Richard Ian Hillman v Tania Leonie Black and Ors No. SCGRG 90/1492 Judgment No. 5941 Number of Pages 36 Negligence (1996) 67 Sasr 490
[1996] SASC 5941
•17 December 1996
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA MATHESON, PRIOR and PERRY JJ
CWDS
Negligence - action brought by father of three year old child accused of sexually abusing her - child examined at request of Department of Community Welfare by a medical practitioner at Sexual Assault Referral Centre and later interviewed by a child psychiatrist - allegation that the medical practitioners were in breach of a duty of care owed to the plaintiff - claim that the Department of Community Welfare also acted in breach of duty of care to the plaintiff in failing to ensure that proper assessments of the child were carried out - allegation that the plaintiff suffered a psychiatric illness resulting in part from his separation from his wife and children and that the separation was causally related to the assessments made by the medical practitioners - consideration of Community Welfare Act - failure of the plaintiff to establish that any of the defendants owed him a duty of care - necessary relationship of proximity not proved - witness immunity - appeal dismissed. Community Welfare Act 1972 , referred to. X (Minors) v Bedfordshire CC and Others (1995) 2 AC 633; Stovin v Wise, (Norfolk County Council Third Party) (1996) 3 WLR 388; Jaensch v Coffey (1984) 155 CLR 549; Bryan v Maloney (1995) 182 CLR 609; (1989) 12 Adelaide Law Review 93 ; Cabassi v Vila (1940) 64 CLR 130, applied.
International law - relevance of treaties adopted by Australia - observations as to the relevance of international instruments entered into by Australia which emphasise the recognition of the family as the natural and fundamental group unit of society and the need to preserve the rights of children. Human Rights and Equal Opportunity CommissionAct 1986 Cwth) , referred to. Walsh and Anor v Department of Social Security Perry J, 5 September 1996, judgment No 5795 (1996) 67 SASR 143; International Convention on Civil and Political Rights Article 23; The Convention on the Rights of the Child Article 3(2); Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353; Jumbinna Coal Mine NL v Victoria Coal Miners Association (1908) 6 CLR 309; Polites v The Commonwealth and Anor (1945) 70 CLR 60; Ahmad v Inner London Education Authority [1978] 1 QB 36, considered.
HRNG ADELAIDE, 2-3 September 1996 #DATE 17:12:1996 #ADD 3:3:1997
Counsel for appellant: Mr C J Kourakis with him Mr M S Blumberg
Solicitors for appellant: Hamilton Lindsay &; Hemsley
Counsel for respondents: Mr M L Abbott Qc with him Ms A Simpson
Solicitors for respondents: Fisher Jeffries
Counsel for respondent State of SA: Mr Mr A P Moss
Solicitors for respondent State of SA: Crown Solicitor
ORDER
Appeal dismissed.
JUDGE1 MATHESON J
1. The appellant is the father of a child called Rebecca who was born on 29 May 1984. Allegations were made that he had sexually abused her. He claimed damages from the respondents for the psychiatric illnesses he alleged he suffered as a result of the allegations, and as a result of his subsequent separation from his family. His claims were dismissed. He now appeals from the dismissal. The first respondent is Dr Tania Black, a medical practitioner employed by The Queen Elizabeth Hospital, the third respondent, who examined the child at the Sexual Assault Referral Centre ("SARC") of that hospital at the request of the Department of Community Welfare ("the Department"). The second respondent is Dr John Govan, a psychiatrist employed by the Adelaide ChildrenÕs Hospital, the fourth respondent, who assessed the child for the purposes of custody and access claims in the Family Court of Australia. The appellant claims that the first two respondents and the Department owed a duty of care to him, and that the duty was breached when the first two respondents failed to investigate the allegations properly. The appellant claims that the third respondent is vicariously liable for the breach of duty of Dr Black, and that the fourth respondent is vicariously liable for the breach of duty of Dr Govan. He claims that the Department was in breach in not itself realising the deficiencies in the investigations and in not remedying them. The fifth respondent is the State of South Australia, and is sued as the employer of the officers of the Department who were involved in investigating the allegations.
2. I have reached the clear view that the appellant did not establish that any of the respondents owed him a duty of care, and in the circumstances I propose only to summarise the background facts.
3. The appellant was married on 26 February 1982. His wife did not give evidence in these proceedings. A second child called Darren was born on 24 January 1987. Mrs Hillman became depressed after his birth, and the appellant was actively involved in the day to day care of both children, including feeding, bathing and changing nappies. He had taken Rebecca to a doctor on several occasions when she had been examined for an ear infection, tonsillitis and severe stomach pains. She became unsettled after her brotherÕs birth. There was nocturnal bed-wetting, and she climbed into her parentsÕ bed more often than before her brotherÕs birth. On one occasion she had woken up in the night with wet pants, and the appellant told her to get into bed with him and his wife. He did not put any pants on her because he said he could not find any. The next morning his wife asked him whether he had been fiddling with Rebecca which he denied.
4. Mrs HillmanÕs depression got worse, and she was admitted to Glenside Hospital as an in-patient from 18 April to 29 April 1987. On her admission she told a doctor that she had thoughts of knifing her daughter and of cutting her own wrists. She gave a history that for eight years she had had a delusion of having throat cancer and thought she was dying. The appellant told a Glenside Hospital doctor that his wife had accused him of abusing Rebecca, but Mrs Hillman described him as being good with the children. Mrs Hillman said that she had also been upset about the murder/suicide of close friends. During her hospitalisation, the appellant had the care of both children.
5. Mrs Hillman remained depressed when she returned home, and the appellant continued to do much of the household work and child caring. Mrs Hillman continued to see a health worker at Glenside Outreach for her depression. She developed a concern about her heart. The appellant said that his wife used a stethoscope at home to check her heart. On 21 June 1987 she told the health worker at Glenside Hospital - Community Outreach that she suspected the appellant had sexually abused Rebecca. She was given the phone number of the Department of Community Welfare and told to contact the SARC. On 22 June 1987 she was interviewed by Bernadette Dawes who was then employed as a social worker with the Department at Noarlunga. Ms Dawes also interviewed Rebecca on her own. It was what she described as "really just a chatty discussion type interview". She allocated the matter to Mrs Margaret Neumann, a community welfare officer.
6. On 26 June, Mrs Hillman accused the appellant of playing "patient/doctors" games with Rebecca, using a stethoscope and a wooden spoon, and of sexual abuse to her. The appellant denied any abuse. That night Mrs Hillman phoned Crisis Care and spoke to Lucia Snarskis (now Valciukis) who was on duty. Crisis Care is an after hours service of the Department. It was basically a crisis counselling service by telephone. Mrs Hillman was again referred to the SARC, and this time an appointment was made for the following morning, which was a Saturday. Another Crisis Care worker, Dianna Dibden, drove Mrs Hillman and Rebecca to the SARC at the Queen Elizabeth Hospital. Before the medical examination by Dr Black, Rebecca told Ms Dibden that her father had put a wooden spoon in her bottom, and when asked if it hurt she said that it did sometimes. After the examination, Dr Black and Ms Dibden spoke to Mrs Hillman in the absence of Rebecca. Dr Black said there was no clinical evidence of abuse, but based on what the child had told her and whatever other investigative tool she had, she thought it was more likely than not that there had been some form of molestation. Subsequently, Ms Dibden spoke on the telephone to Detective Mead at the Darlington Police Station and advised him what had occurred. Dr Black also spoke to Detective Mead. The examination by Dr Black at the SARC took almost three hours. Eventually Dr Black prepared a report which was dated 31 July 1987. It contained the following summary:
"In summary Rebecca has given an explicit account of her father's
behaviour, which appear to be inappropriate namely, herself -
rubbing cream on his penis - and him putting a 'stick' into her
genital and anal region.
Rebecca was observed to have unusual knowledge and preoccupation
about sexual parts, in particular her vaginal entrance 'hole'. She
was reluctant to discuss the 'special games' and initially showed
extraordinary fear of being physically examined. She did not speak
during the interview in a way to suggest she had been coached into
making allegations.
A localized area of superficial abrasion and redness was observed
inside the labia, one of the areas where the child indicated she
had been penetrated by the 'stick' ...
It was felt that the child's behaviour, allegations and findings
were consistent with her having experienced some sexual
interference in the pretext of a game, and some influence to not
talk about it. More information needs to be obtained and in view of
the history of nightmares and the demonstration of inordinant fears
and anger, it was felt that play therapy would be appropriate for
this child. It is my experience that during such therapy other
details of abuse are often expressed ..."
7. Dr Black forwarded the report to Ms Neumann on 10 August. The accompanying letter included the following:
"These details are provided in good faith in accordance with the
statutory obligations set out in s91 of the Community Welfare Act
and the report is provided solely for the use of those members of
the Department of Community Welfare and Child Protection Panel
involved in the welfare of the child."
8. After Dr BlackÕs examination, Mrs Hillman took Rebecca to her sisterÕs house and remained there until she moved to her motherÕs house. At no stage did she resume cohabitation with the appellant. On the same day, the appellant was interviewed by Detective Mead. He denied the allegations. No charges have ever been laid in respect of them.
9. On 10 July, Mrs Hillman made an application for sole custody of the two children in the Family Court of Australia. The appellant filed a cross application on 15 July. A Judge of the Court invited the Department to intervene in the proceedings. After being advised by the Crown Solicitor that there was no need to intervene, the Department decided not to play an active role in the proceedings. A separate legal representative to act in the interests of the children was appointed on 13 August 1987. However, the Department decided to arrange for Rebecca to be seen by a child psychiatrist, Dr John Govan, the second respondent, for the purpose of advising on supervised access. His name had been suggested by Dr Black. He first saw Rebecca on 1 September 1987 and in a report provided to Mrs HillmanÕs solicitors on 14 January 1988, he stated inter alia "it is probable that some kind of sexual impropriety took place". He apparently told Ms Neumann on 3 September 1987 that he considered it an open and shut case that abuse had occurred. The appellant declined to be interviewed by Dr Govan.
10. Having regard to the view I have formed about this appeal, I only propose to refer briefly to some of the criticisms that the appellantÕs counsel has made of the investigations of sexual abuse. They included the lack of any investigation of any alternative, innocent explanation, of the extent to which Mrs Hillman had spoken to the child and what she had said, of the extent to which the child was able to provide any peripheral detail, of the role of Mrs HillmanÕs psychiatric illness, and of course counsel stressed that a child of three must always be suspect as an historian. Most of those criticisms related to Dr BlackÕs involvement in particular, but Dr Govan was criticised, inter alia, for relying too much on Dr Black and on Mrs Hillman, and for obtaining no information initially from Rebecca himself.
