GLEESON CJ, GAUDRON, McHUGH, HAYNE AND CALLINAN JJ
THOMAS PATRICK SULLIVAN APPELLANT
AND
MARGARET CATHERINE MOODY & ORS RESPONDENTS
Sullivan v Moody [2001] HCA 59 11 October 2001 A21/2001
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of South Australia
Representation:
C J Kourakis QC with H M Heuzenroeder for the appellant (instructed by Margaret J Minney)
A J Besanko QC with D C Lovell for the first to fifth respondents (instructed by Fisher Jeffries)
B M Selway QC Solicitor-General for the State of South Australia with M W Mills for the sixth respondent (instructed by Crown Solicitor for South Australia)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
HIGH COURT OF AUSTRALIA
GLEESON CJ, GAUDRON, McHUGH, HAYNE AND CALLINAN JJ
COLIN LESLIE THOMPSON APPELLANT
AND
AILEEN FORSYTH CONNON & ORS RESPONDENTS
Thompson v Connon 11 October 2001 A23/2001
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of South Australia
Representation:
C J Kourakis QC with E M Boxall for the appellant (instructed by Norman Waterhouse)
A J Besanko QC with D C Lovell for the first to third respondents (instructed by Joanne Tracey)
B M Selway QC Solicitor-General for the State of South Australia with M W Mills for the fourth respondent (instructed by Crown Solicitor for South Australia)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Sullivan v Moody Thompson v Connon
Torts – Negligence – Duty of care – Appellants suspected of sexually abusing their children – Alleged negligence of respondents in investigating and reporting on allegations – Appellants claimed that they suffered shock, distress, psychiatric injury, and consequential personal and financial loss as a result of the accusations – Whether medical practitioners, social workers and departmental officers involved in investigating and reporting upon allegations of child sexual abuse owe a duty of care to suspects.
Torts – Negligence – Duty of care – Proximity – Inapplicability of the Caparo test in Australia.
GLEESON CJ, GAUDRON, McHUGH, HAYNE AND CALLINAN JJ. These two appeals were heard together. In each case the appellant's action for damages, commenced in the Supreme Court of South Australia, was struck out by a Master of the Court on the ground that the Statement of Claim failed to disclose a cause of action. In the case of Thompson, an appeal to the Full Court of the Supreme Court of South Australia was dismissed following fully reasoned judgments by the members of the Full Court (Doyle CJ, Duggan and Gray JJ)[1]. In the later appeal of Sullivan it was accepted, subject to one qualification, that the decision in Thompson meant that the appeal must fail, and it was dismissed[2]. The qualification concerns one defendant in the action, who was regarded as being in a…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Sullivan v Moody
Sign in free to access the full text
Details
AGLC
Sullivan v Moody [2001] HCA 59
Case
[2001] HCA 59
Decision Date
CaseChat Overview and Summary
The appellants, suspected of sexually abusing their children, brought proceedings against medical practitioners and departmental officers involved in the investigation and reporting of these allegations. The appellants claimed they suffered shock, distress, psychiatric injury, and consequential financial loss as a result of the accusations. The case before the High Court of Australia concerned whether these investigating and reporting professionals owed a duty of care to the individuals suspected of abuse.
The central legal issue before the High Court was whether medical practitioners and officers of the Department of Community Welfare, who investigated and reported on allegations of child sexual abuse, owed a duty of care to the individuals suspected of such abuse. This involved determining the existence of a duty of care in circumstances where the performance of statutory duties related to child protection might be perceived as conflicting with a duty to protect a suspect from psychiatric harm.
