Sullivan v Moody & Ors, Thompson v Connon

[2001] HCATrans 277

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A21 of 2001

B e t w e e n -

THOMAS PATRICK SULLIVAN

Appellant

and

MARGARET CATHERINE MOODY

First Respondent

LINDY LLOYD

Second Respondent

KAREN RACHEL JAMES

Third Respondent

QUEEN ELIZABETH HOSPITAL

Fourth Respondent

ADELAIDE CHILDREN’S HOSPITAL

Fifth Respondent

STATE OF SOUTH AUSTRALIA

Sixth Respondent

Office of the Registry
  Adelaide  No A23 of 2001

B e t w e e n -

COLIN LESLIE THOMPSON

Appellant

and

AILEEN FORSYTH CONNON

First Respondent

MARGARET CATHERINE MOODY

Second Respondent

QUEEN ELIZABETH HOSPITAL

Third Respondent

STATE OF SOUTH AUSTRALIA

Fourth Respondent

GLEESON CJ
GAUDRON J
McHUGH J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 15 AUGUST 2001 AT 10.14 AM

(Continued from 14/8/01)

Copyright in the High Court of Australia

GLEESON CJ:   Yes, Mr Kourakis.

MR KOURAKIS:   If the Court pleases, can I just make one submission about the question of indeterminacy and the principle that might limit the class before going to the pleadings in both matters.  Your Honour Justice McHugh correctly, in my respectful submission, pointed to the wrong way in which the duty of care was framed, that is focusing on the duty and the conduct.  In the end though, looking at the pleadings as a whole, and I will come to them in a moment, the plaintiff’s claim was that a duty of care was owed to the plaintiff in each case to prevent psychiatric injury in these particular circumstances.

Accordingly, in my submission, those rules which limit the class of plaintiffs to whom such a duty for that type of harm might be owed can also apply in this case to restrict the potential class, particularly that rule which is to the effect that the defendant can only foresee those plaintiffs who have normal psychiatric or ordinary psychiatric fortitude. 

If that is applied to the facts of this case, then a line can be drawn around the family unit or persons who reside with the child because it can be said that it is not foreseeable that persons outside that unit, that is, persons of ordinary fortitude, would suffer an injury of this type, that is, the psychiatric injury.

If the Court pleases, I accept, of course, that as with any line, it in some circumstances might be subject to the criticism of arbitrariness.  A comparison of the case immediately within and immediately without any line will show any such arbitrariness in stark relief but, at least in this case, accepted notions of family unit and the bonds of affection between those members give it some reasonableness that can be justified.

Of course, furthermore, in cases such as this there will be some knowledge often and, indeed, in one of these cases it is specifically pleaded that the suspected abuser is a person within that unit.  Just as the fact that in Perre v Apand, for example, the disclosure of the memorandum which made specific reference to the possible loss resulting from the Western Australia legislation was a factor upon which the duty was attached and which limited the class, so too the circumstances in which such a case presents to the Department or to the doctors will go to limiting the class in that way.

If the Court pleases, can I go firstly to the pleadings in the case of Sullivan.  I start at page 7 of the appeal book.  I have taken your Honours to some of the earlier pleadings identifying the parties and their general functions.  On page 7 at paragraph 13 I just mention, without reading it, that paragraph which pleaded the introduction to the doctor of the case generally with the allegation of possible sexual abuse by the plaintiff.  If I can then take your Honours to paragraph 16, the pleading is that the first defendant, Doctor Moody, diagnosed not just sexual abuse, although the pleading is ineloquent.  It goes on, though:

and in particular sexual abuse by the plaintiff.

Then paragraphs 17 and 18 plead communication of that particular diagnosis to the Department of Community Welfare and the wife respectively.  Your Honours, on the next page something of the consequences ‑ ‑ ‑

GLEESON CJ:   Just before you go any further, paragraphs 17 and 18 identify, do they, the conduct that caused the harm?

MR KOURAKIS:   Yes.

GLEESON CJ:   In other words, if the doctor had kept this information to herself, nobody would have suffered any harm?

MR KOURAKIS:   Yes, on the assumption that there was, in fact - and this is the assumption in the pleadings - no abuse or no reason to suspect it.