11. The respondents derive a great deal of support from a decision of the House of Lords entitled X (Minors) v Bedfordshire CC and Others
(1995) 2 AC 633. It actually involved a number of appeals in child abuse cases, but included one which was referred to as "the Newham case", the facts in which bore a striking similarity to the case at bar. The decision of the House of Lords was reported after the decision under appeal in this case. The facts were that a girl born in 1983 and her mother claimed damages against three defendants, the local authority with responsibility for child care services in the area, the local health authority and a consultant child psychiatrist employed by the health authority, for breach of statutory duty and negligence. By their statement of claim, they alleged that in 1987, on the initiative of the local authority, the psychiatrist interviewed the girl in the presence of a social worker employed by the local authority to ascertain whether, and if so by whom, she had been sexually abused; that, having diagnosed the abuse, the psychiatrist and the social worker mistakenly identified the abuser as the motherÕs cohabitee and concluded that the mother could not protect the girl from further abuse; and that in reliance on that assessment the local authority obtained court orders removing her from her mother, placing her in foster care and restricting the motherÕs access to her. The girl and her mother alleged failure to investigate the circumstances with proper care or to discuss them with the mother, and that the local authority had acted in breach of its statutory duty in failing to promote the girlÕs welfare. Both claimed damages for an anxiety neurosis suffered as a result of their separation. A master granted the defendantsÕ application to strike out the claims as disclosing no cause of action
12. On the plaintiffsÕ appeal, a judge affirmed the masterÕs order and dismissed the action. The Court of Appeal were unanimous in upholding the striking out of the claims based on breach of statutory duty simpliciter, but were divided on the issue whether the local authorities and the psychiatrist and the health authority were under any duty of care, whether direct or vicarious. Staughton and Peter Gibson L JJ held that there was no common law duty owed either to the child or to the mother. Sir Thomas Bingham MR, whilst agreeing that the motherÕs claim could not succeed, thought that there could be a duty of care to the child.
13. I propose to quote extensively from the leading speech of Lord Browne-Wilkinson in the subsequent appeal to the House of Lords, which was dismissed, notwithstanding that the appellants there could actually demonstrate that a mistake was made. At p739, before focusing on the relevant legislation, Lord Browne-Wilkinson said at p739:
"... the question whether there is ... a common law duty and if so
its ambit, must be profoundly influenced by the statutory framework
within which the acts complained of were done ... in my judgment a
common law duty of care cannot be imposed on a statutory duty if
the observance of such common law duty of care would be
inconsistent with, or have a tendency to discourage, the due
performance by the local authority of its statutory duties."
(See also Stovin v Wise, (Norfolk County Council Third Party) 1996
(3) WLR 388 at p414.)
14. His Lordship referred to the relevant statutory provisions in force at the time, namely the Children and Young PersonÕs Act, 1969 and the Child Care Act, 1980, and. at p747 he observed that:
"... the Acts in question are all concerned to establish an
administrative system designed to promote the social welfare of the
community. The welfare sector involved is one of peculiar
sensitivity, involving very difficult decisions how to strike the
balance between protecting the child from immediate feared harm and
disrupting the relationship between the child and its parents.
Decisions often have to be taken on the basis of inadequate and
disputed facts. In my judgment in such a context it would require
exceptionally clear statutory language to show a parliamentary
intention that those responsible for carrying out these difficult
functions should be liable in damages if, on subsequent
investigation with the benefit of hindsight, it was shown that they
had reached an erroneous conclusion and therefore failed to
discharge their statutory duties.
It is true that the legislation was introduced primarily for the
protection of a limited class, namely children at risk, and that
until April 1991 the legislation itself contained only limited
machinery for enforcing the statutory duties imposed. But in my view
those are the only pointers in favour of imputing to Parliament an
intention to create a private law cause of action. When one turns to
the actual words used in the primary legislation to create the
statutory duties relied upon in my judgment they are inconsistent
with any intention to create a private law cause of action"
15. After upholding the dismissal of the claims for damages for breach of statutory duty simpliciter, his Lordship went on to consider what he called the "Direct common law duty of care owed by the local authorities". The case was based solely on the vicarious liability of the council and the health authority for the alleged negligence of their servants.
16. In discussing the various policy considerations, His Lordship said at p749 that "a common law duty of care would cut across the whole statutory system set up for the protection of children at risk". At p.750, he said in a very important passage, which is very relevant to the instant appeal:
"... 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 childÕs family environment ... if a liability and 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 had 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.
The relationship between the social worker and the childÕs parents
is frequently one of conflict, the parent wishing to retain care of
the child, the social worker having to consider whether to remove
it. This is fertile ground in which to breed ill feeling and
litigation, often hopeless, the cost of which both in terms of money
and human resources will be diverted from the performance of the
social service for which they were provided. The spectre of
vexatious and costly litigation is often urged as a reason for not
imposing a legal duty. But the circumstances surrounding cases of
child abuse make the risk a very high one which cannot be ignored."
17. At p751 his Lordship continued:
"We were not referred to any category of case in which a duty of
care has been held to exist which is in any way analogous to the
present cases. Here, for the first time, the plaintiffs are seeking
to erect a common law duty of care in relation to the administration
of a statutory social welfare scheme. Such a scheme is designed to
protect weaker members of society (children) from harm done to them
by others. The scheme involves the administrators in exercising
discretions and powers which could not exist in the private sector
and which in many cases bring them into conflict with those who,
under the general law, are responsible for the childÕs welfare. To
my mind, the nearest analogies are the cases where a common law duty
of care has been sought to be imposed upon the police (in seeking to
protect vulnerable members of society from wrongs done to them by
others) or statutory regulators of financial dealings who are
seeking to protect investors from dishonesty. In neither of those
cases has it been thought appropriate to superimpose on the
statutory regime a common law duty of care giving rise to a claim in
damages for failure to protect the weak against the wrongdoer: see
Hill v. Chief Constable of West Yorkshire [1989] A.C. 53 and Yuen
Kun Yeu v. Attorney-General of Hong Kong [1988] A.C. 175. In the
latter case, the Privy Council whilst not deciding the point said,
at p.198, that there was much force in the argument that if the
regulators had been held liable in that case the principles leading
to such liability Ôwould surely be equally applicable to a wide
range of regulatory agencies, not only in the financial field, but
also, for example, to the factory inspectorate and social workers,
to name only a few.Õ In my judgment, the courts should proceed with
great care before holding liable in negligence those who have been
charged by Parliament with the task of protecting society from the
wrongdoings of others."
18. His Lordship then turned to consider the claim based on vicarious liability. At pp752-753 he said:
"The social workers and the psychiatrists were retained by the local
authority to advise the local authority, not the plaintiffs. The
subject matter of the advice and activities of the professionals is
the child. Moreover the tendering of any advice will in many cases
involve interviewing and, in the case of doctors, examining the
child. But the fact that the carrying out of the retainer involves
contact with and relationship with the child cannot alter the extent
of the duty owed by the professionals under the retainer from the
local authority. The Court of Appeal drew a correct analogy with the
doctor instructed by an insurance company to examine an applicant
for life insurance. The doctor does not, by examining the applicant,
come under any general duty of medical care to the applicant. He is
under a duty not to damage the applicant in the course of the
examination: but beyond that his duties are owed to the insurance
company and not to the applicant. ...
In my judgment ... the social worker[s] and the psychiatrist did
not, by accepting the instructions of the local authority, assume
any general professional duty of care to the plaintiff children. The
professionals were employed or retained to advise the local
authority in relation to the well being of the plaintiffs but not to
advise or treat the plaintiffs."
19. His Lordship held that the psychiatrist and the social workers were under no separate duty of care to the plaintiffs for breach of which the local authorities could be vicariously liable. He then went on to consider what has been called "witness immunity", and I will consider that later in my reasons.
20. The speech of Lord Browne-Wilkinson, concurred in by three of the other Lords of Appeal, prompts me to assert that if the House of Lords were faced with deciding this appeal, it would inevitably be dismissed. However, Mr Kourakis, counsel for the appellant, has stressed that there has been a difference in approach, particularly in regard to the requirement of a relationship of proximity, in the House of Lords and in the High Court of Australia, a difference which is highlighted, if it does not find its origins, in the judgment of Deane J in Jaensch v Coffey (1984) 155 CLR 549. At pp584-585 Deane J said:
"Lord Atkin did not seek to identify the precise content of the
requirement of the relationship of ÔproximityÕ which he identified
as a limitation upon the test of reasonable foreseeability. It was
left as a broad and flexible touchstone of the circumstances in
which the common law would admit the existence of a relevant duty of
care to avoid reasonably foreseeable injury to another. It is
directed to the relationship between the parties in so far as it is
relevant to the allegedly negligent act of one person and the
resulting injury sustained by the other. It involves the notion of
nearness or closeness and embraces physical proximity (in the sense
of space an[d] time) between the person or property of the plaintiff
and the person or property of the defendant, circumstantial
proximity such as an overriding relationship of employer and
employee or of a professional man and his client and causal
proximity in the sense of the closeness or directness of the
relationship between the particular act or cause of action and the
injury sustained: cf. the Ôsignposts or guidelines or relevant
considerationsÕ referred to by Cooke J. in Rutherford v. Attorney-
General [1976] 1 N.Z.L.R. 403, at p.411. The identity and relative
importance of the considerations relevant to an issue of proximity
will obviously vary in different classes of case and the question
whether the relationship is ÔsoÕ close ÔthatÕ the common law should
recognize a duty of care in a new area of class or case is, as Lord
Atkin foresaw, likely to be ÔdifficultÕ of resolution in that it may
involve value judgments on matters of policy and degree.
This does not mean that there is scope for decision in a particular
case by reference to what Jacobs J. called (H. C. Sleigh Ltd. V.
South Australia (1977) 136 C.L.R. 475, at p.514 Ôindividual
predilections ungoverned by authorityÕ or that it is a proper or
sensible approach to the requirement of proximity for it to be
treated as a question of fact to be resolved merely by reference to
the particular relationship between a plaintiff and defendant in the
circumstances of a particular case. The requirement of a
Ôrelationship of proximityÕ is a touchstone and a control of the
categories of case in which the common law will admit the existence
of a duty of care and, given the general circumstances of a case in
a new or developing area of the law of negligence, the question
whether the relationship between plaintiff and defendant with
reference to the allegedly negligent act possessed the requisite
degree of proximity is a question of law to be resolved by the
processes of legal reasoning by induction and deduction. The
identification of the content of the criteria or rules which reflect
that requirement in developing areas of the law should not, however,
be either ostensibly or actually divorced from the considerations of
public policy which underlie and enlighten it."