The High Court, in dismissing the appeals, reasoned that imposing a common law duty of care on investigating authorities towards suspected abusers would be inconsistent with, and tend to discourage, the proper performance of their statutory duties. Drawing on principles established in cases such as *X (Minors) v Bedfordshire County Council*, the Court held that the task of protecting children at risk is extraordinarily delicate. A potential liability in damages to suspects could lead to a more cautious and defensive approach by authorities, potentially delaying necessary decisions and prejudicing the welfare of children. The Court concluded that the necessary proximity for a duty of care did not exist in this context, and that the potential for such a duty to undermine the primary statutory obligation to protect children meant no such duty was owed to the appellants.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
The concession that Hillman v Black is indistinguishable means that the outcome of the present appeals does not turn upon questions as to the standard of persuasion which a defendant ordinarily needs to satisfy in a strike out application[4]. That case went to trial. The events in issue occurred at about the same time as the events in Thompson and Sullivan, the relevant statutory regime was the same, and, except for the identity of the doctors and social workers involved, and other matters of immaterial detail, the same allegations are made. If no duty of care was owed in Hillman v Black, none was owed in these two cases. For practical purposes, these appeals are challenges to the decision in Hillman v Black, and although they are to be decided by reference to the allegations in the pleadings, it is not argued that those allegations are relevantly different from what was alleged, and found, in the earlier case.[4]General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.The facts in Thompson The plaintiff is the father of three young boys. Each of the first and second defendants is a medical practitioner employed at the Sexual Assault Referral Centre at the Queen Elizabeth Hospital, Woodville, South Australia. The third defendant is the hospital. The fourth defendant, the State of South Australia, operates the Department of Community Welfare. The plaintiff is uncertain whether the first two defendants were employed by the third or the fourth defendant. During 1986, the plaintiff's wife, on separate occasions, attended the Sexual Assault Referral Centre with the boys. Doyle CJ noted that it was common ground that the medical practitioners who examined the boys did so at the instigation of a person or persons employed by the Department of Community Welfare. One of the boys was examined by the first defendant. The other boys were examined by the second defendant. Both the first and second defendants concluded, and reported to the Department of Community Welfare, that the boys appeared to have been sexually abused. Further investigations were carried out by officers of the Department of Community Welfare, who also concluded that there had probably been sexual abuse. They, in turn, referred the matter to the police. The police charged the plaintiff with sexual offences. Those charges were ultimately dropped, but, in consequence of the allegations and charges, the plaintiff suffered shock, distress and psychiatric harm, and consequential personal and financial loss. The plaintiff alleges that each of the first and second defendants (the medical practitioners at the Sexual Assault Referral Centre) "owed a duty of care to the plaintiff to carry out her duties and responsibilities and in particular the examination and diagnoses of persons and in particular children suspected of having been sexually abused … with due care, skill, discretion and diligence." (The introduction of the concept of discretion was capable of causing some confusion, but it played no separate role in argument). In a number of respects, those defendants are said to have acted negligently in their examination, diagnosis, and reporting. The third and fourth defendants are claimed to be vicariously liable for the negligence of the medical practitioners.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
HUGH, HAYNE AND CALLINAN JJ
The appellants also sought to confine the extent of the duty for which they contended, by excluding expressions of opinions and communications about the precautions necessary to protect children. The duty claimed was limited to the acts of undertaking medical examinations and associated interviews, making and communicating diagnoses, and, in the case of the Department, conducting further review and investigations. This unconvincing distinction appears to have been made in an attempt to avoid the incongruity of a proposition that, in deciding what precautions should be taken to protect a child from apprehended sexual abuse, decision-makers owe a duty to take care to protect a suspected abuser from emotional distress and other forms of harm.The decision of the Full Court in Hillman v Black Matheson, Prior and Perry JJ all concluded that, on the facts found by the trial judge which, so far as they were material to the issue of duty of care, were not in dispute, and were as alleged by the plaintiff, the defendants owed no relevant duty of care to the plaintiff. The case was decided at a time when proximity was commonly treated in Australian courts as what Deane J described in Jaensch v Coffey[5] 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". More will be said of that later. Matheson J reached the conclusion "that the necessary relationship of proximity was not proved"[6]. [5](1984) 155 CLR 549 at 584.[6](1996) 67 SASR 490 at 501. As to the Department, Matheson J was strongly influenced by the decision of the House of Lords in X (Minors) v Bedfordshire County Council[7] and, in particular, by what Lord Browne-Wilkinson said about one of the cases which formed part of that litigation ("the Newham case") where the facts bore a striking similarity to the facts in Hillman. His Lordship said that 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"[8]. He also said[9]:"… the task of the local authority and its servants in dealing with children at risk is extraordinarily delicate. Legislation requires the local authority to have regard not only to the physical wellbeing of the child but also to the advantages of not disrupting the child's family environment … if a liability in damages were to be imposed, it might well be that local authorities would adopt a more cautious and defensive approach to their duties. … If the authority is to be made liable in damages for a negligent decision … there would be a substantial temptation to postpone making such a decision until further inquiries have been made in the hope of getting more concrete facts. Not only would the child in fact being abused be prejudiced by such delay: the increased workload inherent in making such investigations would reduce the time available to deal with other cases and other children."[7][1995] 2 AC 633.[8][1995] 2 AC 633 at 739.[9][1995] 2 AC 633 at 750.