State of New South Wales v TD by her Tutor The Protective Commissioner of New South Wales

The case of *State of New South Wales v TD by her Tutor The Protective Commissioner of New South Wales* concerned an appeal to the High Court of Australia. The appellant, the State of New South Wales, sought to appeal a decision of the Court of Appeal of the Supreme Court of New South Wales. The dispute arose from proceedings brought by TD, a young woman with severe intellectual and physical disabilities, against the State. TD alleged that she had suffered significant harm as a result of the State's failure to provide her with adequate care and protection from abuse and neglect during her childhood.

The central legal issue before the High Court was whether the Court of Appeal had erred in finding that the State owed a non-delegable duty of care to TD, and consequently, whether the State could be held vicariously liable for the actions of its employees and contractors who had failed to protect TD. This involved considering the nature of the duty owed by the State to children in its care, particularly those with significant vulnerabilities, and the extent to which that duty could be considered non-delegable.

The High Court, in its joint judgment, affirmed the existence of a non-delegable duty of care owed by the State to children in its care. Their Honours reasoned that the State, by assuming responsibility for the care and protection of vulnerable children, undertook a positive obligation to take reasonable steps to prevent harm. This duty was not discharged by delegating the actual provision of care to others; rather, the State retained a direct responsibility to ensure that reasonable care was taken. The Court applied established principles of negligence and the law of non-delegable duties, drawing upon precedent concerning the State's responsibility for the welfare of children in its custody.

The High Court dismissed the appeal, upholding the decision of the Court of Appeal. The State was therefore found to be liable for the harm suffered by TD due to the failures in care and protection provided by its agents.