21. In Bryan v Maloney (1995) 182 CLR 609, in a joint judgment, Mason CJ, Deane and Gaudron JJ said pp617-619:
"The cases in this Court establish that a duty of care arises under
the common law of negligence of this country only where there exists
a relationship of proximity between the parties with respect to both
the relevant class of act or omission and the relevant kind of
damage. In more settled areas of the law of negligence concerned
with ordinary physical injury to the person or property of a
plaintiff caused by some act of the defendant, reasonable
foreseeability of such injury will commonly suffice to establish
that the facts fall into a category which has already been
recognized as involving a relationship of proximity between the
parties with respect to such an act and such damage as Ôattracting a
duty of care, the scope of which is settledÕ. In contrast, the field
of liability for mere economic loss is a comparatively new and
developing area of the law of negligence. In that area, the question
whether the requisite relationship of proximity exists in a
particular category of case is more likely to be unresolved by
previous binding authority with the consequence that the Ônotion of
proximity ... is of vital importance ...
As was pointed out in the recent majority judgment in Burnie Port
Authority v. General Jones Pty. Ltd. (1994) 179 C.L.R. 520, the
overriding requirement of a relationship of proximity represents the
conceptual determinant and the unifying theme of the categories of
case in which the common law of negligence recognizes the existence
of a duty to take reasonable care to avoid a reasonably foreseeable
risk of injury to another. There is no decision of the Court which
directly determines the question whether the relationship between
Mr. Bryan, as the builder of the house, and Mrs. Maloney, as a
subsequent owner of it, possessed the requisite degree of proximity
to give rise to a duty, on the part of Mr. Bryan, to take reasonable
care to avoid the kind of economic loss sustained by Mrs. Maloney.
Necessarily, as has been indicated, the resolution of that question
requires the articulation of both the factual components of the
relevant category of relationship and the identification of any
applicable policy considerations. Ultimately, however, it is a
question of law which must be resolved by the ordinary processes of
legal reasoning in the context of the existence or absence of the
requisite element of proximity in comparable relationships or with
respect to comparable acts and/or damage. Accordingly, it is
appropriate to approach the question through a consideration of some
related situations."
22. Cases such as these indicate that in the High Court of Australia policy considerations are to be taken into account in considering whether a relationship of proximity has been established, whereas in England they appear to be separate elements. (See the illuminating article by Mr J F Keeler in (1989) 12 Adelaide Law Review 93.)
23. Like the trial Judge, I find it convenient to consider the appellantÕs case against the Department/State of South Australia first, and that necessarily involves referring to the relevant "statutory framework" in the Community Welfare Act, 1972 ("the Act"). The preamble of the Act reads:
"An Act to promote various aspects of community welfare in this
State; to repeal the Social Welfare Act, 1926-1971; the Aboriginal
Affairs Act, 1962-1968; and the ChildrenÕs Protection Act, 1936-
1969; and for other purposes."
24. "Child" is defined to mean "a person who has not attained the age of 18 years"; "Department" is defined to mean "the Department for Community Welfare"; "Minister" is defined to mean "the Minister of Community Welfare". (See s6.)
25. Section 10, so far as relevant, reads:
"10(1) The objectives of the Minister and the Department under this
Act are -
(a) to promote the welfare of the community generally and of
individuals, families and groups within the community;
and
(b) to promote the dignity of the individual and the welfare of the
family as the bases of the welfare of the community,
in the following manner:
(c) - (d) ...
(e) by providing, assisting in the provision of or promoting
services designed to assist migrants, members of ethnic communities,
aboriginals, children, youth, aged persons, unemployed persons,
women, mentally or physically handicapped persons, single parents,
persons who live in isolated areas or any other section of the
community to overcome the disadvantages suffered by them, and to
participate to the greatest possible extent in the life of the
community;
(f) - (q) ...
(r) by doing such other things as may be necessary or desirable for
the purposes of achieving those objectives.
(2) - (4) ...
(5) The Minister, for the purpose of giving effect to the provisions
and objects of this Act, may -
(a) employ the resources of the Department in such manner as he
thinks fit;
(b) - (c) ...
(d) perform any other action that may be necessary or expedient for
that purpose."
26. Part IV of the Act is headed "Support Services for Children", and Division I thereof is headed - "Principles to be observed", and includes s25 which states:
"25. A person dealing with a child under or by virtue of any of the
provisions of this Part -
(a) shall regard the interests of the child as the paramount
consideration;
(b) shall seek to secure for the child care, guidance and support
within a healthy and balanced family environment;
(c) shall deal with the child in a caring and sensitive manner;
(d) shall have regard to the rights of the child, and to the needs
and wishes expressed by him;
and
(e) shall promote, where practicable, a satisfactory relationship
between the child and other members of, or persons within, his
family or domestic environment."
27. Division II of Part IV is headed "The Care and Protection of Children", and contains provisions for placing a child under the guardianship of the Minister, for the establishment of facilities for young offenders and children in need of care, foster care agencies, licensed ChildrenÕs Homes and the like.
28. Division III of Part IV is headed "The Protection of Children. Sections 86 - 90 inclusive provide for the establishment and functions of regional and local child protection panels. The Southern Metropolitan Regional Child Protection Panel seems to have been involved here. Division III also includes the following relevant sections:
"91.(1) Where a person suspects on reasonable grounds that an
offence under this Division has been committed against a child, that
person -
(a) if he is not obliged to comply with this section - may notify an
officer of the Department of his suspicion;
or
(b) if he is obliged to comply with this section - shall notify an
officer of the Department of his suspicion,
as soon as practicable after he forms the suspicion.
(2) The following persons are obliged to comply with this section -
(a) any legally qualified medical practitioner;
(b) any registered dentist;
(c) any registered or enrolled nurse;
(d) any registered psychologist;
(e) any pharmaceutical chemist;
(f) any registered teacher;
(g) any person employed in a school as a teacher aide;
(h) any person employed in a kindergarten;
(i) any member of the police force;
(j) any employee of an agency that provides health or welfare
services to children;
(k) any social worker employed in a hospital, health centre or
medical practice;
or
(l) any person of a class declared by regulation to be a class of
persons to which this section applies.
(3) - (4) ...
(5) Where a person acts in good faith and in compliance with the
provisions of this section, he incurs no civil liability in respect
of that action.
...
92.(1) Any person having the care, custody, control or charge of a
child, who maltreats or neglects the child, or causes the child to
be maltreated or neglected, in a manner likely to subject the child
to physical or mental injury, shall be guilty of an offence and
liable to a penalty not exceeding one thousand dollars or
imprisonment for a period not exceeding twelve months.
(2) - (3) ..."
Finally, I refer to s235a which states::
"235a.(1) A person shall not incur any civil liability for any act
or omission done by him in good faith in the exercise or discharge
of his powers, functions, duties or responsibilities under this Act.
(2) A liability that would, but for subsection (1), lie against a
person shall lie against the Crown."
29. After referring to the Act, the learned trial Judge said in the following passage with which, with respect, I agree:
"I have no difficulty in accepting the proposition that carelessness
on the part of officers of the department in investigating a
complaint of sexual abuse may well cause damage to the person
accused. There are obvious dangers in accepting and acting upon such
allegations without a proper investigation. As a matter of fairness
it is essential that those conducting enquiries into allegations of
child sexual abuse do so objectively and with an awareness of the
injustice which can result from giving weight to false or tenuous
allegations. However, as the authorities to which I have referred
make clear, this consideration of itself does not give rise to an
action in negligence. It is necessary to look further at the
relationship between the plaintiff and this defendant in the context
of the facts and circumstances which it is claimed give rise to a
general duty."
30. And like the trial Judge, I consider the authorities, including recent High Court dicta, compel the conclusion that the necessary relationship of proximity was not proved. In so saying, I do not overlook those provisions of the Act which stress the importance of not disrupting the relationship between a child and its parents, but I have found that similar policy considerations to those articulated in the Newham case are very persuasive here also.. It has not been suggested that any officer of the Department acted without good faith. As Lord Hoffman observed in Stovin v Wise, supra at pp408-409, a public body:
"may have discretionary powers which enable it to do things to
achieve a statutory purpose notwithstanding that they involve a
foreseeable risk of damage to others. In such a case, a bona fide
exercise of the discretion will not attract liability ..."
31. Mr Kourakis, counsel for the appellant, submitted, but did not develop the submission, that the presence in the Act of ss91 and 235 somehow served to establish a relationship of proximity between officers of the Department and the appellant, but I am unable to understand that submission.
32. I also agree with the learned trial Judge that the appellantÕs claim against the first two respondents fails. They were not retained to advise the appellant, and did not assume a duty of care to him. It was for Rebecca alone that they were invited to exercise their professional skill and judgment. The appellant was not their patient.
33. It is necessary now to refer to further arguments that were based on s91(5) of the Act. The learned trial Judge said:
"Mr Abbott QC for Drs Black and Govan advanced a further argument
that these two defendants were entitled to the immunity provided by
s91(5) of the Act, the wording of which I have set out above. The
immunity applies where a person, acting in good faith, notifies an
officer of the department of his or her reasonable suspicion that an
offence under that Division of the Act has been committed. I have no
doubt that both defendants acted in good faith throughout, but I do
not think that their actions can be characterised as reports of the
type contemplated by the Act. The departmental officers sought an
opinion from Dr Black in the light of the allegations. The opinion
was forwarded under cover of a document which purported to be a
report pursuant to s91, but communicating in this manner about a
matter already known to the department and which had been brought to
the attention of the doctor by the department does not constitute a
report to the department. I hold the same view in relation to the
report provided some months later by Dr Govan."
34. On appeal, Mr Kourakis adopted what his Honour had said but pursuant to a "Notice of Alternative Contention", Mr Abbott argued that the judgment should be upheld for the reasons given by his Honour, and:
"in the alternative and additionally upon the following grounds":
2. The First and Second Respondents were entitled to immunity
provided by section 91(5) of the Community Welfare Act, 1972.
3. The actions of the First and Second Respondents in reporting to
the Fifth Respondent, should be characterised as notifications of
the type contemplated by s.91 of the Community Welfare Act 1972.