GLEESON CJ:   Thank you.

MR KOURAKIS:   Your Honour, in further answer, in so far as the negligence which is later alleged relates to investigations before that communication, in my submission, there is no difficulty in relying on that negligence in pleading breach of the duty, although it precedes it, in that the communication in the end should not have been made if it was preceded and based on negligent investigation.

GAUDRON J:   If there is a cause of action here – let me just use that term for the moment – it has to encompass the communication, does it not?

MR KOURAKIS:   Yes.

GAUDRON J:   Yes.  So, it cannot be rested simply on negligent diagnosis.

MR KOURAKIS:   That is so, because it would not have had any effect, and it is in that area that, as your Honours Justice Gaudron and Justice McHugh put to me yesterday, it has an overlap with the law of defamation, but the law of negligence has developed in a way, not just in the area that we contend for, but in many areas which have infringed on other narrower classes.  But, in my submission, there is no, with respect, difficulty about that if it is accepted that each area of the law protects a different interest.  In this case, the interest is against psychiatric injury, whereas defamation, of course, protects reputation.

Similarly, although it is the case, and it has been observed in this Court before, that the approach of proceeding incrementally has necessarily the effect that the law of negligence expands, that may simply reflect the fact that as social and economic relationships develop, new categories do arise in which it is appropriate, by that incremental approach, to import the duty of care and, of course, in any event, that very approach of looking at cases analogically is informed by the underlying policy context and, for that reason, in my submission, the imperial march is not necessarily one that causes disadvantage to the community.  Your Honours, page 8 refers to the consequences of the communication.  In paragraph 22 ‑ ‑ ‑

GAUDRON J:   Could I just take you back in your pleadings.  Will it make any difference in your submissions in your case if paragraph 16 ended that the child “had suffered sexual abuse” and did not contain the other words?

MR KOURAKIS:   Your Honour, in my submission, it is stronger because it contains the other words but, in my submission, they are not necessary if the context is known to the Department and the doctors that a finding of abuse in itself will affect another member of the family, in particular, if you like, the object of the investigation.  Your Honours will see that it will be necessary for me to make that submission when I come to the pleadings in Thompson because that is not specifically pleaded there.

Your Honours, on page 8 at about lines 20 to 22 it is pleaded that, if you like, the plaintiff was told of the diagnosis, although the plea is a little indirect, through the interview “in relation to allegations” of “sexual abuse” and then the next sentence, after the matters pleaded above, the plaintiff’s wife and child left the home.  It is pleaded from the bottom of page 8 through to page 9 that the plaintiff lost access to his child and there were certain Family Court proceedings.  Towards the foot of page 9 in paragraphs 24 to 26 the referral ‑ ‑ ‑

GLEESON CJ:   Could I interrupt you to ask a question about the facts of these cases, Mr Kourakis.  Was it part of the background to these investigations that if a positive diagnosis was made, they either would, or would be likely to, result in court proceedings in which the doctors would be witnesses?

MR KOURAKIS:   Yes. 

GLEESON CJ:   Well, we will come to questions of immunity perhaps later.

MR KOURAKIS:   Yes, if the Court pleases.  If I can just address several comments to them now, in a sense they are not determinative because of the pleadings of communication quite separately to the plaintiff’s wife and the direct effect that that then had in terms of affecting access.

GLEESON CJ:   Am I right in thinking that part of the background of this was that these doctors were qualifying themselves to be witnesses?

MR KOURAKIS:   They were qualifying themselves to be able to give expert opinions on the question and, as a result of that, there was an objective likelihood that they would give evidence and, indeed, in these cases they did, or at least their reports were used for that purpose.  Your Honours, the question of witness immunity was raised by way of notice of alternative contention in Hillman and was decided by one member of the court, Justice Matheson, adversely to the plaintiff Hillman.

GLEESON CJ:   I do not use that word “immunity” as a term of art necessarily in this context.  Sometimes it might more accurately be regarded as an absence of a duty of care.  But part of the factual background is that the task on which these medical practitioners were engaged, from one point of view, is that of qualifying themselves to be witnesses.

