DC v State of New South Wales

[2016] NSWCA 198

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	DC v State of New South Wales [2016] NSWCA 198
Hearing dates:	3 and 4 March 2016
Decision date:	10 August 2016
Before:	Basten JA at [1]; Ward JA at [161]; Sackville AJA at [373]
Decision:	(1) Appeal allowed. (2) In each of proceedings 2008/289325 and 2008/289326 set aside the judgment entered in favour of the first defendant and the orders made on 22 May 2015 by Campbell J (other than the order in relation to the costs of the second defendant of the respective proceedings to the extent that the second defendant has incurred costs separate from those of the first defendant in defending the proceedings) and in lieu thereof order (i) in both proceedings that judgment be entered for the plaintiff against the first defendant. (ii) in proceedings 2008/289325 (in which the plaintiff is DC) order the first defendant to pay to the plaintiff damages in the sum of $536,463.60 plus the sum of $790 for interest on past out of pocket expenses (the interest on past out of pocket expenses subject to provision to the respondent’s legal representatives of evidence of actual payment of those expenses). (iii) in proceedings 2008/289326 (in which the plaintiff is TB) order the first defendant to pay to the plaintiff damages in the sum of $939,435.60 plus the sum of $4,022 by way of interest on past out of pocket expenses (the interest on past out of pocket expenses subject to provision to the respondent’s legal representatives of evidence of actual payment of those expenses). (3) Submissions in relation to the question of costs of the appeal and of the proceedings below (no more than 3 pages) to be filed by the parties within 7 days, with the intent that costs orders will be made on the papers. (4) Liberty to the parties to apply within 3 days if there is any arithmetical error in the calculation of the amounts, having regard to these reasons, in accordance with the respective schedules submitted with the supplementary submissions.
Catchwords:	TORTS – negligence – liability of statutory authority – where authority notified of child physical and sexual abuse – whether finding that abuse did not continue in period after notification was erroneous – whether duty authority owed appellants in exercise of its statutory powers extended in the circumstances of this case to obligation to report abuse to police – whether failure to notify was a necessary condition of harm suffered by appellants
Legislation Cited:	Child Welfare Act 1939 (NSW), ss 4, 72(j), 73, 76, 78, 82(2), 125, 133, 134, 135, 136, 146, 148, 148A, 148B, 148C, 149, 158, Pt XIV; Pt XVII Children and Young Persons (Care and Protection) Act 1988 (NSW), s 9; Ch 3 Civil Liability Act 2002 (NSW), Pts 3, 5, ss 5B, 5D, 5E, 43A, 44, 46 Crimes Act 1900 (NSW), s 352 Crown Proceedings Act 1988 (NSW), s 5 Miscellaneous Acts (Community Welfare) Repeal and Amendment Act 1987 (NSW), s 3
Cases Cited:	Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 Bales v Parmeter (1935) 35 SR (NSW) 182 Board of Fire Commissioners of New South Wales v Ardouin (1961) 109 CLR 105 Bonnington Castings Ltd v Wardlaw [1956] AC 613; 1 All ER 615 Bowman v Farnell (1886) 7 NSWR 1 Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 Clarke v Bailey (1933) 33 SR (NSW) 303 Commonwealth v McLean (1996) 41 NSWLR 389 DC v State of New South Wales [2009] NSWSC 297 DC v New South Wales [2010] NSWCA 15 Farnell v Bowman (1887) 12 App Cas 643 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 Maguire v Simpson (1977) 139 CLR 362 Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 Michael v The Chief Constable of South Wales Police [2015] UKSC 2 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 Nicholson v Nicholson (1994) 35 NSWLR 308 Petchell v Du Pradal [2015] QCA 132 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 Pyrenees Shire Council v Day (1998) 192 CLR 330; [1998] HCA 3 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 Robinson Helicopter Company Inc v McDermott [2016] HCA 22 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; [1998] HCA 5 Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; 3 DDCR 1 State of New South Wales v Burton [2006] NSWCA 12 State of New South Wales v Burton [2008] NSWCA 319 Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215 Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537 TB v State of New South Wales [2009] NSWSC 326 TB v State of New South Wales and Quinn; DC v State of New South Wales and Quinn [2015] NSWSC 575 TC v State of New South Wales [2001] NSWCA 380 Van Colle v Chief Constable of the Hertfordshire Police; Smith v Chief Constable of Sussex Police [2009] AC 225 Wallace v Kam [2013] HCA 19; 250 CLR 375 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 X (Minors) v Bedfordshire County Council [1995] 2 AC 633
Texts Cited:	Harold Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2003, LexisNexis Butterworths)
Category:	Principal judgment
Parties:	DC (First Appellant) TB (Second Appellant) State of New South Wales (Respondent)
Representation:	Counsel: A S Morrison SC with K Pryde and N Morrissey (Appellants) Ms P Wass SC with I Harvey (Respondent)   Solicitors: Graham Jones Lawyers (Appellants) Crown Solicitor’s Office (Respondent)
File Number(s):	2015/00176396
Publication restriction:	Restriction on identification of appellants
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2015] NSWSC 575 Date of Decision: 22 May 2015 Before: Campbell J File Number(s): 2008/00289325; 2008/00289326

HEADNOTE

[This Headnote is not to be read as part of the judgment]

The appellants, DC and TB, are sisters who, as children, suffered ongoing sexual and physical abuse by their stepfather. They commenced proceedings against the State of New South Wales and Ms Quinn, a case officer with what was then the Department of Youth and Community Services (the Department), claiming damages for the alleged breach of a duty of care owed to them. An extension of the limitation period was granted for the bringing of those claims.

The claims relate to a period of a few months commencing from the time TB first complained of the abuse to the Department in April 1983. The appellants contended that the Department breached its duty by not reporting the abuse to the police and that, had it done so, they would have been protected from the possibility of any further abuse on the basis that the step-father would have been charged. In 2001, the appellants reported the abuse to the police. After the commencement of the criminal trial in 2005, the stepfather pleaded guilty to nine charges.

At the time of the abuse, the powers and obligations of the Department’s officers were governed by the Child Welfare Act 1939 (NSW). Under s 148B of that Act, on notification to the Director of certain matters involving the abuse or neglect of children, the Director was required to cause an investigation to be undertaken. Where satisfied that abuse had occurred, reporting to police was a possible but not mandatory course of action.

At trial, the appellants argued that the duty of care owed to them by the Department extended to a requirement that their complaints should have been reported to the police, pursuant to the power conferred on the Director by s 148B(5) of the Child Welfare Act. The State did not contend that the statutory power relied upon (s 148B(5)) had not been engaged in the present case and conceded that it owed a common law duty to exercise its statutory powers with reasonable care, but disputed that the duty extended to a duty to report the abuse to the police, argued for a finding that the abuse had been reported, and denied that any abuse had occurred in the post-April 1983 period.

The primary judge gave judgment in favour of the State and Ms Quinn. His Honour found that the Department owed each of the appellants a duty to use reasonable care in the exercise of its powers under s 148B(5) of the Child Welfare Act, that the scope of that duty included a duty to report the abuse to the police, and that the complaints had not been so reported; but was not satisfied that the step-father had, on the balance of probabilities, continued to abuse the appellants in the period after complaint was made to the Department. The claim against Ms Quinn failed on the basis that she owed no duty in relation to the s 148B(5) powers and that, even if she did, she had discharged that duty. His Honour made contingent findings as to the damages he would have awarded had he given judgment for the appellants, applying a discount of 70% on account of pre-notification abuse (for which the Department had no legal responsibility).

On appeal, the appellants challenged the factual finding that the abuse did not continue after the complaint to the Department. There was no challenge to the findings in relation to Ms Quinn and she was not a party to the appeal. By way of notice of contention, the State challenged his Honour’s findings as to the scope and content of the duty, namely that the duty encompassed an obligation to report the abuse to the police. The State accepted that, if the appellants succeeded in establishing liability, no challenge was made to the allowance of 30% of the total loss as their damages.

Held,allowing the appeal by majority:

per Ward JA (Sackville AJA agreeing at [373]):

(1)   The primary judge’s finding that the abuse had not continued post-April 1983 was based largely, if not wholly, on the lack of a report of such abuse in the contemporaneous documentation rather than on the credibility of the respective witnesses. Hence the appellate restraint mandated in this regard by Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 does not preclude an assessment by this Court of the documentation on which his Honour relied in coming to that conclusion. Taking all the evidence together, the abuse continued in the period after April 1983: [179], [242], [253].

(2)   The duty of care owed to the appellants was a duty in the exercise of the statutory powers under the Child Welfare Act to take all reasonable steps in the circumstances of the appellants’ case to protect them from the risk of further physical and sexual abuse and notification of the abuse to the police was required in order to satisfy this duty: [275]-[276].

(3) The primary judge did not err in concluding that, had there been further ongoing abuse in the period post-April 1983, this would have made a material contribution to the appellants’ harm: [349].

(4) Having regard to the position adopted by the parties on the appeal, there should be an award of damages in favour of each of the respective appellants as provisionally assessed by the primary judge: [181]; [357].

per the Court:

(5)   By Ward JA (at [322]), (Basten JA (at [96]) and Sackville AJA (at [373]) agreeing), the primary judge did not err in finding that the complaints of abuse against the step-father were not reported to the police.

per Basten JA (in dissent):

(6) The scope of the duty of care owed to the appellants by the State through its officers in the Department, was to take reasonable steps in exercising statutory powers to protect victims of child abuse; it did not extend to an obligation to report to police the allegations of criminality. The powers conferred by s 148B to report to police were discretionary and their primary statutory purpose was child protection; not prosecution: [79]; [81]; [93].

