Sullivan v Moody & Ors No. Scgrg-93-142

SULLIVAN v MOODY & ORS
[2000] SASC 340

Full Court: Doyle CJ, Williams & Wicks JJ

1................ DOYLE CJ..................... A Master of this Court decided that a Statement of Claim filed in this Court was liable to be struck out on the ground that it does not disclose a cause of action. The Master took the view that it was not capable of being amended to disclose a cause of action, and accordingly ordered that the Plaintiff’s action be dismissed.

Before the Master, counsel for the Plaintiff conceded that the decision of this Court in Hillman v Black & Ors (1996-97) 67 SASR 490 (“Hillman”) governed the case pleaded by the Plaintiff. The Plaintiff acknowledged that the decision in Hillman could not be distinguished. Accordingly, while not consenting to the order, the Plaintiff advanced no opposition to the orders ultimately made by the Master. The Plaintiff appears to have accepted that it could not re-plead the claim so as to plead a maintainable cause of action, so long as the decision in Hillman remained good law.
After the Master made his decision, this Court in CLT v Connon & Ors [2000] SASC 223 considered a challenge to the correctness of the decision in Hillman. The Court affirmed the result of that case, although not necessarily all of the reasoning found in the judgments in that case. By this I mean that the Court in Connon held that causes of action, indistinguishable from those advanced in Hillman, could not succeed as a matter of law.
On the hearing of the present appeal Mr Kourakis QC, counsel for the Plaintiff, conceded that the Master had been bound by the decision in Hillman to make the orders that he made. Mr Kourakis accepted that this Court’s later decision in Connon meant that the appeal must fail, unless the Court were to reconsider the correctness of the decision in Connon. He did not ask the Court to reconsider the correctness of Connon.
I understand that the Plaintiff in Connon has sought special leave to appeal from the High Court with a view to challenging the correctness of the decision in Connon. I understand that the present appeal is brought with a view also to challenging the correctness of the decision in Connon.
In these circumstances, there is no need to reconsider the questions of law considered by this Court in Connon. I agree with the submission that the decision in Connon governs the case pleaded by the Plaintiff against the Defendants, subject to a difficulty in relation to the fourth Defendant with which difficulty I will deal shortly. It follows that the appeal must be dismissed, subject to the matter yet to be dealt with.
Before dealing with that matter, it is appropriate to outline very briefly the nature of the claim pleaded by the Plaintiff.
In its essentials, the case pleaded appears to be identical to the case pleaded in Connon. The case is that there was an allegation that a child of the Plaintiff had been sexually abused by the Plaintiff; that the child was questioned and examined by a medical practitioner who investigated the allegation and who formed the opinion that the Plaintiff had sexually abused the child; that this opinion was negligently reached; and that two social workers were also involved in that investigation, who also formed the opinion that the Plaintiff had sexually abused the child; and that the social workers conducted their investigations and formed their opinions negligently. These opinions were then communicated to the wife, to officers of the Department for Community Welfare, to the police and to other Defendants; that officers of the Department for Community Welfare were negligent in dealing with the investigation, and in their response to the allegations; that as a consequence of the negligently formed opinion that sexual abuse had occurred, and the negligently conducted investigations, the Plaintiff was separated from his child and suffered shock, anguish and distress. The claim advanced by the Plaintiff is one in negligence. He alleges as against the doctor, the social workers and the officers of the Department, a breach of a duty of care which he alleges was owed to him, the duty of care relating to the manner in which those persons carried out their investigations, duties and responsibilities. The Plaintiff has also joined as Defendants two hospitals, alleged to be the employers of individual Defendants. The State of South Australia is joined as an employer of certain of the defendants, and as the entity said to be liable for the negligence of officers of the Department for Community Welfare.
I emphasise that this is but a brief summary of a fairly lengthy Statement of Claim, and one which, to my mind, in a number of areas lacks precision. However, as I have already said, in the end the duty of care alleged as against each Defendant appears indistinguishable from the duty alleged in Connon, to be based upon the same circumstances and to encounter the same difficulties as was encountered by the duty of care alleged in Connon.
It is appropriate that I should also identify the Defendants. The first Defendant is the medical practitioner who examined the child, formed the opinion that she had been sexually abused by the Plaintiff, and who communicated that opinion to other Defendants. At the time he was working in the Sexual Assault Referral Centre (“SARC”) which is established in the Queen Elizabeth Hospital, the fifth Defendant.
The second Defendant was at all material times a social worker who worked at the SARC. She also was involved in the investigation of the allegations, and communicated her views to other Defendants.
The third Defendant is a psychiatric social worker employed by the sixth Defendant, the Adelaide Children’s Hospital. She investigated the allegations, interviewed the child and also communicated conclusions to other Defendants.
Each of the hospitals is alleged to be an employer of certain of the Defendants.
The seventh Defendant, the State of South Australia, is sued as the entity responsible for employees of the State who performed various functions or duties for the purposes of the Community Welfare Act (SA) 1972. They are persons employed in the Department for Community Welfare, as it was then known.
As I have said, the Plaintiff alleges negligence as against the Defendants. As to the medical practitioner and social workers, the Plaintiff alleges that they were careless in forming their opinions that the Plaintiff had sexually abused the child. As to the Departmental officers, in broad terms, the allegation is of carelessness in the handling of the investigations, and in dealings with the child in the context of the allegations.