4. The reports of the First and Second Respondents to the Fifth
Respondent were notifications pursuant to s.91(1)(b) of the
Community Welfare Act 1972 and consequently the First and Second
Respondents were entitled to the immunity provided by s.91(5) of the
Community Welfare Act 1972."
35. Mr Moss, counsel for the fifth respondent, agreed with Mr AbbottÕs argument as far as Dr Black was concerned, but argued that Dr Govan could not invoke s91(5), as he was not acting under the Act and was not in any sense "notifying an officer of the Department of his suspicion". He was asked to forward his report to the solicitors appointed to act for both children in the Family Court. In my opinion, the submissions of Mr Moss are clearly correct. Dr Black only is entitled to immunity under the section.
36. Mr Abbott also sought to rely on s235a, but again I agree with Mr Moss that neither Dr Black nor Dr Govan were exercising or discharging "powers, functions, duties or responsibilities under [the Act]."
37. I come now to deal with the further argument of Mr Abbott particularised in his clientsÕ Notice of Alternative Contention that the first and second respondents were "entitled to immunity from civil suit afforded to witnesses or potential witnesses". This was not really pleaded in the relevant defences, but I accept that Mr Abbott in his submission to the learned trial Judge that there was no case to answer, both orally and in writing, relied on the plea, and that he did so in his final address. The learned trial Judge did not refer to it in his judgment, perhaps understandably as he had found in favour of the respondents on other grounds. Moreover, at the time he published his reasons the judgment of a majority in the Court of Appeal in (Minors) v Bedfordshire CC and Others (supra) had not been upset on this point by the House of Lords.
38. Lord Browne-Wilkinson dealt with the argument in his speech at pp 754-755. His Lordship said:
"It is clear from this history that the Court of Appeal were under a
misapprehension. They were under the impression that the
psychiatristÕs opinion was not given in evidence at any stage and
held that the law did not provide immunity to Ôthose who have never
become involved in the administration of justiceÕ ... Apart from
this factual misapprehension, in my judgment the Court of Appeal
decision placed too narrow a limit on the principle of witness
immunity.
The immunity of witnesses from any action founded on their evidence
was originally designed to ensure in the public interest that
witnesses would not, through fear of later civil proceedings, be
inhibited from giving frank evidence in court. This immunity was
widened by this House in Watson v. MÕEwan; Watson v. Jones [1905]
A.C. 480 to cover information and reports given by a potential
witness to the legal advisers of a party for the purpose of
preparing a proof.
In Evans v. London Hospital Medical College (University of London)
[1981] l W.L.R. 184 Drake J. held that the immunity extended to
communications by the defendant to the Director of Public
Prosecutions of the results of a post mortem investigation which
they had been instructed to make for the purpose of possible
criminal proceedings."
39. His Lordship referred to the reasoning of Drake J which he said he found compelling at least in relation to the investigation and preparation of evidence in criminal proceedings, and continued:
"In my judgment exactly similar considerations apply where, in
performance of a public duty, the local authority is investigating
whether or not there is evidence on which to bring proceedings for
the protection of the child from abuse, such abuse frequently being
a criminal offence ...
In the present case, the psychiatrist was instructed to carry out
the examination of the child for the specific purpose of discovering
whether the child had been sexually abused and (if possible) the
identity of the abuser. The psychiatrist must have known that, if
such abuse was discovered, proceedings by the local authority for
the protection of the child would ensue and that her findings would
be the evidence on which those proceedings would be based. It
follows in my judgment that such investigations having such an
immediate link with possible proceedings in pursuance of a statutory
duty cannot be made the basis of subsequent claims."
40. The leading High Court of Australia case is Cabassi v Vila (1940) 64 CLR 130. At p141, Starke J said that "the rule of law is that no action lies against witnesses in respect of evidence prepared ... given, adduced or procured by them in the course of legal proceedings. The law protects witnesses and others, not for their benefit, but for a higher purpose, namely, the advancement of public justice ..." See also Rich ACJ at 139, and Williams J at 149.
41. In the case at bar, Dr Black became involved on 27 June 1987 for the purpose of investigating whether Rebecca had been sexually assaulted. The visit was organised by the Department. Dr BlackÕs written reports were sent to the Department. The Department is charged under the Act with the responsibility of providing support services for children and with the care and protection of children. It is the Government agency to which certain persons, including medical practitioners, must notify their suspicions of abuse pursuant to the provisions of s91. Ms Dibden gave evidence that it was a matter of departmental practice to inform the police if it was thought that sexual abuse might have occurred. Dr Black must have known that if sexual abuse was substantiated, and the identity of the abuser discovered, proceedings by the mother or the Department or both for the protection of the child, or criminal proceedings against the alleged abuser, or both Departmental and criminal proceedings, would ensue. Further, she must have known that her findings would be the evidence upon which such proceedings would be based. On 14 July 1987, the police advised the Department that they were not going to prosecute the appellant. Dr BlackÕs first report to the Department was dated 31 July 1987. There was no evidence that she was informed of the closing of the criminal investigation prior to sending her first report. It is therefore uncertain whether her written reports were made in contemplation of criminal proceedings. However, she must have been aware of the likelihood of Family Court proceedings, and the use for which her written reports would be used, either by the mother or by the Department. She was cross-examined about the method she used to take patient histories, and said "the way in which we go about it, has been set up with the Crown Law Department and has to be done that way in order to be prepared with the possibility of criminal court action. The SARC was not set up solely with inter-familial alleged abuse in mind."
42. As far as Dr Govan is concerned, the referral to him was made specifically for the purpose of the proceedings in the Family Court. He was asked to send his report to the independent legal representatives for the child (although a copy of the report was also sent to the solicitors for the parents). Dr Govan also gave evidence in the Family Court. He was called by counsel for the children in relation to access. Dr Black also gave evidence in the Family Court. Excerpts from the evidence of both medical witnesses were tendered before the learned trial Judge (see Exhibits P34 and P35).
43. Lord Browne-Wilkinson said that witness immunity attached because the investigations had "such an immediate link with possible proceedings in pursuance of a statutory duty". In my opinion, such immediacy exists here too. In my judgment, the investigations of Drs Black and Govan can not be made the basis of subsequent claims.
44. It is unnecessary, upon my view that the respondents did not owe a duty of care to the appellant, to consider whether a breach of that duty was established. The criticisms that were made of the investigations would provide scope for cross-examination of Departmental officers and the doctors if the appellant was charged with an offence, but my tentative view is that the evidence fell short of proving any breach. The appellant had further difficulties in proving causation and proving damage, but it is unnecessary to discuss those issues.
45. I would dismiss the appeal.
JUDGE2 PRIOR J
46. These proceedings arose out of events which followed allegations that the appellant had sexually abused his three year old daughter. The appellant claimed that two medical practitioners and officers of the Department for Community Welfare were in breach of duties of care owed to him. He said he suffered "great shock, anguish and emotional distress", an anxiety depressive state and distress at separation from his wife and daughter.
47. I add a little to the summary of the facts in the judgment of Matheson J.
48. The appellant was permitted periods of supervised access to both his children from October 1987. Unsupervised access was introduced in August 1990. His application for guardianship and control of both his children was dismissed. His wife was given sole custody and guardianship. The allegations of sexual abuse have not been adjudicated upon. Issues of custody and access began in the Family Court but the parties reached agreement after several days of hearing, in February 1990. A consent order was made adjourning the trial and permitting the appellant continued access to his children.
49. The appellant's case included evidence from Dr Le Page. He gave the appellant psychiatric treatment over a considerable period of time, from November 1987. Dr Le Page's view is that the appellant suffers from a reactive anxiety depressive state with psychosomatic manifestations and some elements of a post-traumatic stress disorder. The doctor said that the condition had resulted from a number of stressors, most of them associated with the allegations of sexual assault and the separation from his family.
50. In dismissing the appellant's claim, the trial judge found that no defendant owed any duty of care to the appellant. The trial judge also expressed the view that even if, contrary to his view, there was a duty of care owed by any defendant to the appellant, then there had been no breach of any such duty. Further, the trial judge said that it was also his view that the appellant had not proved a sufficient causal link between the conduct complained of and the injury and loss claimed by him. In His Honour's view there was considerable vagueness about the appellant's case on the issue of causation. It was His Honour's view that there was no indication of the causative steps necessary to link a breach of duty and loss.
51. In his judgment, the trial judge made reference to many authorities. He properly began with a reference to the notion of proximity as explained by Deane J in Jaensch v Coffey (1984) 155 CLR 549 and subsequently adopted by a majority of justices of the High Court sitting in Cook v Cook (1986) 162 CLR 376 and San Sebastian v Minister Administering The Environmental Planning and Assessment Act 1979 and Another (1986) 162 CLR 340. A duty of care only arises where a relationship of proximity between a plaintiff and defendant is shown to exist. Policy considerations are not excluded: Gala v Preston (1991) 172 CLR 243 at 253. In Jaensch v Coffey (1984) 155 CLR 549 at 584, 585, Deane J said that the notion of proximity:
"...is directed to the relationship between the parties in so far as
it is relevant to the allegedly negligent act of one person and the
resulting injury sustained by the other. It involves the notion of
nearness or closeness and embraces physical proximity (in the sense
of space and time) between the person or property of the plaintiff
and the person or property of the defendant, circumstantial
proximity such as an overriding relationship of employer and
employee or of a professional man and his client and causal
proximity in the sense of the closeness or directness of the
relationship between the particular act or cause of action and the
injury sustained: cf. the 'signposts or guidelines or relevant
considerations' referred to by Cook J, in Rutherford v Attorney-
Genera1 [1976] 1 NZLR 403 at 411. The identity and relative
importance of the considerations relevant to an issue of proximity
will obviously vary in different classes of case and the question
whether the relationship is 'so' close 'that' the common law should
recognise a duty of care in a new area or class of case is, as Lord
Atkin foresaw, likely to be 'difficult' of resolution in that it may
involve value judgments on matters of policy and degree."
52. In Sutherland Shire Council v Heyman (1985) 157 CLR 425 at 497 and 498 Deane J pointed out that the notion of proximity is obviously inadequate to provide an automatic rigid formula for determining liability. This was not a disadvantage, so much as:-
"It has been the flexibility of fundamental concepts and principles
which has enabled the common law to reflect the influence of
contemporary standards and demands and which has in no small part
underlain its genius to provide a living element of the social
compact of civilisation for different peoples through different ages
and in different parts of the world".