(7)   The primary judge did not err in failing to be satisfied as to the continuation of the abuse on the evidence before him. His Honour’s conclusion that the abuse did not continue after complaint to the Department were based on credibility findings with respect to DC, TB and Ms Quinn; there is nothing to suggest that those findings were erroneous on any of the bases identified in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118: [8]; [151]-[152].

(8) In the absence of any finding of ongoing abuse after the complaints were made, the officers in the Department were not in breach of their duty of care to the appellants: [159].

(9) It was arguable that s 148B(5) was not engaged at all because this case was not concerned with a “notification” of child abuse and there was no evidence as to the state of satisfaction of the Director. However, as the State did not dispute that s 148B(5) was engaged, the case cannot be determined on those grounds: [93] (obiter).

Judgment

INDEX

BASTEN JA						1
A	Introduction						2
B	Scope of duty of care
(1)		The pleaded duty				12
(2)		Findings of trial judge				23
(3)		State’s contention on appeal				26
(4)		Principles for determining scope of duty				32
(a)		statutory context – Child Welfare Act		33
(b)		reliance on inter-departmental guidelines		56
(c)		general principles		62
(d)		operation of the Civil Liability Act		77
(5)		Scope of duty – application of principles
(a)		did the duty encompass an obligation to report to police		79
(b)		what triggered the duty?		87
(c)		error in judgement at trial		88
(6)		Scope of duty – conclusions		93
C	Breach of duty
(1)		Finding of breach by State				96
(2)		Finding of no negligence by Ms Quinn				102
(3)		Negligence of other officers				120
(4)		Did the abuse continue after complaint to YACS?
(a)		whether complaints of on-going abuse		133
(b)		continuing abuse of TB		138
(c)		continuing abuse of DC		143
(d)		no basis for interference		150
D	Damages						153
E	Conclusions						159
WARD JA:						161
Appeal					176
Additional Background					182
Proceedings					207
Grounds 1-15 of the grounds of appeal – finding that sexual abuse did not continue after notification to Department of abuse in April 1983					217
Relevant Findings			218
Appellants’ submissions			230
Respondent’s submissions			238
Determination			241
Notice of Contention					255
Relevant Findings			256
Ground 1 of the notice of contention – whether duty of care required report to the CMU/police					266
Determination			270
Grounds 2 and 3 of the notice of contention – breach of duty					277
Relevant Findings			278
Respondent’s submissions			284
Appellants’ submissions			316
Determination			318
Grounds 16 and 17 of the grounds of appeal – damages					329
Relevant findings			331
Appellants’ submissions			332
Respondent’s submissions			338
Supplementary submissions as to damages			342
Non-economic loss	344
Interest on past loss of superannuation	346
Interest on past out of pocket expenses	347
Determination			349
Orders					372
SACKVILLE AJA:						373
The Civil Liability Act					375
The Post-April 1983 Abuse					378
The State’s Liability for Damages					388
Additional Observations					404

1. BASTEN JA:

A   INTRODUCTION

2. The appellants are two women who, as young girls, suffered appalling sexual abuse at the hands of their stepfather, LX. Their entitlement, both moral and legal, to substantial compensation for the very serious psychiatric harm done to them, is undeniable. However, this was not a claim against the tortfeasor whose conduct directly caused the harm; rather, it was brought against the State for failing to prevent the criminal acts of another person. Thus the appellants lodged claims against the State of New South Wales and Carolyn Quinn, a district officer in the Department of Youth and Community Services. The allegation on which the claims were founded was that the second defendant, Ms Quinn, while taking appropriate steps to protect the appellants under the child welfare legislation, failed to report the conduct to the police. The legal question is at what point did the failure of officers in the employ of the State who were actively seeking to protect the claimants result in the State bearing the liability for any ongoing abuse?

3. There were numerous difficulties which confronted the appellants in pursuing these claims. First, they did not commence proceedings until 2008, 24 years after the conduct in question terminated. They required a lengthy extension of time, which was granted. Nevertheless, that lapse of time affected the available evidence. Records which would have been available at an earlier point in time are not available; memories have deteriorated.

4. Secondly, the abuse relied upon occurred within a period of a few months, the precise period differing in respect of each appellant. Whether any abuse took place in that period was itself contested. The relevant period commenced no earlier than the first complaint to the then Department of Youth and Community Services (YACS) and concluded less than a year later. However, the first sexual assault on TB had occurred more than eight years earlier, when she was seven and a half years old. The first assault on DC occurred some six months after the first assault on TB, when DC was four years old. The assaults included penile/vaginal intercourse and fellatio. The fact that the children suffered shocking abuse for many years and at such young ages made it difficult for them to establish that any identifiable part of the psychiatric harm suffered resulted from the abuse which occurred after the conduct of the stepfather was drawn to the attention of the welfare authorities.

5. Thirdly, there was a large question as to the scope and content of the duty of care owed to abused children by the State, or by individual officers in the YACS, once the abuse came to their attention.

6. Fourthly, even assuming that, in the circumstances of each case, there was a legal duty of care requiring that the district officer (or a superior) inform the police of the criminal conduct perpetrated by the stepfather, it was necessary to prove that the police would have taken steps which would have been effective to prevent the continuation of that conduct, in circumstances where orders made by the Children’s Court failed.

7. The relevant welfare legislation in force in 1983-84, when the causes of action relied upon by the appellants were said to have arisen, was the Child Welfare Act 1939 (NSW). [1] The appeal requires consideration of the terms of the specific provisions relied on by the parties, which will be addressed below. The trial judgment focused on two factual questions, namely (a) whether the complaints of child abuse were reported to the police and (b) whether the abuse continued after the complaints were made. The appellants succeeded on (a), the trial judge being satisfied that there was no reporting to police, but failed on (b), the trial judge not being satisfied that LX continued to abuse them after the report to YACS. [2]

   1. Repealed, 29 May 1987, by the Miscellaneous Acts (Community Welfare) Repeal and Amendment Act 1987 (NSW), s 3.

   2. TB v State of New South Wales; DC v State of New South Wales [2015] NSWSC 575 (Campbell J). (Paragraph numbers used below are those to be found in the on-line version, not in the hard copy provided to the parties.)

8. I am not persuaded that the judge was wrong in failing to be satisfied as to the continuation of the abuse, on the evidence before him. In particular, the issue depended critically on his assessment of the reliability of evidence given by the appellants. This Court has not seen the appellants give evidence and, in accordance with standard principles of restraint in such circumstances, those findings should not be overturned.

2. There are, however, also large questions as to the correct legal analysis; that adopted by the trial judge was for the most part favourable to the appellants. A notice of contention filed by the State challenged the claim that the scope of the common law duty of care included a duty to report the child abuse to the police. Senior counsel for the State argued that that duty was potentially inconsistent with the statutory functions imposed on officers in YACS and should not have been accepted. That contention should be accepted.

3. Further, whether or not the abuse continued after the complaints were made and vigorously investigated and proceedings taken in the Children’s Court, there was no evidence that the district officer (or anyone else in YACS) knew of the continuing abuse; hence any duty to take further steps to protect the children was not triggered.

4. The end result is that the appeal of each appellant should be dismissed.

B   SCOPE OF DUTY OF CARE

(1)   The pleaded duty

12. Although the principal ground of appeal challenged the factual finding that the abuse did not continue after the complaints to YACS, it is logical to commence with the State’s contention that the trial judge erred in finding that its duty of care extended to reporting the complaints of abuse to the police.

13. The scope of any duty of care owed to the appellants must be identified at a level of generality consistent with the need for it to arise prospectively and not retrospectively in the light of the deleterious consequences suffered by the appellants. Nevertheless, any formulation, particularly in circumstances where the conduct of the respondents derives from the exercise of, or failure to exercise, statutory powers, must relate specifically to the nature of the power and the circumstances in which it is engaged.

14. It is also necessary to be precise as to the duty owed by the respondent. While the claim against Ms Quinn failed on the basis that she did not breach any duty of care, a finding not challenged on the appeal, the basis of the proposed liability of the State must be articulated.

15. The statement of claim alleged both that the State itself owed the appellants a duty, and that it was vicariously liable for the negligence of officers in YACS. The direct duty was based upon “the relationship” between the State and each appellant, which was described as “close” and envisaged the State “considering the conduct of [LX].” [3] It alleged numerous particulars of both defendants’ “awareness” of the circumstances of the complainants. [4] However, the legal basis for a direct duty owed by the State was not identified. The State is a juristic person, but, like a corporation, it will act through individuals and its “awareness” of facts will derive from that of its officers. No statute or common law principle was identified which imposed duties on the State, as an entity. While the State was sued pursuant to s 5(2) of the Crown Proceedings Act 1988 (NSW), neither that section nor its predecessors created a cause of action. [5]

    3.    Second further amended statement of claim, par 52(a).

    4.    Second further amended statement of claim, pars 46 and 52.

    5. Bowman v Farnell (1886) 7 NSWR 1; Farnell v Bowman (1887) 12 App Cas 643; Maguire v Simpson (1977) 139 CLR 362.

16. Almost identical allegations were made with respect to Ms Quinn, which involved at least an implicit acknowledgment that it was the knowledge and actions of a public officer which lay at the heart of the liability of the State. It was otherwise inherently implausible that a junior public employee would have the same legal status and obligations as the State. [6] Indeed, the trial judge, in dismissing the claim against Ms Quinn, expressly so concluded. [7]

    6.    Second further amended statement of claim, par 53.

    7. Judgment at [111].

17. The claimants also pleaded that the State was vicariously liable for the acts and conduct of both Ms Quinn and, generically, “YACS’ officers and employees.” [8] That claim was soundly based in legal principle. It was no doubt the last element which led the trial judge to speak in terms of a duty of care owed by “the Department”. However, a department of government is not, absent statutory provision to the contrary, a juristic person and there is a real risk in identifying a duty of care by reference to such an organisation. If the State is to be held vicariously liable for the negligence of an officer, the officer should be identified in some way (even by reference to an office) in order to prove that he or she was negligent. The duty to report to police was founded in the functions of Ms Quinn’s supervisors.