Despite the lack of precision in the Statement of Claim, I am satisfied that the cause of action pleaded against the Defendants already referred to cannot succeed, as a matter of law, if the decision in Connon stands. Mr Kourakis conceded that that was so. But for that concession I would have found it necessary to examine the matter more closely, simply because in a number of respects the Statement of Claim lacks precision. However, as there is no suggestion by the Plaintiff that any relevant distinction can be identified between the causes of action considered in Connon and the causes of action pleaded in the present case, I consider that it is appropriate to proceed on that basis and to decide accordingly.
For those reasons the appeal against the order dismissing the action as against the first, second, third, fifth, sixth and seventh Defendants must be dismissed.
I turn to the position of the fourth Defendant.
The fourth Defendant is alleged to be a legally qualified medical practitioner and psychiatrist. The Plaintiff consulted him for treatment of “anxiety and distress” from which the Plaintiff was suffering as a result of the allegations made against him. Thus, the fourth Defendant became involved only after the other Defendants had become involved, and only after investigations of alleged sexual abuse of the child by the Plaintiff were already in train. There are some obvious problems of causation which will arise, but this is not the occasion to address them.
The Statement of Claim is unclear about how the fourth Defendant became involved. It pleads that the fourth Defendant was consulted by the Plaintiff’s wife and the child while the Plaintiff was a patient of the fourth Defendant. It pleads communications between the fourth Defendant and the third Defendant, officers of the Adelaide Children’s Hospital and officers of the Department of Community Welfare. These communications are said to have related to the Plaintiff, his wife and the child. It is also alleged that the fourth Defendant provided information to “the separate representative” of the child in proceedings in the Family Court between the Plaintiff and the wife.
The Statement of Claim alleges that the fourth Defendant owed a duty of care to the Plaintiff in his treatment of the Plaintiff. Then, in a separate paragraph, it is alleged that:
“The fourth defendant owed the plaintiff a duty of care to exercise reasonable care in the conduct of the investigation of allegations of the child sexual abuse of [the child].”
This pleading is not preceded by any allegations of fact that indicate how the fourth Defendant became involved in the investigations. It may be that the fourth Defendant suspected on reasonable grounds that an offence had been committed against the child, and notified an officer of the Department in discharge of the statutory obligation imposed by the then s 91(1) of the Community Welfare Act (SA) 1972. In any event, one is left to speculate about this.
As to the plea of a duty of care in relation to the treatment of the Plaintiff, Mr Kourakis informed the Court that this could be disregarded. I am prepared to do so, but only because none of the subsequent allegations appear to allege a breach of any duty of care owed to the plaintiff in treating any condition from which the Plaintiff suffered.
There is then a lengthy pleading of breach of duty by the fourth Defendant. The elements appear to be these: the improper communication to officers of the Department and to the third Defendant of information gained when he was treating the plaintiff; the making of a careless diagnosis that the child had been sexually abused; failure to carry out appropriate tests and enquiries for the purpose of that diagnosis; communicating his diagnosis to the wife, to the third Defendant and to officers of the Department of Community Welfare, knowing that that would cause them to take action to deny the Plaintiff access to the child, institute Court proceedings and knowing that it would cause to the Plaintiff “great emotional stress”.
Thus, putting aside the allegation of a duty of care arising out of the treatment of the Plaintiff, there is an allegation that the fourth Defendant improperly communicated information about the Plaintiff, made a negligent diagnosis that the child had been sexually abused by the Plaintiff, and communicated that faulty diagnosis to other Defendants, knowing that that would result in a loss of access to the child, police investigations and harm and distress to the Plaintiff. Subject to the alleged improper communication of information, there is common ground with the pleas considered in Connon. On the other hand, the fourth Defendant was not an employee of the State discharging statutory functions, under or governed by the provisions of the Community Welfare Act (except possibly s 91) nor was he retained by officers of the Department to assist them in performing their statutory functions. He was a private medical practitioner, who somehow became involved in the investigation of alleged sexual abuse. It may be, as I have already mentioned, that any communications made by him were made in discharge of a statutory responsibility to report a reasonable suspicion of sexual abuse, but whether that is so cannot be determined from the pleadings.
The Master’s reasons indicate that he took the view that the decision in Hillman governed the position of the fourth Defendant. Mr Kourakis, in his submissions in reply, adopted the same position, submitting that the fourth Defendant could not be distinguished from other Defendants. He accepted that the Master was bound, in the light of the decisions in Hillman and Connon to dismiss the action against the fourth Defendant.
I have difficulty with that concession. It seems to me that there are a number of relevant differences between the position of the fourth Defendant and that of the Defendants in Connon.
Connon dealt with the existence of a duty of care owed by doctors retained by the Department for Community Welfare to investigate allegations of sexual abuse, and by employees of the Department investigating and responding to such allegations. The reasons of the Court in Connon indicate the significance, in reaching the conclusion that no duty of care was owed, attributed to the provisions of the Community Welfare Act, the fact that the doctors in question were retained by the Department, and to the statutory scheme pursuant to which the officers of the Department acted.
Although the fourth Defendant may have been subject to a statutory duty to notify an officer of the Department for Community Welfare of his suspicion of sexual abuse, in some significant respects his circumstances differ from those of the Defendants in Connon.
