington police station. This was in accordance with departmental practice. She had a conversation with the police officer, as did Dr Black. As a result of that, on the same day the police officer attended at the appellant�s home and interviewed him. He denied the allegations. No charges were brought.

Previously a social worker had given written notification of alleged maltreatment of the child to the Noarlunga office of the department. That notification was no doubt given pursuant to s91 of the Act. It was that notification which triggered off the intervention of Ms Dibden and her action in taking the child and the child�s mother to Dr Black. The child�s mother consented to the medical examination, but had she not done so, no doubt the department could have insisted upon it by invoking its coercive powers contained in s93 of the Act.

In the circumstances which I have outlined, it cannot be disputed that Ms Dibden, and for that matter, the other officers of the department who had contact with the case, were acting within the framework of the Act.

Against that background it is necessary to consider whether or not the appellant established the element of proximity necessary to found a cause of action in negligence against the department.

In my opinion, the duties arising under the Act, and the obligations cast upon the department, once notified of a case of alleged maltreatment of a child, tell against the recognition by the Court of the necessary element of proximity. The learned trial Judge was right, in my view, when he said, during the course of his reasons for judgment: "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.

Although, as I have said, a person accused of sexual abuse may be affected by the investigation, it is hardly accurate to speak of a relationship between the department and the person accused in any relevant sense. Injury to a person accused resulting from an inadequate assessment of sexual abuse allegations may well be foreseeable, but a co-existing duty to the person accused would tend to conflict with the clear statutory duty to act in the interests of the child."

The recognition of a relationship of proximity such as to give rise to a duty of care towards the parents of a child whose welfare is the subject of investigation by the department in the exercise of its statutory powers and duties would be inimical to the proper and effective discharge by the department of its statutory role. Given that the overriding consideration to which the department must pay regard is the welfare of the child, the imposition of a common law duty of care vis a vis the parents would have a tendency to interfere with the due performance by the department of its statutory duties.

As the learned trial Judge put it: "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".

The learned trial Judge was correct in holding, as he did, that the same considerations are relevant to the appellant�s case against the two doctors. Their function was to assist the department in discharging its duties under the Act. It would be equally inimical to the implementation of the Act and its effectiveness in attaining the objectives spelled out in the Act with respect to the welfare of children if medical practitioners engaged by the department to furnish reports, or give other assistance with respect to the investigation and treatment of children whose welfare has become the concern of the department, were to be exposed to potential liability vis a vis the parents of a child in carrying out the necessary examinations, reporting to the department and in offering any treatment.

Of course, if neither Dr Black nor Dr Govan were liable at the suit of the appellant, the appellant�s case fails against both of the hospitals who employed the doctors.

I would, however, add some comments with respect to a particular matter of concern which arises as to the conduct of Dr Black.

While in my view no proper basis was established in the evidence upon which it would be right to advance any criticism of the manner in which she performed her examinations of the child, or the terms in which she reported subsequently to the department, at the conclusion of her examination she had a discussion with the mother of the child and Ms Dibden.

Ms Dibden�s evidence was in part: "Q. And your only real recollection of any interaction between you and Dr Black is at the end of some hours of waiting when Dr Black spoke to you and to Mrs Hillman together.

Q. Did Dr Black then have a reasonably lengthy discussion with you and Mrs Hillman about the results of her examination and interviews that she had conducted.

Q. I think she communicated to you a view of whether or not inappropriate sexual behaviour had occurred.

Q. And did she tell you that, in her view, the child�s behaviour, allegations and findings were consistent with a little child having experienced some form of sexual interference in the pretext of a game, or words to that effect.

A. Yes, she did. I�m not sure about the pretext of a game. I don�t remember that, but yes, that was the thrust of her view.

Q. Did Dr Black say that anything that indicated she was definitely certain that sexual abuse had occurred.

Q. Would it be fair to say that her expression of conclusions, that is diagnosis, was obviously a preliminary diagnosis by her.

Q. How would you describe the way in which she framed her conclusions.

A. Fairly cautious, which was my experience of Dr Black generally, fairly careful, but indicating there was clearly cause for concern.

Q. I suggest to you that Dr Black told you really no more than, that as a result of all her findings, that is as to the child�s behaviour, the allegations that had been made and the physical findings that she had made, all she was able to do was to form the view that these findings were consistent with the child having experienced some inappropriate sexual interference.

A. She certainly conveyed that. I think the impression I gained was that she thought it was a probability that it had occurred, which may be a little stronger.

Q. Did she also indicate that, in her view, the allegations were consistent with the father having been involved, that is Mr Hillman having been involved, as the person responsible for the sexual abuse.

Following that discussion, according to Ms Dibden�s evidence, the child�s mother was adamant that she did not want to go home. She said further that although she had appeared distressed from the time when Ms Dibden had earlier that day picked her and the child up from her home to take her to Dr Black, she "became significantly more distressed after Dr Black had talked to her about her views as a result of the investigation". Later she said (786): "Q. You told his Honour that after the assessment by Dr Black had

been completed and Dr Black had spoken to Mrs Hillman, that she was extremely upset.

Q. Is it the case that Mrs Hillman was quite adamant she was not going to return to live with her husband.

A. Yes, that�s my memory, that she was quite adamant.

Q. You didn�t urge her not to return to her husband.

I would have two comments to make about that evidence.

In the first place, I do not think that it was a proper discharge of her duties that Dr Black should have spoken of her opinion, albeit a tentative or preliminary opinion, in the presence of the mother. Dr Black was engaged by the department and should have confined her communications as to the result of her examination to the department alone. Indeed, the report which she ultimately forwarded to the department was marked "Strictly Confidential". I must say that there seems little point in marking the report to that effect, given that she had discussed her views with the mother.