    8.    Second further amended statement of claim, par 56.

18. There is a further question raised as to the pleading of the particular duty in the present case, which was in broad terms:

“(a)   to take all reasonable steps to ensure the welfare of the plaintiff and the plaintiff’s sister; and

(b)   to take all reasonable steps to protect the plaintiff and the plaintiff’s sister from any further physical, emotional or sexual abuse by [LX].”

19. There is a difficulty with the formulation of a duty in such broad terms. As a matter of political theory, it may be accepted that there are reciprocal obligations between the State and its citizens. The obligations of the State include a duty to protect citizens from harm. The establishment and maintenance of a police force and officers responsible for enforcing child welfare legislation provide core elements of the response to that duty. The failure to provide minimal acceptable protection to classes of citizens who fall within specified categories may attract the surrogate protections provided under international law, such as the 1951 Convention Relating to the Status of Refugees. However, for domestic legal purposes, the obligation of the State requires more precise definition. In relation to children, the State does not bear the primary obligation to care for and protect them. Rather, the primary obligation lies with the parents or broader family. It is only where that protection fails that the statutory powers of the State are engaged.

20. The defence pleaded in response:

“a.   The [State] says that the scope of any duty of care owed by it to the plaintiff is confined by that which arises from the [Child Welfare Act], in particular s 148B of the [Child Welfare Act] read with s 158 [Child Welfare Act]; and

b.   The [State and Ms Quinn] say that in 1983 and 1984 they did not owe a general duty of care to the plaintiff or a duty of the scope or content apparently contended by the plaintiff ….”

21. The terms of s 148B of the Child Welfare Act will be addressed, in its statutory context below; the key provision, subs (5), read as follows:

(5)   Where the Director has been notified under subsection (2) or (3), he shall –

(a)   promptly cause an investigation to be made into the matters notified to him; and

(b)   if he is satisfied that the child in respect of whom he was notified may have been assaulted, ill-treated or exposed, take such action as he believes appropriate, which may include reporting those matters to a constable of police.

22. Section 158(1) was in the terms set out at [50] below, where its effect is discussed. Suffice it to say that it is primarily directed to intentional torts.

(2)   Findings of trial judge

23. The claimants’ case at trial was that the duty of care owed to them by officers in YACS extended to a requirement that their complaints about LX should have been reported to police, pursuant to the power conferred on the Director by s 148B(5). The trial judge accepted that submission, holding:[9]

“The Department owed each of TB and DC a duty actionable under the law of negligence to use reasonable care in the exercise of its powers conferred by s 148B(5) [of the Child Welfare Act].”

9. Judgment at [7].

24. The trial judge correctly distinguished the position of Ms Quinn, stating:[10]

“As the evidence in the case makes clear, the District Officer was a relatively junior and young officer accountable in the performance of her duties to the senior officers to whom she reported. It may have fallen to her to implement appropriate action under s 148B(5)(b), but she was not legally responsible for the exercise of the statutory power, or discretion. It is not appropriate to impute the duty owed by the Department, concurrently to the District Officer.”

10. Judgment at [32].

25. At no stage did the trial judge find that the State owed a direct duty of care to the appellants. The absence of such a finding was not challenged on the appeal and, as noted above, the existence of such a duty was at least legally implausible. Further, Ms Quinn was not joined as a party to the appeal and there was no challenge to the finding that she did not owe a duty of care. It follows that the appeal must be assessed on the basis that the State was vicariously liable for negligence of other officers in YACS.

(3)   State’s contention on appeal

26. On appeal the State filed a notice of contention in the following terms:

“In the context of an initial finding that the respondent had a legal duty to take reasonable care in the exercise of its statutory powers, his Honour … erred in finding that the common law imposed a duty on the respondent to report a matter of child abuse to the NSW Police Child Mistreatment Unit (CMU).”

27. The appellants understood the State’s position as follows: [11]

“There is no challenge to his Honour’s finding that the Respondent owed each Appellant a common law duty to take reasonable care in the exercise of its statutory powers. The challenge is to the content of the duty.”

11.    Appellants’ submissions in reply, 15 February 2016, par 31.

28. That the State conceded that it owed a duty of care to children in respect of whom protection was sought, to exercise its statutory powers with reasonable care, is unsurprising. The distinction between that concession and the challenge to the alleged scope of the duty is important and reflected in the authorities. For example, in Roads and Traffic Authority of New South Wales v Dederer [12] there was no dispute that the RTA owed a duty of care to all members of the public in the exercise of its bridge building functions. [13] The critical question was, as often in relation to claims against statutory authorities, not whether a duty was owed, but rather the scope of the duty. As Gummow J explained in Dederer, duties of care are not owed in the abstract, but are “obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question.”[14]

    12. (2007) 234 CLR 330; [2007] HCA 42.

    13. Dederer at [47].

    14. Dederer at [43].

29. Similar reasoning may be found in many judgments in many cases. Kirby J stated in Romeo v Conservation Commission of the Northern Territory:[15]

“[122]   It is one thing to hold that a person owes a duty of care of some kind to another. But the critical question is commonly the measure or scope of that duty. The failure to distinguish these concepts can only lead to confusion.

[123]   The ordinary formulation of the common law is that a body such as the Commission must take reasonable care to avoid foreseeable risks of injury to persons entering an area such as the reserve, including the cliffs, as of common right. [16] However, that expression of the duty must be elaborated if it is to be of any practical guidance.”

15. (1998) 192 CLR 431; [1998] HCA 5.

16. cf Nagle (1993) 177 CLR 423 at 429-430.

30. Hayne J, in Romeo, also spoke in emphatic terms:[17]

“It was not (and could not be) seriously suggested that the respondent in this case owed no duty of care to members of the public that might go to areas which it manages. The real subject for debate was what that duty required of it, for it is only when the content or scope of the duty is identified that questions of breach and causation of damage can be considered.”

17. Romeo at [149].

31. It is the scope of duty which was in issue in the present case.

(4)   Principles for determining scope of duty

32. In these circumstances, it is necessary to consider the nature and scope of the “common law duty” conceded to be owed by officers of the State attaching to the exercise of specific “statutory powers”, for breach of which it would bear vicarious liability. The starting point for this exercise must be the identification of the statutory power relied upon by the appellants. There are reasons for doubting the assumption that s 148B(5), was engaged, or that it envisaged reporting to police for the purposes of prosecution, rather than the carrying out of functions under the Child Welfare Act itself. As neither of these points of statutory construction was relied on by the State, the case cannot be determined on these grounds. However, because the scope of the common law duty depends on the purpose of the statutory power it is necessary to have regard to the operation of the Child Welfare Act.

(a) statutory context - Child Welfare Act

33. The Child Welfare Act reflected a philosophy which has long since been abandoned. Part XIV was headed “Committal of Neglected or Uncontrollable Children or Young Persons [18] or of Juvenile Offenders.” (Parental neglect and offences by a child were rolled up in one Part.) Pursuant to s 76, an officer authorised by the Minister, or a police constable, was empowered to apprehend a child “who he has reason to believe is a neglected or uncontrollable child”. The term “uncontrollable” meant a child “who is not being or cannot be controlled by his parent or by any person having his care.”[19] The definition of “Neglected child”, contained in s 72, ran to 16 paragraphs. It included the following:

(g)   whose parents are drunkards, or, if one be dead, insane, unknown, undergoing imprisonment, or not exercising proper care of the child …, whose other parent is a drunkard; or

…

(j)   who in the opinion of the court is under incompetent or improper guardianship; or

…

(l)   whose parents are unfit to retain the child … in their care…; or

…

(n)   who is falling into bad associations or is exposed to moral danger ….

18.    A “young person” was aged 16-18; a child was under 16. As the appellants were under 16 at the time of the alleged negligence it is sufficient to refer to the provisions as they applied to children.

19. Child Welfare Act, s 4(1) “Uncontrollable”.

34. There was power for a justice to issue a warrant for the apprehension of a child or young person where an authorised officer or constable of police, “having made due inquiry,… believes any child … to be a neglected or uncontrollable child”. [20] A child apprehended pursuant to such a warrant was to be taken to a shelter and, as soon as practicable thereafter, brought before a court. [21] The court was given power in the following terms:

    20. Child Welfare Act, s 73.

    21. Child Welfare Act, s 78.

82.   (1)   If a court finds that a child … is a neglected or uncontrollable child … it may‑

(a)   admonish and discharge the child …; or

(b)   release the child … on probation upon such terms and conditions as may be prescribed or as the court may, in any special case, think fit, and for such period of time … as the court may think fit; or

(c)   commit the child … to the care of some person who is willing to undertake such care upon such terms and conditions as may be prescribed or as the court may, in any special case, think fit, and for such period of time … as the court may think fit; or

(d)   commit the child … to the care of the Minister to be dealt with as a ward admitted to State control; or

(e)   commit the child … to an institution, either generally or for some specified term … not exceeding three years.