53. After referring again to what he said in Jaensch v Coffey about both the identity and the relative importance of the factors which are determinative of an issue of proximity being likely to vary in different categories of case, Deane J continued:-
"That does not mean that there is scope for decision by reference to
idiosyncratic notions of justice or morality or that it is a proper
approach to treat the requirement of proximity as a question of fact
to be resolved merely by reference to the relationship between the
plaintiff and the defendant in the particular circumstances. The
requirement of the relationship of proximity serves as a touchstone
and control of the categories of case in which the common law will
adjudge that a duty of care is owed. Given the general circumstances
of a case in a new or developing area of the law of negligence, the
question what (if any) combination or combinations of factors will
satisfy the requirement of proximity is a question of law to be
resolved by the processes of legal reasoning, induction and
deduction. On the other hand, the identification of the content of
that requirement in such an area should not be either ostensibly or
actually divorced from notions of what is 'fair and reasonable' or
from the considerations of public policy which underlie and
enlighten the existence and content of the requirement."
54. In this appeal it is complained that the trial judge erred in denying a duty of care being owed to the appellant by relying upon English authorities which, it was said have developed along a different path to Australia by emphasising policy considerations and pure economic loss criteria rather than focus on proximity.
55. The trial judge spoke of modern authorities providing guidance for determining the existence or otherwise of a duty of care and then said that the present case did not come within any of the established categories of negligence. He therefore said it was necessary to refer to matters of general principle. He referred to Jaensch v Coffey, San Sebastian, Gala v Preston and Sutherland Shire Council v Heyman before referring to any English authority. He referred to provisions in ss10, 25, 90 and 91 of the Community Welfare Act, 1972, after properly observing that the relationship between the appellant and the respondents could not be determined without reference to the provisions of the Act, particularly so in the case of the Department. His Honour said:-
"This is not to say that the statutory function is the only relevant
consideration, but insofar as it explains the role of the Department
it assists in defining the relationship, if any, existing between
the plaintiff and this defendant. It also identifies some issues of
public policy relevant to the question as to whether a duty of care
can be said to exist."
56. His Honour then dealt with what he described as the broad thrust of the appellant's case against the Department. The argument put to the trial judge was that the Department either misinterpreted the work of Dr Black or ought to have realised itself the deficiencies in the investigation. It was said that the Department failed to check for itself that Dr Black was adopting reasonable scientific methodology when investigating abuse. Furthermore, the appellant's case was that the Department referred the appellant's daughter to Dr Govan for treatment when such a referral was not reasonable and contra indicated.
57. His Honour then said:-
"I have no difficulty in accepting the proposition that carelessness
on the part of officers of the department in investigating a
complaint of sexual abuse may well cause damage to the person
accused. There are obvious dangers in accepting and acting upon such
allegations without a proper investigation. As a matter of fairness
it is essential that those conducting enquiries into allegations of
child sexual abuse do so objectively and with an awareness of the
injustice which can result from giving weight to false or tenuous
allegations. However, as the authorities to which I have referred
make clear, this consideration of itself does not give rise to an
action in negligence. It is necessary to look rather at the
relationship between the plaintiff and this defendant in the context
of the facts and circumstances which it is claimed give rise to a
general duty.
Any investigation into the alleged sexual abuse of a child
instigated or undertaken by the department's officers under the
provisions of the Act must have as its central objective the welfare
of the child. Not only is this specifically provided for in s25(a)
of the Act but it is to be inferred from the functions and powers
contained in Part IV of the Act.
Although, as I have said, a person accused of sexual abuse may be
affected by the investigation, it is hardly accurate to speak of a
relationship between the department and the person accused in any
relevant sense. Injury to a person accused resulting from an
inadequate assessment of sexual abuse allegations may well be
foreseeable, but a coexisting duty to the person accused would tend
to conflict with the clear statutory duty to act in the interests of
the child."
58. His Honour then referred to an English and a New Zealand authority (Clark v Bruce Lance &; Co (1988) 1 All ER 364 and Garside v Sheffield, Young and Ellis (1983) NZLR 37), where potential conflicts of interest resulted in a denial of a duty of care in each case. It was put to the Full Court that these decisions must now be in doubt in light of the High Court's decision in Bryan v Maloney (1995) 182 CLR 609. However that may be, His Honour appears most persuaded by the decision in a case he described as "a case closer to the facts of the present case": X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 665 and 666. His Honour's reference was to the decision of the Court of appeal [1995] 2 AC 633 at 651. An appeal to the House of Lords was dismissed after judgment in this case. A mother and child were alleging negligence against a local authority's social worker and psychiatrist for failing to investigate the facts relating to a complaint of sexual abuse with proper care and thoroughness and for failing to discuss their conclusions about an allegation of sexual abuse with the mother. The social worker and psychiatrist wrongly believed that the person responsible for the abuse was the man with whom the mother was then living. The mother excluded the man from her home. The child was made a ward of court and the local authority granted care and control of the child. The court order was that the child should not return home and that the mother's access be limited. The child and the mother claimed that as a result of their enforced separation each of them had suffered a positive psychiatric disorder diagnosed as anxiety neurosis.
59. The trial judge quoted a passage from the judgment of the Master of Rolls, in which Sir Thomas Bingham denied that a duty of care was owed by the psychiatrist to the child's mother [1995] 2 AC 633 at 665 and 666, and said that the psychiatrist's duty was to act in the interests of the child. The trial judge then said:-
"There are also public policy issues which militate against the
recognition of a duty of care in this case. As I have attempted to
point out, the relevant provisions of the Community Welfare Act are
directed towards the protection of children. In order to carry out
this purpose those entrusted with the responsibilities created by
the Act are required to investigate difficult issues of fact and
make decisions based upon judgment and the exercise of discretion.
To impose a duty of care to be exercised in favour of persons in the
position of the plaintiff, thereby placing the department and its
officers at risk of being sued, would tend to inhibit the expression
of opinions and the carrying out of protective measures, thus
impeding the effective administration of the Act."
60. His Honour saw an analogy "in the investigational role of the police". He cited Hill v Chief Constable of West Yorkshire [1988] QB 60 at 75 and [1985] AC 53. In that case it was held that the mother of the last victim of a murderer was owed no duty of care by investigating police officers for failing to apprehend the murderer before her daughter's death. Glidewell LJ gave the reason for holding that the police were immune from an action of the kind sought to be pursued as being "similar to those for holding that a barrister may not be sued for negligence in his conduct of proceedings in court" [1988] QB 60 at 75. His Honour also referred to a decision of the Court of Appeal, holding that there was no general duty of care owed by the Crown Prosecution Service to a person prosecuted by it: Elguzouli-Daf v Commissioner of Police; McBrearty v Ministry of Defence [1995] QB 335. Steyn LJ there acknowledged that individualised justice to persons aggrieved by careless decisions of prosecutors militated in favour of the recognition of a duty of care but nonetheless concluded that there were "compelling considerations, rooted in the welfare of the whole community, which outweighed the dictates of individualised justice" [1995] QB 335 at 349.
61. His Honour then referred to Yuen Kun Yeu and Others v Attorney- General of Hong Kong [1988] 1 AC 175. The Privy Council there considered whether a duty was owed by a regulatory agency in favour of a private individual. The agency's functions were said to involve a broader public interest than concern for the protection of individual investors. His Honour quoted the public policy argument referred to at 198 of Their Lordships' Advice. That passage included a reference to sound judgment being less likely to be exercised if the agency were to be looking over its shoulder at the prospect of claims. Its activities were likely to be conducted in a detrimentally defensive frame of mind.
62. The trial judge then said that whilst it might be thought that police and prosecuting authorities come into a special category attracting immunity, the public policy reasoning in those cases and that in the Privy Council case were applicable to cases involving the investigation of child abuse by a statutory authority. His Honour cited some remarks of Peter Gibson LJ in Mv Newham [1995] 2 AC 633 at 681. The passage quoted included the following:-
"If the law were now to recognise a duty of care owed to the
children by the local authority in taking decisions on
interventions, there is a significant risk of the exercise of such
functions being carried on in a detrimentally defensive frame of
mind. I repeat that such decisions are delicate and difficult. I do
not doubt that reasonable persons may often reach different
conclusions on the same matter, and the nature of the matter is such
as to arouse strong emotions. Further, if litigation were encouraged
by a duty of care being held to exist, a major diversion of
resources to defending such actions is likely to ensue. I cannot see
that this is fair, just or reasonable, particularly when one bears
in mind the existence of other remedies."
63. The trial judge then said:-
"In the present case the departmental officers were required to
investigate the complaint which had been reported to them to the
extent necessary in order for them to carry out their duties under
the Act. An important part of the investigation involved the
referral of the child to SARC. Although the need did not arise in
the present matter there would be cases in which the officers would
be required to consider whether recommendation should be made to the
Minister in relation (to) other ministerial powers concerned with
guardianship. They had to decide whether to intervene in the Family
Court proceedings. And in all these respects they were required to
regard the interests of the child as the paramount consideration.
In my view the suggestion of a duty of care owed to the plaintiff in
the circumstances under consideration is incompatible with the
function and purpose of the departmental role. Furthermore, the
incorporation into these responsibilities of a duty to the plaintiff
would have the potential to inhibit to a significant degree the
performance of the duties of the department. As I have said I do not
wish to imply that great care should not be taken in order to avoid
acting upon false allegations. However, I am of the opinion that
this cannot be translated into a duty of care which would allow for
a cause of action of the type claimed by the plaintiff. I find,
therefore, that no such duty exists."
64. His Honour said that the same considerations were relevant to the appellant's case against the two doctors. His Honour's view was that Dr Black was asked to examine the child by Departmental officers in order to assist them in discharging their responsibilities under the Act. His Honour noticed that such examinations are also considered by police in deciding whether to charge any alleged perpetrator with a sexual offence. His Honour said:-
"The possibility of a conflict of interest, the lack of proximity
and the policy considerations to which I have referred in discussing
the case against the department would also deny the existence of a
duty of care to be exercised by Dr Black in favour of the plaintiff.
In this respect I again follow the approach of the court in Newham's
case where it was held that the psychiatrist did not owe a general
duty to the mother of the alleged victim. Although the position of
Dr Govan is somewhat different, I can see no reason why the same
approach should not apply to the case against him. I am satisfied on
the whole of the evidence that the main reason why the departmental
officers asked Dr Govan to examine Rebecca was to obtain his view on
the advisability of access by the plaintiff. Again the possibility
of a conflict between the interests of the child and the interests
of the plaintiff is plainly to be seen. Present also is the
importance of Dr Govan not being inhibited in expressing his view."