First of all, the fourth Defendant was not retained by officers of the Department to investigate allegations of sexual abuse. Nor was he involved in those investigations in the same way as were the doctors in Connon. While the Statement of Claim pleads a duty of care in the conduct of the investigation of allegations of sexual abuse of the child, the fourth Defendant’s role in those investigations remains unclear. It is difficult to know what to make of the allegation that the fourth Defendant was treating the Plaintiff at the time when he was alleged to have been consulted by the wife and the child.
For present purposes it suffices to say that I am not satisfied that the decisions in Hillman or Connon require the conclusion that the Plaintiff has not pleaded a valid cause of action against the fourth Defendant. It may be that it can be established that a valid cause of action is not pleaded but the basis upon which the Master decided the matter does not appear to me to be made out. In saying this I have not overlooked the concession made by Mr Kourakis. But in my view it is unsatisfactory to deal with the appeal on the basis of that concession. It is a concession which does not sit easily with the pleadings. It requires one, in some unspecified way, to treat the pleadings as really alleging that the fourth Defendant was in the same position as the doctors considered in Connon or officers of the Department considered in Connon. As I have said, that concession does not sit easily with the pleadings.
I wish to hear further from the parties in relation to the appeal against the order striking out the proceedings as against the fourth Defendant. The Plaintiff, by his counsel, concedes that the appeal should be dismissed, but if the Court does so it would, in my opinion, be dismissing an action which, on the pleadings, might be maintainable. On the other hand, I recognise the oddity of allowing an appeal which the appellant concedes should be dismissed on the basis of existing authority.
Mr Peek QC, counsel for the fourth Defendant, submitted that the appeal should be dismissed on another basis. By a Notice of Alternative Contention the fourth Defendant contended that the Master’s decision should be upheld on the following ground, not decided by the Master:
“That the investigations, statements and communications made by the fourth [Defendant] complained of by the [Plaintiff] were subject to witness immunity and cannot be made the basis of a civil claim.”
Mr Peek referred to affidavits filed in the action and referred to in the submissions before the Master. The use of those affidavits was not opposed. There was no cross examination on them. No contrary material was advanced by the Plaintiff. Mr Peek submits that the affidavits establish that the plaintiff consulted the fourth Defendant after the allegation of sexual abuse had been made, and after the first, second and third Defendants had formed and communicated their opinions that the Plaintiff had sexually abused the child. He submits that the affidavits further establish that after the Plaintiff had commenced Family Court proceedings relating to access to the child; the fourth Defendant saw the wife and the child at the request of the Appellant; and that the fourth Defendant was asked to consider the allegations against the Plaintiff with a view to providing expert opinion evidence in the Family Court proceedings on the matter. He submits that the affidavits establish that any communications of opinions made by the fourth Defendant were made in that context, and for the purpose of preparing reports to be provided to and evidence to be given in the Family Court in the proceedings between the Plaintiff and his wife.
On the basis of those findings, Mr Peek submits that the fourth Defendant is unable to be sued in respect of the communications and conduct complained of by the Plaintiff. He submits that the immunity from civil action that protects a witness in respect of evidence given by a witness, extends to the communications and conduct of which the Plaintiff complains.
There is no doubt that generally a civil action will not lie against a witness in respect of evidence given by a witness in legal proceedings: see Cabassi v Vila (1940-41) 64 CLR 130 and Cumberland v Clark & Ors (1995-1996) 39 NSWLR 514. Mr Peek referred us to English authority to the effect that the immunity in respect of statements made in the course of judicial proceedings extends to communications made by a person with a view to the person giving evidence in court proceedings about the matters subject of those communications: see X & Ors v Bedfordshire County Council & Ors [1995] 2 AC 633, Taylor & Anor v Director of the Serious Fraud Office [1999] 2 AC 177 and Stanton & Anor v Callaghan & Ors (1998) 4 All ER 961.
In my opinion this submission encounters procedural and substantive obstacles.
The application made to the Master by the fourth Defendant was made under R 46.18, which deals with striking out a pleading said not to disclose a reasonable cause of action. The fourth Defendant did not rely on R 25, which deals with applications for the summary trial or disposition of an action.
The contention advanced by Mr Peek as to witness immunity could be upheld only on the basis of specific and detailed findings of fact made by the Court about the events the subject of the Statement of Claim, and about the circumstances under which the fourth Defendant formed and communicated his opinions, and the relationship between those communications and the proceedings in the Family Court. No such findings were made by the Master. That is the first difficulty.
Although the issue of witness immunity was argued before the Master, and reference was made to the affidavits already referred to by me, the transcript before the Master indicates that it was not made clear that the application on behalf of the fourth Defendant was in fact for a summary disposition of the action, on the basis of findings of fact. Nor was this a case of the sort in which one would readily accede to such an application. The transcript indicates that counsel for the Plaintiff did not appreciate that such an application was being made, nor I suspect did the Master. It is true that at the very end of his reasons the Master said:
“In respect of the claim against the fourth defendant, I consider additionally that the claim cannot be made since the statements complained of were made in reports prepared at the request or direction of the Family Court.”