(2)   If a court finds that a child is a neglected child it may release the child‑

(a)   upon such terms and conditions as the court may think fit and as are willingly undertaken to be observed by the child’s parents, one of the child’s parents or another person approved by the court; and

(b)   for such period of time … as the court may think fit.

35. The claimants did not discuss these powers, but they were relevant to the steps taken by Ms Quinn involving applications to the Children’s Court. Rather, the claimants alleged a failure to exercise a power arising under s 148B(5), which appeared in Pt XVII, entitled “Procedure, Penalties and General Provisions.” The first section in that Part (s 125) set out a presumption that the Minister or any officer had authority to do any act or take any proceedings. There were coercive provisions, for example, for medical examinations to determine whether the child or young person was suffering from venereal disease. [22] There were also provisions allowing for the removal of a child to a place of safety and his or her detention there, pending investigation.

135.   Any officer authorised by the Minister in that behalf or any constable of police may take any child …, in respect of whom there is reason to believe that an offence has been committed, to a shelter, and such child …, and any child … who seeks refuge in a shelter, may be there detained until he can be brought before a court.

136.   (1)   Where it appears to a court or any justice that an offence has been committed in the case of any child … brought before such a court or justice, and that the health, welfare or safety of the child … is likely to be endangered unless an order is made under this section, the court or justice may, without prejudice to any other power under this Act, make such order as circumstances require for the care of the child … until a reasonable time has elapsed for the bringing and disposing of any charge against the person who appears to have committed the offence.

(2)   An order under this section may be enforced notwithstanding that any person claims the custody of the child ….

22. Child Welfare Act, ss 133 and 134.

36. There was further provision for a magistrate or justice, on information on oath establishing a reasonable cause to suspect that a child was neglected, “or has been or is being ill-treated or neglected in a manner likely to cause the child …unnecessary suffering, or to be injurious to his health and welfare” to issue a warrant authorising search for and detention of the child by a police constable or officer. If brought before the court, there was power to “commit the child … to the care of some person named by the court or make such other order as to the care of the child … as the court may think fit.”[23]

    23. Child Welfare Act, s 146(1).

37. Section 148B was placed between provisions making it an offence to neglect to provide for children (s 148(1)), ill-treating any ward (s 148(2)), tattooing a child (s 148A) and a provision concerning assault or ill-treatment of a child (or exposing any child to assault or ill-treatment) which may result in bodily suffering or permanent or serious injury to the health of the child (s 149(1)).

38. By contrast, s 148B was procedural and dealt with “notification of certain injuries to children”, [24] while s 148C conferred power on the Director or a constable of police to require a child believed to have been assaulted or ill-treated to be medically examined. The critical provisions in s 148B were as follows:

    24.    See marginal note.

148B.   (1) In this section—

"court", except in subsection (7)(d), means any court;

"prescribed person" means—

(a)   a medical practitioner; and

(b)   a person who is a member of any class of persons prescribed for the purposes of this paragraph, being a person who follows a profession, calling or vocation, other than a solicitor or barrister in the course of his profession, so prescribed, or who holds any office so prescribed.

(2)   Any person who forms the belief upon reasonable grounds that a child—

(a)   has been assaulted; or

(b)   is a neglected child within the meaning of Part XIV,

may—

(c)   notify the Director of his belief and the grounds therefor either orally or in writing; or

(d)   cause the Director to be so notified.

(3)   A prescribed person who, in the course of practising his profession, calling or vocation, or in exercising the functions of his office, as the case may be, has reasonable grounds to suspect that a child has been assaulted, ill-treated or exposed shall—

(a)   notify the Director of the name or a description of the child and those grounds either orally or in writing; or

(b)   cause the Director to be so notified,

promptly after those grounds arise.

(4)   A prescribed person who fails to comply with subsection (3) shall be guilty of an offence against this Act.

(5)   Where the Director has been notified under subsection (2) or (3), he shall—

(a)   promptly cause an investigation to be made into the matters notified to him; and

(b)   if he is satisfied that the child in respect of whom he was notified may have been assaulted, ill-treated or exposed, take such action as he believes appropriate, which may include reporting those matters to a constable of police.

39. The reference in s 148B(5) to “the Director”, was a reference to the permanent head of the Department of Youth and Community Services. [25] The remaining subsections (being subs (6), (7) and (8)) provided protection for a person notifying the Director and conferred immunity from liability in defamation and other torts, immunity from professional discipline and a right not to be required to produce the notification or evidence of its contents.

    25. Child Welfare Act, s 4(1), “Director”.

40. One possible question was whether s 148B was engaged at all on the facts of this case. The trial judge held that it was because the relevant “notification” was either a telephone call from TB immediately prior to 20 April 1983, or statements made to the district officer during an interview with TB at Blacktown High School on 20 April 1983. [26] There are two difficulties with that finding, one factual and one legal; the difficulties are inter-related. The factual difficulty is that Ms Quinn was not the Director. Nor was there a case run that, in referring to “the Director” the section should be read as referring to “any officer of the department”. Nor was it suggested that the Director had delegated his or her powers (or that there was a power of delegation), nor that there was some implied authority on the part of Ms Quinn to act for the Director, of the kind implied in Carltona Ltd v Commissioner of Works. [27] There are in any event reasons, to be noted shortly, for rejecting any such express or implied expansion of the role of the Director, a proposition accepted by the trial judge and not challenged on the appeal.

    26. Judgment at [19].

    27. [1943] 2 All ER 560.

41. The other problem faced by this construction of the section is that it did not envisage, nor is it directed to, a complaint by an abused child. Subsection (2) identified a person who has formed a belief based on reasonable grounds that a child (clearly not the person) has been assaulted. The purpose of the section was to allow members of the community to notify a senior government officer of cases of suspected child abuse, with protection from civil liability where the “notification” was based upon reasonable grounds. Subsection (3) went further: it imposed an obligation on medical practitioners and certain other professionals to report a suspicion of child abuse, again based on reasonable grounds.

42. Once the statutory context is understood, the use of mandatory language in subs (5) with respect to the Director, is readily explained. Where a notification had been made under one of two earlier provisions in the same section, the Director was, in effect, required to take it seriously and cause an investigation to be undertaken. There was no suggestion in the statutory language that all complaints of child abuse were to be treated in this way, no matter what the source, nor that the protections with respect to notifications under the section would apply to complaints generally. The concept of “notification” was not to be equated with any “complaint”, nor the unqualified formation of a belief by an authorised officer or a police constable.

43. Further, subs (5) did not expressly envisage that the Director would cause an information to be laid before a court. The powers of the Director on satisfaction that there may have been child abuse would undoubtedly have extended to the provision of the relevant material to an authorised officer or to a police constable, who could then take steps to have the child brought before a magistrate in accordance with the provisions relating to neglected children.

44. Finally, the scope of the powers conferred on the Director were not expressly constrained in subs (5)(b), although the action considered appropriate would ordinarily have referred to action under the Child Welfare Act. The express reference to reporting to a police constable did not involve any limitation on the use which might be made of that information by the police constable. In other words, whether the constable could only exercise powers conferred under the Child Welfare Act (referred to above) or could institute criminal proceedings against a suspected offender was not addressed. However, there are reasons for thinking that reporting to a constable of police was not intended as a mechanism for instituting criminal proceedings.

45. There are several reasons for the last conclusion. First, it is clear that police constables were given specific powers under the Child Welfare Act and the referral of matters to a police constable under a section of the Child Welfare Act would ordinarily be understood as a basis upon which that constable might exercise powers conferred under that Act. Secondly, if the purpose of the power conferred on the Director were to allow the commencement of criminal proceedings, it is curious that the Director (as the head of YACS) did not report to an officer of similar standing in the hierarchy of the Police Force. Thirdly, the protections for the notification in subs (6), (7) and (8) did not expressly address the possibility of the notification becoming relevant in criminal proceedings.

46. The primary purpose of an arrest is not to protect the victim (except, where the offence is being committed or may be repeated). The general principle has always been that the person arrested is to be taken as soon as practicable before a magistrate to be dealt with according to law; that is, to answer a charge which may be laid against the person, usually for the offence for which the arrest was undertaken. That was true, both under the common law, and under the Crimes Act 1900 (NSW), s 352, as in force in 1983. [28] As explained by Jordan CJ in Bales v Parmeter:[29]

“But suspicion that a person has committed a crime cannot justify an arrest except for a purpose which that suspicion justifies; and arrest and imprisonment cannot be justified merely for the purpose of asking questions. … But the statute, like the common law, authorises him only to take the person so arrested before a justice to be dealt with according to law, and to do so without unreasonable delay and by the most reasonably direct route ….”

28. See Clarke v Bailey (1933) 33 SR (NSW) 303 at 309 (Davidson J, Street CJ and James J agreeing).

29. (1935) 35 SR (NSW) 182 at 188-189.

47. That is not to suggest that criminal proceedings would be instituted without regard to the interests of the complainant. The psychological fragility of a complainant would almost certainly have been taken into account in determining whether to proceed with a prosecution. The point is, rather, that the purpose of an arrest is to maintain a criminal prosecution and not, primarily, to protect the victim from further assaults.

48. None of this is to say that the Director, having been satisfied by an investigation that child abuse had occurred, would have been precluded from taking steps to have a suspected offender prosecuted. On the other hand, there is no basis for construing s 148B(5) as imposing any duty to take that step: it is a discretionary power. If s 148B(5) were not engaged in the present case, the basis of the common law duty relied on in the proceedings should have fallen away. [30] Nevertheless, no such argument was adopted by the State; on the contrary it embraced the engagement of s 148B(5), and guidelines formulated under it, in support of an inference that the offending conduct was in fact referred to police.