MR KOURAKIS:   Yes, and if your Honour pleases, I accept that it can be seen not as a separate defence, as it were, in cases of this sort but as part of the general policy in considering whether to extend the duty of care.  That has not been specifically raised or discussed below in these cases.  If there is to be a denial of a duty based on that concept, then, in my submission, there is no reason to extend it to communications to the wife directly and outside the provision of reports in the process that would lead to their use in court and, in any event, witness immunity ought to be limited so that it does not extend to negligence which arises from a process such as investigation before the actual provision of the report.

That is, clearly it extends to what is said in court, clearly it extends to the proofs of witnesses in preparation for what they say in court but, when one is dealing with potential evidence by experts, the witness immunity ought not to extend to the scientific conduct of the investigations themselves upon which they are later to give evidence.  The House of Lords in a case of Darker v Chief Constable of The West Midlands Police [2001] AC 435. I think it is on the learned Solicitor‑General’s list of authorities.

But in that case, the House of Lords declined to strike out a claim against the chief constable based on forensic examinations conducted for the purposes of a court hearing.  The claim was based both on deliberate fabrication and also in negligence in the forensic scientific investigation.  The House of Lords declined to strike out those parts of the claims based on negligence on the basis of witness immunity, either as the distinct offence or as part of the general consideration with proximity, drawing a line or a distinction of the type that I contend for in these cases.

GLEESON CJ:   I have not checked whether it is actually alleged in these pleadings, but these were salaried medical officers, were they?

MR KOURAKIS:   Yes.  It is alleged that they were employed either by the hospitals, who were other parties, or the State directly.

GLEESON CJ:   There is no suggestion that they were being paid a fee for their services by the patients or anybody on behalf of the patients?

MR KOURAKIS:   No, that is right.

HAYNE J:   The unstated premise for the debate that has just been had is that some investigative process had been commenced, in effect, in exercise of State power, is that right?

MR KOURAKIS:   No, there was provision in the Act then to conduct investigations, including taking the child to a medical practitioner if there was not a parent prepared to do so.  But, apart from advice and encouragement which any person can give, there was no exercise of State power in taking the child to the doctors to be examined or, indeed, in the other assistance that the Department gave to allow the wife to move out of the home.

HAYNE J:   In what sense then was this a case in which doctors were qualifying themselves to give evidence?  True it is later they gave evidence, or their reports were used in evidence, but what was it that at the point of examination would identify the task upon which they were then engaged as one of preparing themselves either for anticipated, or for the possibility of, future legal proceedings?

MR KOURAKIS:   Nothing more than the mere foreseeability of it as a possibility and, in my submission, that is too far removed from at least the accepted position at least in this country, that it extends to the provision of proofs.  For that reason, in my submission, it does not bear on the question in this case.

GLEESON CJ:   Was there any suggestion that they were to treat the child?  Were they to administer medical treatment or advice?

MR KOURAKIS:   The initial doctors, no, and the pleading is that they referred, for example, in the Sullivan Case, the child, the respondent James, who is described as a psychiatric social worker, for the purposes of treatment.  There is a separate claim against James and I will come to that in a moment.

HAYNE J:   In the matter of Sullivan at paragraph 24, there is reference to a referral on.

MR KOURAKIS:   Yes.

HAYNE J:   Well, what is happening?  Is this analogous or not analogous to the patient consulting the GP who says, “On what I see it looks as though you have.  Please to go on and see specialist X”, or is something else happening here?

MR KOURAKIS:   In my submission, it is analogous to that, but there is something else, of course, that it carries with it the risk of the harm claimed to the plaintiff.

McHUGH J:   Could I understand what your case is?  I can understand a claim in which you are saying your client had suffered what used to be called a nervous shock.  It is well established that one can recover in family situations from negligent communications.  For instance, in New South Wales in the late 1930s, in a case called Barnes v The Commonwealth, it was held that falsely notifying a wife that her husband had died and which caused nervous shock to the wife was actionable.  The New Zealand courts have held that the unauthorised disclosure of confidential information resulting in nervous shock could found a cause of action.  But that does not seem to be the way you have pleaded your case here.  Your case seems to be so intent on pointing out the deficiencies of the examination that maybe you have lost sight of what your true cause of action is.