But, as I have already said, there were no findings of fact made by the Master to provide a basis for that conclusion. It is not clear to me how the Master got to that conclusion.

Thus, the first difficulty is the absence of factual findings. The absence of such findings appears to be due to some confusion before the Master about the nature of the application being made to him.
In my opinion it is impossible to resolve the issues of law raised by Mr Peek’s submission, other than on the basis of detailed and specific findings of fact. There are obvious difficulties in this Court now making those findings for the first time on appeal. Counsel for the Plaintiff opposed that course of action. The case is not one, in any event, in which to my mind an application for a summary trial was appropriate. The submission based on witness immunity raises important and difficult questions of law, not appropriately decided in this manner.
For those reasons, I would not be prepared to dismiss the appeal on the basis of the matter raised by the Notice of Alternative Contention.
In light of what I said earlier in these reasons, that leaves the fourth Defendant in an uncertain position. I understand the wish of all parties to test the position before the High Court. It is not my wish to place obstacles in the path of an efficient disposition of the matter. But, as has often been pointed out before, questions of law of the sort now raised can be disposed of by the High Court only on the basis of clearly pleaded matters and, when findings of fact are necessary, clear and appropriate findings of fact. I do not consider that there is a basis upon which the High Court could properly consider the claimed defence of witness immunity, and as I have already said I consider that in any event the pleading as against the fourth Defendant is sufficiently unclear to raise real doubts whether the cause of action pleaded is governed by the decision of this Court in Connon.

Conclusions

For those reasons I would dismiss the appeal as against each Defendant except the fourth Defendant, and hear further submissions from counsel for the Plaintiff and for the fourth Defendant before reaching a final decision as to the proper course to be followed in relation to the fourth Defendant.

46.............. WILLIAMS J... I agree.

47.............. WICKS J......................... I agree.

[2000] SASC 340

17 October 2000