    30. These construction issues appear to have been resolved in the current law, being Ch 3 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

49. Regardless of the foregoing doubts about the application of s 148B, its purpose is, in keeping with its statutory context, to enhance the protection of young persons and children from child abuse.

50. The trial judge also made reference to the provision in the Child Welfare Act which was protective of officers:

158(1)   No suit or action shall lie against the Minister or any officer or employee of the Department of Youth and Community Services for or on account of any act, matter or thing done or commanded to be done by him, and purporting to be done for the purpose of carrying out the provisions of this Act, if the Minister or the officer or employee has acted in good faith and with reasonable care.

51. Most powers to which the statutory immunity applies will involve coercion, or otherwise entrench upon general law liberties or rights. [31] It will provide a level of protection in respect of the exercise of statutory functions, including those which may (absent statutory authority) involve intentional torts, or breaches of duty, neither of which is relevant in this case. In any event, s 158 provides a defence; it does not create liability. Because it will not provide a defence to a claim in negligence it can say nothing about whether any such cause of action may arise in carrying out a particular provision of the Act. At best, s 158 could be seen as recognising the existence of a duty of care, which was not in dispute.

    31. Board of Fire Commissioners of New South Wales v Ardouin (1961) 109 CLR 105.

52. As with the current legislation, it should be accepted that the Child Welfare Act was required to be administered in accordance with the principle that any action or decision concerning a particular child or young person must treat as paramount the safety, welfare and well-being of the child or young person. [32] The administration of child welfare legislation often involves difficult questions as to where and to what extent protection within the family has failed and as to the best mechanisms for rectifying the situation. These matters require the exercise of judgment and, where persons are to be removed from the family home, a court order.

    32. See now, Children and Young Persons (Care and Protection) Act 1998 (NSW), s 9(1).

53. Despite the breadth of the issues engaged, the only aspect of the duty of care relied on was the exercise of the power to report to the police what were described as “notifications”. Following the complaints to the district officer, there was a factual assessment to be made (were the complaints reliable?) and a strategic assessment as to the appropriate course to be taken. It is clear that the factual assessment was made by Ms Quinn and was favourable to the complainants: she accepted the allegations of child abuse, as did other officers who dealt with them. A strategic assessment, viewed in the abstract, would have included at least the following possibilities:

1. removing the girls from their home and placing them in institutions or foster care;

2. allowing the girls to remain in their home on condition that the stepfather moved out and had no contact with them; or

3. physically preventing the stepfather from having contact with either of the girls.

54. None of these steps could have been taken by the district officer. With respect to (a) and (b), she could have had the children brought before a Children’s Court and sought appropriate orders, as was done. There is no suggestion that she failed in her duty of care in taking those steps. If the court had made an order removing the children from the family home, physically removing the stepfather from their presence would, at least in the first instance, have been unnecessary. (Again, that was what in fact initially happened.) However, to remove the stepfather physically required a police arrest and the institution of criminal proceedings.

55. It may be accepted that the duty of care which arose in the circumstances revealed in April 1983 included a duty to consider the various courses of conduct available to the officers in YACS under the Child Welfare Act. That, however, would fall short of the scope of the duty relied on by the claimants, to which it will be necessary to return shortly.

(b)   reliance on inter-departmental guidelines

56. The claimants, both at trial and in this Court, sought to obtain assistance in formulating the duty of care by reliance on a document entitled “Guidelines for Officers of the Department of Youth and Community Services, the Police Department and the Health Commission in respect of matters relating to child abuse”. The trial judge inferred that the Guidelines had been adopted no later than 26 February 1982. [33] The judge considered the Guidelines in the course of determining whether the abuse was in fact reported to police. The Guidelines, quite properly, played no part in his consideration of whether there was a duty of care which extended to an obligation to report the sexual abuse to the police. [34] However, because the appellants in this Court placed some reliance on the Guidelines as forming the basis for submissions as to the scope of the duty of care, it is necessary to indicate why they provide no support for that conclusion.

    33. Judgment at [47].

    34.    Judgment at [14]-[32].

57. Emphasis was placed upon the first paragraph in Part 1 of the Guidelines, dealing with “receipt of notifications of suspected child abuse”, which read as follows:

“All notifications of suspected child abuse are to be reported to any District Office or Child Protection Unit of the Department of Youth and Community Services. The Officer-in-Charge of such office is to ensure that Montrose Child Protection and Family Crisis Service is immediately notified of details of the reported case.”

58. The Montrose Service was part of YACS. It maintained a register of child abuse complaints, until the children concerned came of age. Part 3 of the Guidelines was headed “Discretion”. It contained two parts, the first dealing with YACS and the second with the Police Department. With respect to YACS, the Guidelines addressed four activities of identified officers in YACS, including (1) the issue of medical examination orders under s 148C of the Child Welfare Act, (2) a decision to lay a complaint under the Child Welfare Act, (3) a decision to involve police in child abuse cases and (4) a decision to “file down” registered child abuse cases.

59. The trial judge concluded, having regard to the elements identified in (3), that the cases of the complainants fell within the category of cases which would be “appropriate” for involvement of the police. However, importantly for present purposes, that section of the Guidelines contained the following statement:

“Police involvement is not synonymous with court action which should be the result of a joint decision making process between responsible officers of [YACS], police personnel and health personnel if involved.”

60. Consistently with that statement, par 3.2.2, headed “Decision to lay charges under the Crimes Act and/or complaint under the Child Welfare Act”, included the following:

“Officers of the Police Child Mistreatment Unit may make decisions to lay charges under the Crimes Act and/or complaints under the Child Welfare Act when consensus has been reached after consultation with the SEO (Montrose) or a Senior District Officer or a Resident District Officer of [YACS]. Decisions to take such action should be made in similar circumstances to those listed 3.1.3 above. Where consensus is not reached the matter shall be referred to the Assistant Commissioner (Crime) and to the appropriate Regional Director of [YACS].”

61. This last paragraph patently recognised that there may be conflicting views as to the appropriateness of court action, involving criminal proceedings against the perpetrator of abuse. The potential for conflict in such cases was inconsistent with the proposition that a child welfare authority should be placed under a common law duty which included reporting cases to the police for the purpose of prosecution. This was not an abstract issue: there was unequivocal evidence that this problem affected the thinking of Ms Quinn, considered below.

(c)   general principles

62. In assessing whether the common law would impose a duty in these circumstances, it is necessary to have regard to two basic principles. First, absent a special relationship involving a duty to control the actions of another, the common law does not generally impose a duty of care on one person to prevent a second person causing harm to a third person. [35] Secondly, the common law will not impose a duty which is “inconsistent with, or have a tendency to discourage, the due performance by the [relevant authority] of its statutory duties”. [36] Nor will it require that a discretionary power conferred by statute be exercised in a particular way. In the case of a statutory power the duty will usually be to consider its exercise, if the preconditions are satisfied.

    35. Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 at [21] (Gleeson CJ), [43] (Gaudron J), [117] (Hayne J), [147] (Callinan J).

    36. X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 739 (Lord Browne-Wilkinson), quoted in Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at [30] and [59].

63. The first principle was addressed in a case involving the management of licensed premises, namely Adeels Palace Pty Ltd v Moubarak. [37] The question was whether the proprietor of licensed premises owed a customer a duty to take reasonable care to prevent injury resulting from the violent conduct of others on the premises. In rejecting a submission that Modbury Triangle precluded such a duty of care, the High Court noted that “the particular duty said to have rested on the occupier of the premises (who was the operator of the business that was conducted on the premises) is a duty to take reasonable care to prevent or hinder the occurrence of events which, under the Liquor Act, the licensee was bound to prevent occurring – violent, quarrelsome or disorderly conduct.”[38] The existence of such a duty, in relation to event which occurred on New Year’s Eve, was expressed in the following terms:[39]

“In the circumstances reasonably to be contemplated before the restaurant opened for business on 31 December 2002 as likely to prevail on that night, Adeels Palace owed each plaintiff a duty to take reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other persons. The duty is consistent with the duty imposed by statute upon the licensee and which was a duty enforceable by criminal processes. No question arises of translating a statutory power given to a statutory body into the common law ‘ought’[40] . The duty is not absolute; it is a duty to take reasonable care. It is not a duty incapable of performance. It is a duty the performance of which is supported by the provision of statutory power to prevent entry to premises and to remove persons from the premises, if needs be by using reasonable force.”

37. (2009) 239 CLR 420; [2009] HCA 48.

38. Adeels Palace at [25].

39. Adeels Palace at [26].

40. cf Pyrenees Shire Council v Day (1998) 192 CLR 330; [1988] HCA 3 at [122] .

64. The point as to consistency with the statutory power referred to the second principle noted above. In Pyrenees Shire Council v Day, Gummow J said:[41]

“Much of the argument in this Court was directed to the particular position of the Shire of Ripon as a public body with statutory powers. Those parties which asserted liability of the Shire to them in tort sought to translate the public law ‘may’ into the common law ‘ought’.”

41. Pyrenees Shire Council at [122]. See also Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54 at [78]-[80] (McHugh J).

65. The State’s submissions directly raised the question of potentially conflicting obligations, as a basis for not imposing a duty in the terms proposed. A similar issue arose in Stuart v Kirkland-Veenstra,[42] in which the wife of a man who had committed suicide sued police officers and the State of Victoria for damages for breach of duty in failing to exercise powers available under the Mental Health Act 1986 (Vic) to apprehend a person who appeared to be mentally ill, where the officer had reasonable grounds for believing that the person was likely to attempt suicide. The High Court held that the claim failed because the power was not engaged, it not having been established that the police officers had formed the relevant belief. [43]

    42. (2009) 237 CLR 215; [2009] HCA 15.