MR KOURAKIS:   If your Honour pleases, the emphasis is on that because it is on the basis of that that it is said that the communication was negligent.  But, with respect, your Honour is right, and it is for that reason that I pointed out the pleading, at least of some communication to the husband through the interview on page 8 in paragraph 22, and the eventual pleading is, very broadly, that as a result of the matters pleaded the plaintiff suffered shock as well as then the consequences of that.  The pleading as to shock is in paragraph 47.

McHUGH J:   Is the case one that you were saying that the lack of care on the part of the doctors gave rise to a reasonably foreseeable risk of the plaintiff suffering nervous shock?

MR KOURAKIS:   Yes, although it was not called that only; it was referred to as psychiatric injury generally, but there is a specific pleading as to shock.  Your Honour, can I also say that there is a further difference between those cases of direct communication in that, quite apart from the communication pleaded at least through the police, there was a communication by action, if you like, in terms of taking the wife and the child moving away from the home which, combined with the allegation through the police contact, is all part of the communication of a negligent finding which has led to shock in those ways and psychiatric injury in those ways.

GLEESON CJ:   I note that paragraphs 3 and 3A of the statement of claim in relation to the questions that you were asked by Justice Hayne, there is reference in the pleadings to what is described as the role of the Sexual Assault Referral Centre, but I am not clear that that role emerges very plainly from the pleading.

MR KOURAKIS:   No, it does not, but certainly, your Honour, that pleading is to the effect that they were almost the exclusive initial investigators as far as the Department was concerned, and I say and I accept that as a result of that ‑ ‑ ‑

HAYNE J:   What does that mean?  You say “as far as the Department was concerned”.  What is the Department doing?  Is the Department acting under some sort of statutory power to do something?  You cannot just slide over these things.

MR KOURAKIS:   No, your Honour.  Can I attempt to be more precise about it.  For a start, the Department is a natural repository of complaints because of section 91 which has been referred to, which places an obligation on certain persons and allows anyone else to report the matter to the Department.  Now, the Department can then take certain statutory coercive actions, and when I put the submission that they did not act under the Act, I meant in that way, but the Department also, under the Act, is a department which employs persons, including social workers, and which has financial resources and it makes them available to people to give advice and to assist.

That certainly happened in this case.  Social workers accompanied the mother.  They made arrangements for alternative accommodation.  They made suggestions about going to this place, the Sexual Assault Referral Centre.  In that broad sense, actions were taken under the Act but they were not in the exercise of particular statutory powers which the Department or its workers could take.

HAYNE J:   One view of what occurred is that a parent consulted a government department about an issue concerning the welfare of a child; the Department suggested - did not require - attendance on an identified group of doctors, which the parent then did.

MR KOURAKIS:   Yes.

HAYNE J:   Now, if that is the way in which it is put, if that is the way in which it is to be looked at, we are not concerned with coercive or other exercise of State power.  We are concerned with a parent taking a child to a doctor.  True it is, a doctor employed by a government entity, but that is all.

MR KOURAKIS:   Yes.  The fact that the social worker was an employee of the government and that the government then acted on the opinions that were communicated to it has a certain other relevance which is pleaded later in terms of what it is said the Department should have realised about the competency of the reports its workers acted on, but I will come to that in a moment.  Your Honours, in paragraph 26, it is pleaded that the third defendant, and this is the psychiatric social worker, James, made a finding that the child had been abused and, again, that that finding was communicated to both the wife and the State.

On page 10 there are pleadings with respect to the then fourth defendant, which do not arise in this appeal.  Paragraph 28 commences particular pleadings against the first defendant who had conducted the initial examination at SARC, the doctor defendant.  Firstly, I have already accepted the point your Honour Justice McHugh put to me yesterday as to the way in which 28A is expressed.  It ought to have been expressed in terms of the duty to avoid psychiatric injury.