65. I agree with the trial judge that no duty of care was owed by any respondent to the appellant. My reasoning is slightly different from that of the trial judge in the four passages last quoted. The English authorities are of assistance in considering the relevant policy considerations. It must be concluded that no duty of care is owed to the alleged perpetrator of sexual abuse by doctors and officers of the Department because there is, on policy grounds. no relationship of proximity between such a person and them. Any, possibility of a conflict of interest is part of both what is fair and reasonable and the policy considerations going to deny any relationship of proximity: Jaensch v Coffey (1985) 157 CLR 425 at 498. To determine the matter in this way is to give effect to the prevailing approach in the High Court which identifies notions of what is fair and reasonable and policy considerations as going to the question of proximity, rather than as separate matters for consideration as in England. When X (Minors) v Bedfordshire County Council went to the House of Lords, Lord Browne- Wilkinson referred to the fact that the local authority accepted that it could foresee damage to the child and her mother if the authority carried out statutory duties negligently and that the relationship between the authority and the child and her mother was sufficiently proximate. The question remaining, consistent with the approach of the House of Lords in Caparo Industries v Dickman [1990] 2 AC 605, was simply whether it was just and reasonable to impose a common law duty of care in all the circumstances.
66. Notions of what is fair and reasonable and policy considerations, considered as a third requirement by the House of Lords in Caparo, are taken into account here to deny a relationship of proximity between the appellant and the respondents. The appellant was not owed a duty of care by any of the respondents. Compelling considerations outweigh the dictates o individualised justice. To acknowledge a duty of care in favour of the appellant would be unfair and unreasonable. It would create risks of a conflict of interest-and duty upon those seeking to carry into effect the protective measures contained in the Community Welfare Act, and impede the effective administration of it. The tendency to inhibit the expression of opinions and action in a detrimentally, defensive frame of mind are but factors contributing to the conclusion that the appellant's alleged right of action must be rejected. Another is the unjustifiable diversion of money and human resources resulting from the existence of such a remedy.
67. The Crown in right of the State of South Australia is not liable to the appellant for any act or omission of its officers done in good faith in the exercise or discharge of powers, functions, duties or responsibilities under the Act. Notwithstanding arguments put to the contrary, Dr Black and Dr Govan are not persons to whom the provisions of s23 5a apply. Nor are they entitled to have the claims against them dismissed because of a particular exemption from civil liability contained in s91(5) of the Act. The trial judge was correct to identify their involvement in this case as different from the situation which attracts that particular immunity. That immunity applies where a person acting in good faith notifies an officer of the Department of a suspicion that an offence under a particular division of the Act has been committed. Here two doctors were asked for opinions by Departmental officers about a matter already known to the Department and brought to the doctors' attention by officers of the Department.
68. I am far from persuaded that the doctors gain immunity by reliance upon the principle of witness immunity either. They were not within a relationship of proximity to the alleged perpetrator of sexual abuse for the reasons already referred to.
69. Suffice it to say that in this case Dr Black's disclosure to the mother could not attract the witness immunity principle and that Dr Govan's opinions were sought with respect to civil proceedings well after a decision not to prosecute was made."
70. The appeal should be dismissed on the ground that no duty of care is owed to the alleged perpetrator of sexual abuse by the Department for Community Welfare or the two doctors in this case. It is neither necessary nor appropriate to deal with the questions of breach of duty and causation.
JUDGE3 PERRY J
71. A statement of the relevant facts appears in the judgment of Matheson J. I will add to that only where necessary to make these reasons intelligible.
72. The case was advanced by the appellant in this way: the two medical practitioners were said to be negligent in the manner they went about the tasks assigned to them; the two hospitals, being respectively the employers of the two medical practitioners, were vicariously liable for their negligence; and the State of South Australia was, through the agency of the Department of Community Welfare ("the DCW"), liable in negligence having regard to the alleged failure by the DCW to carry out its duties and responsibilities pursuant to the Community Welfare Act 1972 ("the Act").
73. Although a reference is made in the statement of claim (para 42) to the DCWÕs "duties and responsibilities generally", the thrust of the plea against the State of South Australia and the presentation of the case based on alleged failings on the part of the DCW is confined to the latterÕs duties under the Act, that is, the alleged negligent performance of its statutory duties. For convenience, I will hereafter refer to the case against the DCW rather than the case against the State of South Australia.
74. The central question raised by the appeal is whether the circumstances were such as to give rise to a duty of care on the part of any of the respondents such as to found a cause of action in negligence against them at the suit of the appellant.
75. The learned trial Judge took the view that in the particular circumstances of the case there was no such duty of care.
76. One starts with the proposition that injury and loss to a parent may clearly be anticipated to result from the careless investigation by authorities such as the DCW into a case of alleged abuse of a child, and it is in that sense foreseeable.
77. But foreseeability alone does not give rise to liability in negligence.
78. In Dorset Yacht Co v Home Office, Lord Diplock instances a number of examples of acts or omissions which give rise to foreseeable loss or damage but with respect to which the law has consistently denied the existence of a duty of care.
79. In McLoughlin v OÕBrian and Ors, Lord Wilberforce said: "That foreseeability does not of itself, and automatically, lead to a duty of care is, I think, clear."
80. In the same case he had earlier observed that there was: "... a common principle, namely that, at the margin, the boundaries of manÕs responsibility for acts or negligence have to be fixed as a matter of policy."
81. That dictum was expressly approved by Gibbs CJ in Jaensch v Coffey.
82. In the same case, Deane J said:
"The requirement of a Ôrelationship of proximityÕ is a touchstone
and a control of the categories of case in which the common law will
admit the existence of a duty of care and, given the general
circumstances of a case in a new or developing area of the law of
negligence, the question whether the relationship between plaintiff
and defendant with reference to the allegedly negligent act
possessed the requisite degree of proximity is a question of law to
be resolved by the processes of legal reasoning by induction and
deduction. The identification of the content of the criteria or
rules which reflect that requirement in developing areas of the law
should not, however, be either ostensibly or actually divorced from
the considerations of public policy which underlie and enlighten
it."
83. Deane J developed that view in Sutherland Shire Council v Heyman and Anor. In that case he said:
"The requirement of proximity is directed to the relationship
between the parties in so far as it is relevant to the allegedly
negligent act or omission of the defendant and the loss or injury
sustained by the plaintiff..... The requirement of a relationship of
proximity serves as a touchstone and control of the categories of
case in which the common law will adjudge that a duty of care is
owed."
84. With respect to the particular question at issue in that case, namely, whether or not the cause of action arose out of the discharge by a municipal council of its duties of inspection under the Local Government Act 1919 (NSW), he went on to observe:
"In such a case, the mere fact that a public body or instrumentality
is exercising statutory powers and functions does not mean that it
enjoys immunity from liability to private individuals under the
ordinary law beyond the extent that there can be actually discerned
in the relevant legislation an express or implied intent that the
private rights of individuals be displaced or subordinated. Nor does
it mean that the existence of the statutory powers and functions,
the assumption of responsibility which may be involved in their
exercise, or any reliance which may be placed upon a presumption
that they have been or are being properly exercise is to be ignored
or discounted in determining whether there existed in the
relationship between public body or instrumentality and private
citizen a degree of proximity which was adequate to give rise to a
duty of care under the principles of common law negligence."
85. In Gala v Preston in the joint judgment of the majority appears the following passage:
"The requirement of proximity constitutes the general determinant of
the categories of case in which the common law of negligence
recognises the existence of a duty to take reasonable care to avoid
a reasonably foreseeable and real risk of injury. In determining
whether the requirement is satisfied in a particular category of
case in a developing of the area of law of negligence, the relevant
factors will include policy considerations."
86. Swan v State of South Australia concerned a claim by an infant plaintiff who alleged negligence on the part of the South Australian Parole Board and parole officers employed by the Department of Correctional Services in failing to supervise the performance of parole conditions by a prisoner who had been released on parole so as to ensure that he did not come into contact with children under the age of 14 years except in the presence of another adult.
87. In his judgment Bollen J (with whom Mohr and Duggan JJ agreed) accepted that in determining whether or not proximity had been established, policy considerations, and in particular those arising from a proper consideration of the Correctional Services Act 1982, fell to be considered.
88. In Bryan v Maloney Mason CJ, Deane and Gaudron JJ in their joint judgment said:
"The cases in this Court establish that a duty of care arises under
the common law of negligence of this country only where there exists
a relationship of proximity between the parties with respect to both
the relevant class of act or omission and the relevant kind of
damage. ...
As was pointed out in the recent majority judgment in Burnie Port
Authority v General Jones Pty Ltd, the overriding requirement of a
relationship of proximity represents the conceptual determinant and
the unifying theme of the categories of case in which the common law
of negligence recognises the existence of a duty to take reasonable
care to avoid a reasonably foreseeable risk of injury to another.
There is no decision of the Court which directly determines the
question whether the relationship between Mr Bryan, as the builder
of the house, and Mrs Maloney, as a subsequent owner of it,
possessed the requisite degree of proximity to give rise to a duty,
on the part of Mr Bryan, to take reasonable care to avoid the kind
of economic loss sustained by Mrs Maloney. Necessarily, as has been
indicated, the resolution of that question requires the articulation
of both the factual components of the relevant category of
relationship and the identification of any applicable policy
considerations. Ultimately, however, it is a question of law which
must be resolved by the ordinary processes of legal reasoning in the
context of the existence or absence of the requisite element of
proximity in comparable relationships or with respect to comparable
acts and/or damage. Accordingly, it is appropriate to approach the
question through a consideration of some related situations."
89. In the United Kingdom, the authorities suggest that not only must the separate elements of foreseeability and proximity be addressed, but that at least in cases involving what might loosely be described as public policy considerations, there is an added test as to whether or not it is "just and reasonable" that a duty of care should be imposed.
90. For example, in X (minors) v Bedfordshire County Council and Ors Lord Browne-Wilkinson observed:
"If the plaintiffÕs complaint alleges carelessness, not in the
taking of a discretionary decision to do some act, but in the
practical manner in which that act has been performed (eg the
running of a school) the question whether or not there is a common
law duty of care falls to be decided by applying the usual
principles ie those laid down in Caparo Industries Plc v Dickman.
Was the damage to the plaintiff reasonably foreseeable? Was the
relationship between the plaintiff and the defendant sufficiently
proximate? Is it just and reasonable to impose a duty of care? See
Rowling v Takaro Properties Ltd; Hill v Chief Constable of West
Yorkshire.
However the question whether there is such a common law duty and if
so its ambit, must be profoundly influenced by the statutory
framework within which the acts complained of were done."