    43.    Stuart at [5] (French CJ), [149]-[150] (Crennan and Kiefel JJ).

66. Unlike the present case, the basis of the claim in Stuart was that the police ought, in the exercise of their duty of care both to the deceased and his wife, to have taken into custody the deceased, to prevent him committing suicide. That concept differed from that engaged in the present case which involved an assailant and his victims. Nevertheless, the following observations of Gummow, Hayne and Heydon JJ are apposite:[44]

“First, the duty must be one that would require exercise of the powers given by equivalent provisions in other jurisdictions. Secondly, and more importantly, the duty of care alleged by the plaintiff could not be confined to a duty to take reasonable care to protect a person from self-harm by exercising statutory powers under applicable mental health legislation. The duty alleged could not be confined to cases of self-harm and could not be confined to cases in which powers under mental health legislation may be engaged. Rather, the duty alleged in this case would necessarily be a particular example of a more general duty of care owed by those who have statutory power to take action in exercise of that power, whenever two conditions are satisfied: it is reasonable to do so and acting will be likely to protect another from physical harm. And although the duty alleged in this case is said to have been owed to Mr Veenstra to take reasonable care to protect him from harm at his own hand, there is no basis upon which the relevant duty of care could be confined to cases of self-harm. If owed, the duty must extend to preventing harm to at least some others. For the reasons given earlier, no such general duty should be found to have been owed by the police officers.”

44. Stuart at [107].

67. The reasoning in Stuart for not imposing a common law duty of care placed weight upon the value of personal autonomy as a factor of predominate importance. [45] However, more broadly, the joint reasons affirmed the approach articulated in Graham Barclay Oysters Pty Ltd v Ryan:[46]

“[146]   The existence or otherwise of a common law duty of care allegedly owed by a statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime. The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence.

…

[149]   An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial. It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. In particular categories of cases, some features will be of increased significance. For example, in cases of negligent misstatement, such as Tepko Pty Ltd v Water Board, reasonable reliance by the plaintiff on the defendant authority ordinarily will be a significant factor in ascertaining any relevant duty of care."

45. Stuart at [114].

46. (2002) 211 CLR 540 per Gummow and Hayne JJ (citations omitted).

68. It is also convenient in this context to note the principles adopted by the High Court in Sullivan v Moody,[47] a case involving a claim for damages brought by a father who had been mistakenly accused of sexual abuse of his child, alleging that the medical practitioner and social worker, who had formed the opinions that the child had been abused, acted negligently. That case involved the exercise of a power of notification (indeed an obligation to notify) pursuant to the Community Welfare Act 1972 (SA), being a provision analogous to s 148B of the Child Welfare Act. The facts, in one sense, were the reverse of the present case. That was significant because the Court, in rejecting the existence of a duty of care, relied upon the fact that a duty of care owed to an alleged abuser “would give rise to inconsistent obligations”, namely obligations inconsistent with the duty of the professional to the child in whose interest the professional is supposed to act. [48] The Court further noted that “the interests of the children, and those suspected of causing their harm, are diverse, and irreconcilable.”[49]

    47. (2001) 207 CLR 562; [2001] HCA 59.

    48. Sullivan at [60].

    49. Sullivan at [62].

69. Nevertheless, in the course of the reasons, the Court referred, with apparent approval, to two passages from the opinion of Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council. [50] The relevant passages had been relied upon by Matheson J in the South Australian Supreme Court. [51] The first has been set out above at [62]. A further passage was in the following terms:[52]

“... the task of the local authority and its servants in dealing with children at risk is extraordinarily delicate. Legislation requires the local authority to have regard not only to the physical wellbeing of the child but also to the advantages of not disrupting the child's family environment.... [I]f a liability in damages were to be imposed, it might well be that local authorities would adopt a more cautious and defensive approach to their duties. ... If the authority is to be made liable in damages for a negligent decision ... there would be a substantial temptation to postpone making such a decision until further inquiries have been made in the hope of getting more concrete facts. Not only would the child in fact being abused be prejudiced by such delay: the increased workload inherent in making such investigations would reduce the time available to deal with other cases and other children.”

50. [1995] 2 AC 633.

51. Sullivan at [30].

52. X (Minors) at 750; Sullivan at [30].

70. There have been a number of recent cases in the UK Supreme Court dealing with similar issues. Michael v The Chief Constable of South Wales Police [53] involved a claim by the parents and young children of a woman who was murdered by her former partner. The claim against police asserted that they had failed to respond to an emergency call until more than an hour after the call was made, whereas, it was submitted, a prompt response would have prevented the killing. The reasoning is relevant because, as in the present case, the claim was based, not on negligent action, but on a failure to act.

    53. [2015] UKSC 2.

71. After a comprehensive review of cases not only from the UK but from other countries, including Australia, Lord Toulson, with whom Lords Neuberger, Mance, Reed and Hodge agreed, rejected the proposition that the police owed a duty of care to the victim, on receiving her emergency call. The principles were stated in the following terms:

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

[98]   The rule is not absolute. Apart from statutory exceptions, there are two well recognised types of situation in which the common law may impose liability for a careless omission.

[99]   The first is where D was in a position of control over T and should have foreseen the likelihood of T causing damage to somebody in close proximity if D failed to take reasonable care in the exercise of that control. Dorset Yacht is the classic example, and in that case Lord Diplock set close limits to the scope of the liability. As Tipping J explained in Couch v Attorney-General, [54] this type of case requires careful analysis of two special relationships, the relationship between D and T and the relationship between D and C. I would not wish to comment on Tipping J’s formulation of the criteria for establishing the necessary special relationship between D and C without further argument. It is unnecessary to do so in this case, since Ms Michael’s murderer was not under the control of the police, and therefore there is no question of liability under this exception.

[100]   The second general exception applies where D assumes a positive responsibility to safeguard C under the Hedley Byrne principle, as explained by Lord Goff in Spring v Guardian Assurance Plc. [55] It is not a new principle. It embraces the relationships in which a duty to take positive action typically arises: contract, fiduciary relationships, employer and employee, school and pupil, health professional and patient. The list is not exhaustive. … There has sometimes been a tendency for courts to use the expression ‘assumption of responsibility’ when in truth the responsibility has been imposed by the court rather than assumed by D. It should not be expanded artificially.”

54. [2008] 3 NZLR 725.

55. [1995] 2 AC 296.

72. Lord Toulson also considered the areas where a duty of care has been imposed.

“[112]   In some areas, such as health care and education, public authorities provide services which involve relationships with individual members of the public giving rise to a recognised duty of care no different from that which would be owed by any other entity providing the same service. A hospital and its medical staff owe the same duty to a patient whether they are operating within the national health service or the private sector (Roe v Minister of Health [1954] 2 QB 66). A school and its teaching staff owe the same duty to a pupil whether it is a state maintained school or a private school (Woodland v Swimming Teachers Association [2013] UKSC 66; [2014] AC 537). Educational psychology is a professional service linked to education. An organisation which provides an educational psychology service, and its educational staff, owe the same duty to a pupil whether they are operating in the public or the private sector (X (Minors) v Bedfordshire County Council [1995] AC 633).

[113]   Besides the provision of such services, which are not peculiarly governmental in their nature, it is a feature of our system of government that many areas of life are subject to forms of state controlled licensing, regulation, inspection, intervention and assistance aimed at protecting the general public from physical or economic harm caused by the activities of other members of society (or sometimes from natural disasters). Licensing of firearms, regulation of financial services, inspections of restaurants, factories and children’s nurseries, and enforcement of building regulations are random examples. To compile a comprehensive list would be virtually impossible, because the systems designed to protect the public from harm of one kind or another are so extensive.

[114]   It does not follow from the setting up of a protective system from public resources that if it fails to achieve its purpose, through organisational defects or fault on the part of an individual, the public at large should bear the additional burden of compensating a victim for harm caused by the actions of a third party for whose behaviour the state is not responsible. To impose such a burden would be contrary to the ordinary principles of the common law.”

73. Although he did not deal expressly with child welfare cases, Lord Toulson did note that “[c]laims against other emergency services have been treated in a similar way to claims against the police (except in the case of the ambulance service, to which I refer below).”[56] The primary examples given involved calls to the fire brigade and a case involving the Coastguard.

    56. Michael at [71].

74. The countervailing position (adopted in Michael by Lord Kerr and Lady Hale) involved a variation on the principle expressed by Lord Bingham in dissent in Van Colle v Chief Constable of the Hertfordshire Police; Smith v Chief Constable of Sussex Police. [57] Van Colle involved a claim under the Human Rights Act 1998 (UK) and was not of direct relevance to a common law claim. Smith involved the strike out of a common law claim. The claimant was the victim of a violent attack by a former (male) partner. He had received, and reported to police, “a stream of violent, abusive and threatening messages, including death threats.”[58] A week later he was savagely attacked, the police having taken no steps in the meantime to address the reported threats which left the victim believing that he was in danger of his life. Lord Bingham expressed what he described as “the liability principle” in the following terms:[59] “If a member of the public (A) furnishes a police officer (B) with apparently credible evidence that a third party whose identity and whereabouts are known presents a specific and imminent threat to his life or physical safety, B owes A a duty to take reasonable steps to assess such threat and, if appropriate, take reasonable steps to prevent it being executed.”

    57. [2009] 1 AC 225.