In the ordinary course, Dr Black�s opinion would have been only one of the matters to be taken into account by the department in discharging its statutory role. In her report, Dr Black recommended that further investigations be made. Had events not taken their own course, and the mother departed from the matrimonial home with the child immediately following the examination, presumably there would have been further investigations by the department, at the conclusion of which the department would have made a decision as to whether to encourage the mother to remove the child from contact with the appellant, or to exercise its coercive powers to that end.

It was not for Dr Black to assume that any tentative or preliminary opinion which she had formed would be borne out by subsequent investigations by the department. She should have recognised that her opinion would be only one matter to be taken into account, and might be overwhelmed by other considerations or evidence of other matters which might be thrown up as the department proceeded with its investigations.

In those circumstances, Dr Black should have recognised an obligation to refrain from discussing her views with the child�s mother, and should have confined her communication of those views to the department. After all, her retainer was by the DCW, not the mother. Just as is the case, for example, with life assurance examinations by medical practitioners, when such a practitioner is engaged by a person other than the patient, it is to that other person and not to the patient that the results of the examination should be communicated. In X (minors) v Bedfordshire County Council (supra), Lord Browne-Wilkinson referred with approval to the analogy drawn by the Court of Appeal with a doctor instructed by an insurance company, and further observed: "He is under a duty not to damage the applicant in the course of the examination: but beyond that his duties are owed to the insurance company and not to the applicant."

On the other hand, in this case if the proper procedure had been followed, it would have been open to the department, once it had received Dr Black�s opinion, to have communicated it to the child�s mother. But in doing so, it would have been necessary for the department to consider whether or not it would have been in the interests of the child to follow that course.

Despite the denial by Ms Dibden of having influenced the decision of the child�s mother to take the child away from the matrimonial home, I find it difficult to accept the proposition that the discussion which took place between the child�s mother, Ms Dibden and Dr Black immediately following the latter�s examination of the child, did not precipitate a decision by the child�s mother to break off cohabitation with the appellant and take the child with her.

In the events which happened, instead of a proper and full investigation being conducted, in which the father of the child would have had an opportunity to answer the allegations, the situation was overtaken by the predictable consequence of premature disclosure to the mother, with the result that an orderly and proper investigation could no longer be conducted. Most importantly, this sequence of events, for all practical purposes, had the unfortunate consequence of destroying any possibility of maintaining the family unit, an end related to and ranking in importance with the welfare of the child.

In those circumstances, if she had in that way acted outside of the retainer which she had been given by the department, Dr Black might not have been entitled to the benefit of a finding that in those circumstances she owed no duty of care to the appellant.

There are, however, two countervailing considerations which, in my opinion, make it unnecessary further to pursue that aspect of the matter.

In the first place, the discussion with the mother took place in the presence of Ms Dibden. In those circumstances, it is at least arguable that it took place with the blessing of the department. Although I must add that even if it did, I am not persuaded that it is right practice for any such procedure to have been adopted. Dr Black�s duty in such circumstances was to suggest to Ms Dibden that any communication of her views, albeit preliminary, as to the child, should be communicated other than in the presence of the mother.

Be that as it may, the matter was dealt with during the course of his reasons for judgment by the learned trial Judge in the following manner (51): "During his final address Mr Kourakis argued that there were various ways in which loss occurred by reason of the actions of the defendants. He said that Dr Black communicated her opinion concerning the allegations to Miss Dibden and Mrs Hillman after the assessment and did not mention that further investigations were appropriate. This, it was said, contributed to Mrs Hillman�s decision to separate herself and Rebecca from the plaintiff, thus contributing, in turn, to the plaintiff�s psychiatric condition.

Mrs Hillman was present in court at an early stage of the trial but neither party called her as a witness. Without any evidence from her I find it difficult to attribute the communication of the opinion as a substantial contribution to her decision to separate or that it substantially increased the risk of harm which is said to have eventuated. In view of the previous marital discord, Mrs Hillman�s own suspicions of the plaintiff and, in particular, the fact that Rebecca had made the allegations it is in the realm of speculation to attribute significant cause to the conversation. It is true, as Mr Kourakis has pointed out, that Mrs Hillman wished to read Dr Black�s report at a later stage, but because of the manner in which Dr Black�s opinion was there expressed and the fact that the decision to separate had been made sometime before, it seems not to have played any role in the chain of events leading to loss."

Having regard to those findings by the learned trial Judge and despite my concern at the action taken by Dr Black, acquiesced in by Ms Dibden, I am unable to go so far as to suggest that the decision should be overturned, at least insofar as the action was dismissed against Dr Black.

The conclusions which I have so far expressed are sufficient to dispose of the appeal.

It is, therefore, strictly unnecessary to have regard to the fact whether, assuming a duty of care to have existed, there was evidence upon which it would be proper to find that there was a breach of the duty. It is sufficient to indicate that in my opinion the learned trial Judge was correct in his finding that even postulating the existence of a duty of care, the evidence would not have justified a finding that there was any breach of that duty.

Furthermore, even if the appellant had surmounted the hurdles of establishing the existence of a duty and its breach, there were serious difficulties in the path of the appellant with respect to causation. It is, however, unnecessary to deal further with those aspects of the matter.

I would prefer not to make any comment one way or the other as to the validity of the argument advanced by Mr Abbott QC on the hearing of the appeal as to the alleged entitlement of the two doctors to plead that the rule of law conveniently described as "witness immunity", operated to extinguish any cause of action which might otherwise have been capable of being pursued against them. I think it best that whether or not in circumstances such as this medical practitioners are entitled to the benefit of any such principle is best left to a case where the answer would be determinative of the proceedings.