91. See also Peabody Fund v Sir Lindsay Parkinson &; Co Ltd and Ors , Hill v Chief Constable of West Yorkshire and Yuen Kun Yew and Ors v Attorney-General of Hong Kong.
92. In Elguzouli-Daf v Commissioner of Police of the Metropolis and Anor in which the plaintiffs unsuccessfully sued the Commissioner of Police and others alleging a negligent failure to investigate serious offences against them, with the result that they spent periods in detention, Steyn LJ said:
"And in so approaching the question we must consider the ultimate
question from three perspectives, namely (a) the foreseeability of
the harm that ensues, (b) the nature of the relationship between the
parties, usually called the element of proximity, and (c) the
question whether it is fair, just and reasonable that the law should
impose a duty of care."
93. Although, therefore, the approach of the courts in England differs, the decisions of the courts of that country, including those to which I have referred, are nonetheless illustrative of the kinds of policy considerations which will be taken into account in construing statutory provisions applicable to public authorities sought to be made liable in negligence.
94. At the end of the day, whether the matter is to be approached within the rubric of the test of proximity or as a separate consideration extrinsic to that test, the question nonetheless comes down to one of statutory construction. In particular, the question is whether, having regard to the terms in which the relevant statutory provisions are cast, their operation, having regard to the other relevant circumstances, is such as to exclude tortious liability.
95. So that it is incumbent, conceding the element of foreseeability, to address the question whether the relevant statutory powers and functions which arose under the Community Welfare Act1972 operated, in all the circumstances, in such a way that the element of proximity was not satisfied.
96. Part II, Division II of the Act is headed "Objectives and Powers of the Minister and the Department". Within that Division, s10(1) provides, inter alia:
"(1) The objectives of the Minister and the Department under this
Act are-
(a) to promote the welfare of the community generally and of
individuals, families and groups within the community;
and
(b) to promote the dignity of the individual and the welfare of the
family as the bases of the welfare of the community, ..."
97. The section then goes on to set out the manner in which those objectives are sought to be achieved, which includes: "(e) by providing ..... services designed to assist .... children ...."
98. Part IV of the Act (sections 25-94 inclusive) is headed "Support Services for Children". Within Division I of that Part, which deals with "Principles to be Observed", s25 provides:
"A person dealing with a child under or by virtue of any of the
provisions of this Part-
(a) shall regard the interests of the child as the paramount
consideration;
(b) shall seek to secure for the child care, guidance and support
within a healthy and balanced family environment;
(c) shall deal with the child in a caring and sensitive manner;
(d) shall have regard to the rights of the child, and to the needs
and wishes expressed by him;
and
(e) shall promote, where practicable, a satisfactory relationship
between the child and other members of, or persons within, his
family or domestic environment."
S27 provides the machinery pursuant to which a child may be placed under the guardianship of the Minister. Apart from cases in which applications to that end may be made by a guardian of the child, or in certain circumstances by the child itself, the Minister may act of his or her own initiative and may, by order in writing, place a child under his or her guardianship. He or she may do so, inter alia:
"... where ... a guardian of the child has maltreated ... the child
to the extent that the child has suffered, or is likely to suffer,
physical or mental injury, or to the extent that his physical,
mental or emotional development is in jeopardy; ..." (s27(3)(a)).
99. Pursuant to s82 of the Act, the Director-General, or any officer of the department authorised by the Director-General, may:
"... where he suspects on reasonable grounds that there is a child
in need of care in any place or premises, enter and remain in that
place or premises for the purpose of inquiring into the
circumstances of the child."
100. Part IV, Division III, headed "The Protection of Children", provides for the establishment of regional and local child protection panels. Pursuant to s88, the functions of a regional panel include an obligation to receive and consider notifications of maltreatment of children and
"to make such recommendations as to remedial treatment or action to
the persons involved in a case of maltreatment and to any
appropriate health or welfare agency as the panel thinks
appropriate, and to facilitate the carrying into effect of that
remedial treatment or action" (s88(a) and (b)).
101. The functions of local panels are defined by s90 and include, inter alia, the provision of: "... guidance, assistance and support to persons involved in the prevention, treatment or management of cases of maltreatment of children;" and the provision of: "... guidance, assistance and support to persons who seek help in relation to the maltreatment of children;"
102. S91 provides
"(1) Where a person suspects on reasonable grounds that an offence
under this Division has been committed against a child, that person-
(a) if he is not obliged to comply with this section - may notify an
officer of the Department of his suspicion;
or
(b) if he is obliged to comply with this section - shall notify an
officer of the Department of his suspicion,
as soon as practicable after he forms the suspicion.
(2) The following persons are obliged to comply with this section-
(a) any legally qualified medical practitioner;
(b) any registered dentist;
(c) any registered or enrolled nurse;
(d) any registered psychologist;
(e) any pharmaceutical chemist;
(f) any registered teacher;
(g) any person employed in a school as a teacher aide;
(h) any person employed in a kindergarten;
(i) any member of the police force;
(j) any employee of an agency that provides health or welfare
services to children;
(k) any social worker employed in a hospital, health centre or
medical practice;
(l) any person of a class declared by regulation to be a class of
persons to which this section applies.
(3) Any such notification must be accompanied by a statement of the
observations and opinions upon which the suspicion is based.
(4) An officer of the Department who has received any such
notification shall forthwith report the matter to the regional panel
constituted for the region in which the offence is alleged to have
been committed.
(5) Where a person acts in good faith and in compliance with the
provisions of this section, he incurs no civil liability in respect
of that action."
103. S92 of the Act creates an offence on the part of any person having the "care, custody, control or charge of a child" who "maltreats or neglects the child, or causes the child to be maltreated or neglected, in a manner likely to subject the child to physical or mental injury".
104. Pursuant to s93, an officer of the department or member of the police force who suspects on reasonable grounds that an offence against Division III (which includes an offence against s92) may on the authorisation of the Director-General cause the child in question to be taken to a hospital or legally qualified medical practitioner for medical examination, if the whereabouts of the guardians of the child are not reasonably ascertainable, or it would be detrimental to the interests of the child to delay medical examination while the consent of a guardian was obtained, or where the guardian has refused or failed to take the child for such a medical examination.
105. Reference may also be made to certain international instruments. As I said in Walsh and Anor v Department of Social Security with reference to provisions in the Crimes Act 1914 (Cth) which oblige a sentencing court to take into account the probable effect of the sentence on the defendantÕs family or dependants:
"Various international instruments which have been entered into by
Australia emphasise the protection by the society and the State of
the family as the natural and fundamental group unit of society,
and preservation of the rights of children. Although such
international instruments do not form part of Australian law, they
serve to underscore the importance of provisions such as s16A(2)(p)
of the Crimes Act, which, where possible, should be construed and
applied consistently with them. "
106. There is no reason why such considerations should not apply to State as opposed to Commonwealth legislation. The international instruments to which I there refer run in parallel to and buttress the importance of the corresponding provisions of the Act.
107. At all times the social worker concerned, Ms Dibden, was acting as an employee of the department and in doing so was acting within the scope of the powers and duties conferred by the Act. She was a worker within the section of the department known as "Crisis Care". It was part of her role to attend on families where there had been an allegation of abuse of a child. According to her evidence, it was in the ordinary course of her duties that she accompanied parents with a child to other agencies, including medical practitioners, for the purpose of examination.
108. It was in the performance of that role, and following initial contact by the childÕs mother with the Noarlunga district office of the Department of Community Welfare that Ms Dibden arranged the appointment for the child to see Dr Black on 27 June 1987. That, of course, was a lengthy examination of the child, which included a discussion between Dr Black and the childÕs mother. The upshot of that was that the mother left the matrimonial home with the child on the same day, and did not further cohabit with the appellant.
109. Dr Black only saw the child on the one occasion. Some time later, on 31 July 1987, she gave a lengthy report to the department.
110. The childÕs mother made an application to the Family Court on 10 July 1987 for sole custody of the child. The appellant responded with a cross-application for custody. The Family Court Judge who dealt initially with the applications invited the department to intervene in the proceedings. They took advice from the Crown Solicitor, as a result of which they decided not to play an active role. However, a separate legal representative to act in the interests of the child was appointed on 13 August 1987.
111. The department then decided to arrange for the child to be assessed by a child psychiatrist in order to obtain an opinion as to the advisability of supervised access. Dr Govan undertook that assessment, and saw the child on a number of occasions between 1 September 1987 and 8 August 1990.
112. On the first occasion of contact between Ms Dibden and the child, that is, on 27 June 1987, and following the examination by Dr Black, Ms Dibden telephoned an officer known to her at the Darlington police station. This was in accordance with departmental practice. She had a conversation with the police officer, as did Dr Black. As a result of that, on the same day the police officer attended at the appellantÕs home and interviewed him. He denied the allegations. No charges were brought.
113. Previously a social worker had given written notification of alleged maltreatment of the child to the Noarlunga office of the department. That notification was no doubt given pursuant to s91 of the Act. It was that notification which triggered off the intervention of Ms Dibden and her action in taking the child and the childÕs mother to Dr Black. The childÕs mother consented to the medical examination, but had she not done so, no doubt the department could have insisted upon it by invoking its coercive powers contained in s93 of the Act.
114. In the circumstances which I have outlined, it cannot be disputed that Ms Dibden, and for that matter, the other officers of the department who had contact with the case, were acting within the framework of the Act.
115. Against that background it is necessary to consider whether or not the appellant established the element of proximity necessary to found a cause of action in negligence against the department.
116. In my opinion, the duties arising under the Act, and the obligations cast upon the department, once notified of a case of alleged maltreatment of a child, tell against the recognition by the Court of the necessary element of proximity. The learned trial Judge was right, in my view, when he said, during the course of his reasons for judgment:
"Any investigation into the alleged sexual abuse of a child
instigated or undertaken by the departmentÕs officers under the
provisions of the Act must have as its central objective the welfare
of the child. Not only is this specifically provided for in s25(a)
of the Act but it is to be inferred from the functions and powers
contained in Part IV of the Act.
Although, as I have said, a person accused of sexual abuse may be
affected by the investigation, it is hardly accurate to speak of a
relationship between the department and the person accused in any
relevant sense. Injury to a person accused resulting from an
inadequate assessment of sexual abuse allegations may well be
foreseeable, but a co-existing duty to the person accused would tend
to conflict with the clear statutory duty to act in the interests of
the child."