    58. See Michael at [56].

    59. Smith at [44].

75. In Michael, Lord Kerr added an extra ingredient which he described as “proximity of relationship” and which was identified as “a closeness of association between the claimant [that is the person in fear] and the defendant [the police officer], which can be created by information communicated to the defendant but need not necessarily come into existence in that way”. [60] At least in circumstances where there has been a report of a threat, it is not clear that the additional criterion adds much to the succinct statement of principle by Lord Bingham. Although the majority decision in Michael thought that this formulation produced anomalous results, they also supported the view (conformably with the Australian approach) that the common law should develop incrementally and not in giant steps. [61]

    60. Michael at [144].

    61. Michael at [102].

76. Whether the approach favoured by Lord Bingham and the minority in Michael would be adopted in Australia, having regard to particular statutory schemes, is an open question: it has not yet been adopted.

(d) operation of the Civil Liability Act

77. On the basis that the claimants were relying upon a statutory power arising under the Child Welfare Act, the State pleaded that it was a “special statutory power” within the meaning of s 43A of the Civil Liability Act 2002 (NSW) and that it was therefore necessary for them to establish that the act or omission relied upon was “in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.”[62]

    62. Civil Liability Act, s 43A(3).

78. The failure or omission relied upon as a breach of duty was the failure to report the conduct of LX to the police. Accepting that the statutory power in s 148B(5) had been available, the trial judge held that it was a “special statutory power” and that the claims were to be addressed by reference to the high standard imposed by s 43A. Neither party suggested that that approach was erroneous. However, the section did not preclude the existence of a duty, nor affect its scope, but should be understood as identifying the standard of care. It will therefore operate in considering whether, assuming that a relevant obligation is established, the conduct of the officers of the State failed to reach the requisite standard of care, thereby breaching the duty.

(5)   Scope of duty - application of principles

(a)   Did the duty encompass an obligation to report to police?

79. In considering the formulation of a common law duty, it is necessary to go beyond the proposition that demands for justice strongly favoured the prosecution of LX. No doubt a system for notification of cases of child abuse could increase the likelihood of such prosecutions. However, it is clear that that was not the primary function of s 148B; its purpose was child protection. That follows from its location in the Child Welfare Act, and the identification of the Director of YACS as the recipient of notifications. Even if it be assumed that the powers were also conferred on other officers in YACS, the primary statutory purpose remained.

80. As senior counsel for the State explained in the course of her submissions on the appeal: [63]

“It becomes the question then… let's assume for the purpose of the argument that the decision maker is obliged to at least consider, whether [he] or she will involve the police. At the time, in this case, one has two vulnerable complainants, an utterly unsupportive family environment, at least one of the complainants is extremely psychologically precarious, wrist slashing and the like. The question becomes then, if it is assumed that the police, upon notification would then automatically step in and charge and require witness statements and require those complainants to go into a criminal procedure.

If the decision maker said, well I'm not going to do that, because I'm exposing those plaintiffs at this time to that procedure and we are already in the Cobham Children's Court and have got orders in place that the Court believes [will] protect them at the time that we're talking about. His Honour's finding, of course, is that that decision to engage the police had to be taken by 28 April very early in the scheme of things.

… It may well be to look from the other side of things, that the very last thing in the world one would do in protecting these two complainants would be to notify the police at the time, as at 28 April.”

63.    Tcpt, 4 March 2016, p 86-87.

81. The scope of any duty of care, viewed in the statutory context, was to take reasonable steps in exercising statutory powers to protect victims of child abuse. Abuse may come in many different forms. In the present case, it is proper to identify the scope of the duty by reference to the risk of continued sexual abuse (and occasional physical violence) from the stepfather, directed at the claimants.

378. Dr Diamond’s view was different. He considered that the relationship between the appellants and the stepfather and the State during the period from 20 April 1983 to about 1985 had been “of significant relevance to the evolution and worsening of the chronic [PTSD]”. [124] He explained that the experience of both appellants between April 1983 and 1985:

“was that they could not be protected and they had to endure further abuse at the hands of the perpetrator. For vulnerable children who were helpless and defenceless in those circumstances, the experience … was that their lives deteriorated further and they became involved in delinquent behaviour, substance abuse, avoidant behaviours, emotional numbing, disordered conduct, disruptive schooling and displacement from a home environment.” [Emphasis added.]

124. Emphasis added.

384. Dr Diamond also expressed the view that both appellants suffered from chronic PTSD and that their psychiatric condition had been significantly affected by the fact that there had been neither notification to police nor prosecution of the perpetrator of the sexual abuse. In his view, reaction to trauma is “[i]ntrinsic to the development of chronic [PTSD]”. In this case, the trauma for the appellants was repetitive and cumulative and included feelings of vulnerability and profound helplessness. During the period from April 1983 to 1985, not only did their mother prove to be incapable and unwilling to protect them from the perpetrator, but the experience of abuse was re-enacted when the authorities also failed to protect them.

385. The primary Judge referred at length to the reports of the two psychiatrists and expressed his preference for the views of Dr Diamond. [125] His Honour considered that it made more sense that the abuse suffered by the appellants over a long period accounted for their severe psychiatric disabilities. [126] He accepted Dr Diamond’s opinion that the confrontation between the appellants and the stepfather at the criminal trial in 2005 made manifest their underlying conditions, which had long predated the 2005 trial.

     125. Primary Judgment at [190], [195].

     126. Primary Judgment at [190].

386. Ms Wass invited this Court in effect to adopt Dr Champion’s opinion that the appellants’ PTSD was attributable to the trauma of the criminal trial rather than to any post-April 1983 sexual abuse. However, in my opinion, no cogent reason was advanced to justify overturning the primary Judge’s finding.

387. It is true that Dr Diamond’s initial report was prepared on the erroneous assumption that the sexual abuse of the appellants had ceased by April 1983. But when Dr Diamond became aware that the abuse had continued beyond that date, he expressed the clear opinion that the post-1983 sexual abuse and the failure of the authorities to protect the appellants from the continuing abuse during that period of abuse exacerbated the appellants’ respective psychiatric disorders. Dr Diamond’s opinion was based on a careful analysis of the behavioural and psychiatric history of each of the appellants. Moreover, the primary Judge was entitled to take into account that Dr Champion, unlike Dr Diamond, had never seen either of the appellants. Accordingly, in my view, no error has been shown in the primary Judge’s acceptance of Dr Diamond’s opinion. His Honour was justified in finding, on the balance of probabilities, that the State’s negligence materially contributed to each appellant’s psychiatric condition.

The State’s Liability for Damages

388. Having accepted that the post-April 1983 abuse (and the failure of the authorities to prevent that abuse) materially contributed to each appellant’s psychiatric condition, the primary Judge pointed out (at [182]) that this did not mean that the appellants were entitled to be compensated for the entirety of their psychiatric disabilities. His Honour said that it was necessary to acknowledge that their injuries also resulted from the pre-April 1983 abuse, for which the Department (and the State) had no legal responsibility.

389. The primary Judge accepted that the State bore the burden of adducing evidence showing that the appellants suffered from a pre-existing condition at the time the breach of duty occurred. [127] Although his Honour did not explain in detail why he considered that the State had discharged that burden, it is evident that he found that the State had done so. He observed that this was not a case where the appellants were “merely subject to some susceptibility of injury but for the [State’s] negligence”. In his view, it could not seriously be argued that no injury at all would have occurred had the State not breached its duty of care to the appellants. [128] His Honour concluded that overcompensation could be avoided by applying a discount of 70 per cent on the damages that would have been awarded if the State’s negligence had been the sole cause of the appellants’ harm.

     127. This is evident from the reference in the Primary Judgment at [183] to Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1 at [105]-[106] where Ipp JA cited Watts v Rake [1960] HCA 58; 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; 114 CLR 164.

     128. Primary Judgment at [184].

390. I did not understand the appellants to contend that the State had failed to adduce evidence capable of establishing that the pre-April 1983 abuse suffered by the appellants had contributed to their respective psychiatric conditions. In any event, the evidence of Dr Diamond, to which I have referred and which the primary Judge accepted, was capable of establishing that the pre-April 1983 sexual abuse materially contributed to the underlying psychiatric conditions suffered by the appellants.

391. The submission advanced by Mr Morrison SC, who appeared with Mr Pryde and Mr Morrissey for the appellants, was that the evidence did not justify the primary Judge distinguishing between the consequences of the pre-April 1983 and post-April 1983 abuse. Mr Morrison contended that neither Dr Diamond nor Dr Champion had attempted to identify the extent to which the pre-1983 abuse (for which the State was not responsible) caused the harm suffered by the appellants. He attached particular weight to the observation made in the joint judgment of the High Court in Purkess v Crittenden stating that a defendant, in a case such as the present, must adduce evidence which, if accepted, would “establish with some reasonable measure of precision” what the pre-existing condition was and what its future effects are likely to be. [129]

     129. See [4] above.

392. Mr Morrison submitted that the primary Judge failed to address whether the evidence was sufficient to enable him to determine with any precision the condition from which each appellant suffered by reason of the pre-April 1983 abuse and the likely consequences of that condition had the State not been negligent. Mr Morrison further submitted that neither Dr Diamond nor Dr Champion had considered these issues. Accordingly, the primary Judge had no basis for distinguishing between the consequences of the pre-April 1983 abuse and the later abuse. It followed, so Mr Morrison argued, that the State should be held liable for the whole of the damages assessed by the primary Judge and that the primary Judge erred in applying a “discount” of 70 per cent.

393. It is not always easy to apply the language used in Purkess v Crittenden, a case involving degenerative changes in the spine, to cases involving negligence resulting in psychiatric harm or the exacerbation of an antecedent psychiatric disability. As Basten JA observed in State of New South Wales v Burton, [130] precision in such cases, at least in relation to aetiology, “tends to be an aspiration rather than a reality”.

     130. [2006] NSWCA 12 at [76]. See also State of New South Wales v Burton [2008] NSWCA 319 at [34].

394. The starting point for determining the sufficiency of evidence adduced by a defendant in a case such as the present is the statement of principle by Hayne and Bell JJ in Tabet v Gett:[131]

“For the purposes of the law of negligence, ‘damage’ refers to some difference to the plaintiff. The difference must be detrimental. What must be demonstrated (in the sense that the tribunal of fact must be persuaded that it is more probable than not) is that the difference has been brought about and that the defendant’s negligence was a cause of that difference. The comparison invoked by reference to ‘difference’ is between the relevant state of affairs as they existed after the negligent act or omission, and the state of affairs that would have existed had the negligence act or omission not occurred.”

[Emphasis in original.]

131. [2010] HCA 12; 240 CLR 537 at [66].

395. It is also necessary to recognise that there is a distinction between the injury or damage which is the gist of the action in negligence (which the plaintiff must prove) and the proper measure of damages (in respect of which a defendant may bear the burden of adducing evidence but not the ultimate burden of persuading the court on the balance of probabilities). [132] The authorities accept that precision in the assessment of damages is invariably difficult to realise and that courts must do the best they can on the evidence before them. [133]

     132. Tabet v Gett at [23] (Gummow ACJ).

     133. See Tabet v Gett at [39] (Gummow ACJ).

396. As I have noted, at the time Dr Diamond prepared his initial report, he was not asked to assume that the abuse in each case continued after April 1983. Moreover, the main focus of his reports was to identify the time each appellant became aware that she was suffering from PTSD, this apparently being thought relevant to a possible limitations defence. While the circumstances of each appellant were different, Dr Diamond’s view was that each had suffered psychiatric injury at the time the stepfather abused her, but had not become aware of her underlying psychiatric condition until much later. Dr Diamond reiterated these views in subsequent reports.

397. In the joint experts’ report, prepared after Dr Diamond had been asked to assume that the abuse continued after April 1983, he specifically stated that the chronic PTSD arose in each case at the time of the abuse and had continued throughout the period of abuse and thereafter. Dr Diamond identified the manifestations of PTSD experienced by each appellant over a long period of time and said that each appellant suffered from PTSD during that period even though her condition remained undiagnosed.

398. Dr Diamond and Dr Champion were asked the following questions for the purposes of the joint report:

“3.   Does the plaintiff suffer, or has she at any time suffered, from a recognised psychiatric injury (in particular post traumatic stress disorder) related to any aspect of her relationship with the defendants or either of them during the period 20 April 1983 to about 1985.

…

4.   If the answer to Question 3 is “yes”.

4a)   What aspect of that relationship, if any, relates to that injury.” [134]

134. The reference to “the defendants” is to the State and Ms Quinn. As Ward JA has noted (at [173], Ms Quinn is not a party to the appeal.

399. Dr Diamond answered Question 3 by saying that the relationship of the appellants with the State during the period 20 April 1983 to about 1985 was of “significant relevance to the evolution and worsening of the chronic [PTSD]”. In answer to Question 4a), Dr Diamond reiterated that the appellants’ relationship with the State was “significant with regard to the evolution, maintenance and worsening of the chronic [PTSD]”.

400. Dr Diamond’s answer to Question 4a) is elaborated in the passage I have quoted earlier. [135] In that passage he explained the manner in which the abuse and neglect between April 1983 and 1985 affected the behaviour and emotional functioning of each appellant.

     135. See at [383] above.

401. In my view, the evidence adduced by the State was sufficient to enable the Court to determine, in accordance with the relevant principles, the extent to which the State’s negligence contributed to the psychiatric disabilities suffered by each appellant. No doubt more specific questions could have been asked of the psychiatrists and, if asked, might well have elicited from Dr Diamond a more precise analysis of the likely progression of each appellant’s PTSD had the State’s negligence not led to a continuation of the sexual abuse after April 1983. But given the nature of the Court’s task in assessing damages, I think that the evidence adduced was sufficient to enable the primary Judge to assess damages.

402. As Ward JA has explained, there is room for debate as to how damages should be assessed once it is established that a plaintiff suffered from a pre-existing psychiatric disability which was exacerbated or intensified by the defendants’ negligence. It is neither necessary nor desirable to address these issues in the present case. Ms Wass accepted that if this Court rejected the State’s argument that the post-April 1983 abuse did not contribute to the appellants’ psychiatric disabilities, the primary Judge’s contingent assessment of damages by reference to a discount of 30 per cent should not be disturbed. Mr Morrison also accepted that if the appellants were unsuccessful in their contention that there should be no discount, the 30 per cent figure should stand.

403. Subject to the questions of quantification to which Ward JA has referred, the primary Judge’s approach to the assessment of damages should not be disturbed.

Additional Observations

404. Since preparing the foregoing, I have had the opportunity to read Basten JA’s judgment. I make the following points, which accord with the views expressed by Ward JA.

405. I did not understand the State to challenge the proposition that the Director’s powers or duties under s 148B(5) of the Child Welfare Act 1939 (NSW) (CW Act) had been enlivened. The Notice of Contention does not seek to uphold the primary Judge’s decision on the ground that his Honour should have found s 148B(5) was not engaged.

406. In the primary Judge’s summary of his decision,[136] the first conclusion is stated as follows:

“The Department owed each of TB and DC a duty actionable under the law of negligence to use reasonable care in the exercise of its powers conferred by s 148B(5) CW Act.”

136. Primary Judgment at [7].

407. In argument before this Court, Ms Wass stated that this conclusion was “of course, uncontroversial”. [137] Ms Wass then contended that s 148B(5) did not assist the appellants because the Director had a discretion to report abuse to the police and the State’s duty to take reasonable care was not breached by the Director’s failure to exercise his discretionary power. Ms Wass did not argue that the Director did not have power to report the abuse to the police. Her position was consistent with the State’s Notice of Contention which is drafted on the assumption that the State had a legal duty to take reasonable care in the exercise of its powers under s 148B(5) of the CW Act.

     137. Transcript of Proceedings, DC v State of New South Wales (Court of Appeal of New South Wales, Basten, Ward JJA and Sackville AJA, 3-4 March 2016) at 82.

408. In any event, the State did not dispute that it owed a duty of care to the appellants that required it to exercise reasonable care in the exercise of its statutory powers, including those conferred by s 148B(5) of the CW Act. While the Notice of Contention did challenge the finding that the State breached its duty of care by omitting to notify the police of the abuse suffered by the appellants, the existence of a duty of care was not in dispute.

409. The State’s challenge to the finding of breach of duty did not raise questions of principle, but was fact specific. The principal contention advanced by the State was that the evidence did not justify the primary Judge’s finding that the Department had failed to report the abuse to the police. Ward JA has addressed that argument in detail.

410. The State did not contend that the finding that Ms Quinn had not breached the duty of care she owed to the appellants meant that the Department could not be found to have breached its duty of care to the appellants. The primary Judge distinguished Ms Quinn’s position from that of the Department in a passage which was not challenged on appeal:[138]

“I am not of the view that the District Officer owes any corresponding or concurrent duty. I accept that as a social worker the District Officer, like other professionals, may owe a duty of care to persons to whom she provides professional services … But this is not the current field of discourse. The case pleaded and argued against the District Officer is that she owed the [appellants] duties having the same content as the duty asserted to be owed by the Department. In my judgment, this is misconceived. The specific statutory powers, the existence and engagement of which are essential, but insufficient, conditions of the imputation of the duty, are conferred upon the Director of the Department and not upon its individual and subordinate officers, even if in other areas (for example s 76 CW Act), authorised officers may have independent functions or powers.”

138. Primary Judgment at [31].

411. The State’s submissions accepted the primary Judge’s finding that Ms Quinn was not responsible for the exercise of the statutory powers or discretion under s 148B(5)(b) of the CW Act. [139] The State relied on Ms Quinn’s evidence that she would have recommended to Mr Frost that the matters be referred to the police in support of its contention that the Department probably reported the abuse to the police. In taking this course, the State’s submissions distinguished between the scope of Ms Quinn’s duty to take reasonable care to protect the appellants and the Department’s duty to take reasonable care.

     139. Respondent’s Amended Submissions at [40]-[41].

412. The appellants’ case against the State did not rest on establishing that Ms Quinn breached the duty of care owed to the appellants by failing personally to report the abuse to police. The appellants’ claim was that the Department breached its independent duty of care by failing to report the abuse. The State’s submissions accepted, at least implicitly, that there might be circumstances in which a failure to report abuse to police would constitute a breach of the Department’s duty of care owed to children for whom it had responsibility. The debate at the trial essentially turned on whether, in the particular circumstances of the case, the Department had done enough to discharge its duty of care without reporting the stepfather’s abuse to police.

413. I should add that although the State raised the issue of causation in relation to the damages claimed by the appellants, it did not raise other issues of causation. The Notice of Contention did not include a ground that had the Department reported the abuse to the police, charges would not have been laid or, if laid, would not have prevented the stepfather continuing to abuse the appellants. The State’s written submissions referred to what was said to be an absence of evidence as to what the Child Mistreatment Unit of the New South Wales Police would have done had a report of abuse been made. But I understand that reference to be intended to support the State’s contention that a report was probably made even if there was no evidence that the police took any action in relation to the stepfather.

**********

Endnotes

Amendments

10 August 2016 - Typographical error to Headnote

Decision last updated: 15 August 2016