117. The recognition of a relationship of proximity such as to give rise to a duty of care towards the parents of a child whose welfare is the subject of investigation by the department in the exercise of its statutory powers and duties would be inimical to the proper and effective discharge by the department of its statutory role. Given that the overriding consideration to which the department must pay regard is the welfare of the child, the imposition of a common law duty of care vis a vis the parents would have a tendency to interfere with the due performance by the department of its statutory duties.
118. As the learned trial Judge put it: "To impose a duty of care to be exercised in favour of persons in the position of the plaintiff, thereby placing the department and its officers at risk of being sued, would tend to inhibit the expression of opinions and the carrying out of protective measures, thus impeding the effective administration of the Act".
119. The learned trial Judge was correct in holding, as he did, that the same considerations are relevant to the appellantÕs case against the two doctors. Their function was to assist the department in discharging its duties under the Act. It would be equally inimical to the implementation of the Act and its effectiveness in attaining the objectives spelled out in the Act with respect to the welfare of children if medical practitioners engaged by the department to furnish reports, or give other assistance with respect to the investigation and treatment of children whose welfare has become the concern of the department, were to be exposed to potential liability vis a vis the parents of a child in carrying out the necessary examinations, reporting to the department and in offering any treatment.
120. Of course, if neither Dr Black nor Dr Govan were liable at the suit of the appellant, the appellantÕs case fails against both of the hospitals who employed the doctors.
121. I would, however, add some comments with respect to a particular matter of concern which arises as to the conduct of Dr Black.
122. While in my view no proper basis was established in the evidence upon which it would be right to advance any criticism of the manner in which she performed her examinations of the child, or the terms in which she reported subsequently to the department, at the conclusion of her examination she had a discussion with the mother of the child and Ms Dibden.
123. Ms DibdenÕs evidence was in part:
"Q. And your only real recollection of any interaction between you
and Dr Black is at the end of some hours of waiting when Dr Black
spoke to you and to Mrs Hillman together.
A. ThatÕs right.
Q. Did Dr Black then have a reasonably lengthy discussion with you
and Mrs Hillman about the results of her examination and interviews
that she had conducted.
A. Yes, she did.
Q. I think she communicated to you a view of whether or not
inappropriate sexual behaviour had occurred.
A. Yes, she did.
Q. And did she tell you that, in her view, the childÕs behaviour,
allegations and findings were consistent with a little child having
experienced some form of sexual interference in the pretext of a
game, or words to that effect.
A. Yes, she did. IÕm not sure about the pretext of a game. I donÕt
remember that, but yes, that was the thrust of her view.
Q. Did Dr Black say that anything that indicated she was definitely
certain that sexual abuse had occurred.
A. No, not that I remember, no.
Q. Would it be fair to say that her expression of conclusions, that
is diagnosis, was obviously a preliminary diagnosis by her.
A. Yes.
Q. How would you describe the way in which she framed her
conclusions.
A. Fairly cautious, which was my experience of Dr Black generally,
fairly careful, but indicating there was clearly cause for concern.
Q. I suggest to you that Dr Black told you really no more than, that
as a result of all her findings, that is as to the childÕs
behaviour, the allegations that had been made and the physical
findings that she had made, all she was able to do was to form the
view that these findings were consistent with the child having
experienced some inappropriate sexual interference.
A. She certainly conveyed that. I think the impression I gained was
that she thought it was a probability that it had occurred, which
may be a little stronger.
Q. Did she also indicate that, in her view, the allegations were
consistent with the father having been involved, that is Mr Hillman
having been involved, as the person responsible for the sexual
abuse.
A. Yes."
124. Following that discussion, according to Ms DibdenÕs evidence, the childÕs mother was adamant that she did not want to go home. She said further that although she had appeared distressed from the time when Ms Dibden had earlier that day picked her and the child up from her home to take her to Dr Black, she "became significantly more distressed after Dr Black had talked to her about her views as a result of the investigation". Later she said (786):
"Q. You told his Honour that after the assessment by Dr Black had
been completed and Dr Black had spoken to Mrs Hillman, that she was
extremely upset.
A. Yes, very upset.
Q. Is it the case that Mrs Hillman was quite adamant she was not
going to return to live with her husband.
A. Yes, thatÕs my memory, that she was quite adamant.
Q. You didnÕt urge her not to return to her husband.
A. Not at all, no.
Q. You didnÕt urge her to separate from him.
A. No.
Q. It was entirely her wish and her decision.
A. Yes."
125. I would have two comments to make about that evidence.
126. In the first place, I do not think that it was a proper discharge of her duties that Dr Black should have spoken of her opinion, albeit a tentative or preliminary opinion, in the presence of the mother. Dr Black was engaged by the department and should have confined her communications as to the result of her examination to the department alone. Indeed, the report which she ultimately forwarded to the department was marked "Strictly Confidential". I must say that there seems little point in marking the report to that effect, given that she had discussed her views with the mother.
127. In the ordinary course, Dr BlackÕs opinion would have been only one of the matters to be taken into account by the department in discharging its statutory role. In her report, Dr Black recommended that further investigations be made. Had events not taken their own course, and the mother departed from the matrimonial home with the child immediately following the examination, presumably there would have been further investigations by the department, at the conclusion of which the department would have made a decision as to whether to encourage the mother to remove the child from contact with the appellant, or to exercise its coercive powers to that end.
128. It was not for Dr Black to assume that any tentative or preliminary opinion which she had formed would be borne out by subsequent investigations by the department. She should have recognised that her opinion would be only one matter to be taken into account, and might be overwhelmed by other considerations or evidence of other matters which might be thrown up as the department proceeded with its investigations.
129. In those circumstances, Dr Black should have recognised an obligation to refrain from discussing her views with the childÕs mother, and should have confined her communication of those views to the department. After all, her retainer was by the DCW, not the mother. Just as is the case, for example, with life assurance examinations by medical practitioners, when such a practitioner is engaged by a person other than the patient, it is to that other person and not to the patient that the results of the examination should be communicated. In X (minors) v Bedfordshire County Council (supra), Lord Browne-Wilkinson referred with approval to the analogy drawn by the Court of Appeal with a doctor instructed by an insurance company, and further observed: "He is under a duty not to damage the applicant in the course of the examination: but beyond that his duties are owed to the insurance company and not to the applicant."
130. On the other hand, in this case if the proper procedure had been followed, it would have been open to the department, once it had received Dr BlackÕs opinion, to have communicated it to the childÕs mother. But in doing so, it would have been necessary for the department to consider whether or not it would have been in the interests of the child to follow that course.
131. Despite the denial by Ms Dibden of having influenced the decision of the childÕs mother to take the child away from the matrimonial home, I find it difficult to accept the proposition that the discussion which took place between the childÕs mother, Ms Dibden and Dr Black immediately following the latterÕs examination of the child, did not precipitate a decision by the childÕs mother to break off cohabitation with the appellant and take the child with her.
132. In the events which happened, instead of a proper and full investigation being conducted, in which the father of the child would have had an opportunity to answer the allegations, the situation was overtaken by the predictable consequence of premature disclosure to the mother, with the result that an orderly and proper investigation could no longer be conducted. Most importantly, this sequence of events, for all practical purposes, had the unfortunate consequence of destroying any possibility of maintaining the family unit, an end related to and ranking in importance with the welfare of the child.
133. In those circumstances, if she had in that way acted outside of the retainer which she had been given by the department, Dr Black might not have been entitled to the benefit of a finding that in those circumstances she owed no duty of care to the appellant.
134. There are, however, two countervailing considerations which, in my opinion, make it unnecessary further to pursue that aspect of the matter.
135. In the first place, the discussion with the mother took place in the presence of Ms Dibden. In those circumstances, it is at least arguable that it took place with the blessing of the department. Although I must add that even if it did, I am not persuaded that it is right practice for any such procedure to have been adopted. Dr BlackÕs duty in such circumstances was to suggest to Ms Dibden that any communication of her views, albeit preliminary, as to the child, should be communicated other than in the presence of the mother.
136. Be that as it may, the matter was dealt with during the course of his reasons for judgment by the learned trial Judge in the following manner (51):
"During his final address Mr Kourakis argued that there were various
ways in which loss occurred by reason of the actions of the
defendants. He said that Dr Black communicated her opinion
concerning the allegations to Miss Dibden and Mrs Hillman after the
assessment and did not mention that further investigations were
appropriate. This, it was said, contributed to Mrs HillmanÕs
decision to separate herself and Rebecca from the plaintiff, thus
contributing, in turn, to the plaintiffÕs psychiatric condition.
Mrs Hillman was present in court at an early stage of the trial but
neither party called her as a witness. Without any evidence from her
I find it difficult to attribute the communication of the opinion as
a substantial contribution to her decision to separate or that it
substantially increased the risk of harm which is said to have
eventuated. In view of the previous marital discord, Mrs HillmanÕs
own suspicions of the plaintiff and, in particular, the fact that
Rebecca had made the allegations it is in the realm of speculation
to attribute significant cause to the conversation. It is true, as
Mr Kourakis has pointed out, that Mrs Hillman wished to read Dr
BlackÕs report at a later stage, but because of the manner in which
Dr BlackÕs opinion was there expressed and the fact that the
decision to separate had been made sometime before, it seems not to
have played any role in the chain of events leading to loss."
137. Having regard to those findings by the learned trial Judge and despite my concern at the action taken by Dr Black, acquiesced in by Ms Dibden, I am unable to go so far as to suggest that the decision should be overturned, at least insofar as the action was dismissed against Dr Black.
138. The conclusions which I have so far expressed are sufficient to dispose of the appeal.
139. It is, therefore, strictly unnecessary to have regard to the fact whether, assuming a duty of care to have existed, there was evidence upon which it would be proper to find that there was a breach of the duty. It is sufficient to indicate that in my opinion the learned trial Judge was correct in his finding that even postulating the existence of a duty of care, the evidence would not have justified a finding that there was any breach of that duty.
140. Furthermore, even if the appellant had surmounted the hurdles of establishing the existence of a duty and its breach, there were serious difficulties in the path of the appellant with respect to causation. It is, however, unnecessary to deal further with those aspects of the matter.
141. I would prefer not to make any comment one way or the other as to the validity of the argument advanced by Mr Abbott QC on the hearing of the appeal as to the alleged entitlement of the two doctors to plead that the rule of law conveniently described as "witness immunity", operated to extinguish any cause of action which might otherwise have been capable of being pursued against them. I think it best that whether or not in circumstances such as this medical practitioners are entitled to the benefit of any such principle is best left to a case where the answer would be determinative of the proceedings.
142. I would dismiss the appeal.
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