Paragraph 29 pleads the particulars of negligence in the examination which it proved would show that the diagnosis was negligently formed and then communicated.  Your Honours will see from the first few paragraphs at the foot of page 10 that those matters go to interviewing adequacy of the interview.  On page 11, the first part of that deals largely with those ‑ ‑ ‑

GLEESON CJ:   May I ask you what has happened to the fourth defendant in these proceedings?

MR KOURAKIS:   The appeal against the dismissal of the claims related to him were successful and the matter has been remitted to the trial court for directions.

GLEESON CJ:   So we are not concerned with the fourth defendant?

MR KOURAKIS:   No.

GLEESON CJ:   Thank you.  That explains the difference between the number of defendants and the number of respondents.

MR KOURAKIS:   Yes, which has caused some confusion.  Your Honours, in subparagraph (j) on page 11, a different form of negligence is alleged.  That is simply a misdiagnosis as a matter of physiology.  Over the page on page 12 at subparagraph (q), it goes to the negligent formation of diagnosis following what was claimed to be negligent investigations.  Subparagraph (x) alleges the negligence in the reporting of the finding of sexual abuse which is there described as:

Reported her finding of sexual abuse by the plaintiff immediately to the wife and the wife’s mother and to the seventh defendant -

Subparagraph (z) on page 13 alleges a similar communication and in circumstances, it goes on to allege, where the defendant ought to have known that the plaintiff would be denied access to his child and that it would affect the circumstances of the break‑up of the family unit.

Your Honours, from the foot of page 14, claims are made against the second defendant, Lloyd, who was a social worker who was present and assisted with the interview of the child at the Sexual Assault Referral Centre.  Paragraph 32 alleges particulars of her negligence in investigation which made the eventual communications negligent.  But subparagraph (g) pleads the communication to the wife and then an alternative communication not as direct to the effect that the child had been the subject of sexual abuse by the plaintiff.  Over the page at page 16, from paragraph 34, the allegations of negligence against the social worker, James, are made.

GAUDRON J:   Now, I had some difficulty with the social worker, James.  The matter comes to her by referral from a doctor and another social worker with a diagnosis already made.

MR KOURAKIS:   Yes.

GAUDRON J:   Now, how does this head of negligence – with a diagnosis already made and the communication already made.  What is the duty of care here and where is the damage?

MR KOURAKIS:   Your Honour, my submission, firstly, is this to the latter point, that that is a question of causation and damage, the question being whether ‑ ‑ ‑

GAUDRON J:   No, she is a defendant.

MR KOURAKIS:   Yes.  If the damage by way of shock and psychiatric injury has already been suffered by the time that the child is referred to the third defendant and there is no further shocking revelation as a consequence of the third defendant’s negligence, then the plaintiff would fail on causation.  But, in my submission, that would be a matter to be considered in terms of the strength of the case overall or perhaps the subject of a separate strike-out, but not this one.

As to the first point which your Honour raised, it goes to this, that it would be necessary for the plaintiff to show that the psychiatric social worker should have realised that the initial diagnosis was incompetently made - and that has certain obvious difficulties as to proof - but if it is the case that that can be shown, then, in my submission, it is from that that the duty would arise.

GAUDRON J:   Now, where is that pleaded?

MR KOURAKIS:   Your Honour, it is pleaded, I think, only indirectly in subparagraph (a) in that implicit in the allegation that she embarked upon therapy before any proper diagnosis of abuse was made is the allegation that she should have appreciated that that diagnosis made by the first doctor was not yet a proper one and that, if you like, inference is perhaps supported by subparagraph (e) which claims that even after the referral to her, James ought to have carried out further validation procedures in relation to what is described as a “preliminary assessment of sexual abuse” by ‑ ‑ ‑

GAUDRON J:   What is the foreseeability of harm that is alleged with respect to the third defendant?

MR KOURAKIS:   Your Honour, that appears in (l) and (m) in terms of the breach, in that it is said that the communication of sexual abuse, for example in (m), was made in circumstances that James knew that the child’s mother would take the position to deny the plaintiff an opportunity to have access, “adopt a hostile . . . attitude”, over the page  on 18, “treat the plaintiff with hostility”, “adopt an inflexible attitude” and so on.

GAUDRON J:   Now, I think you have to analyse what is there pleaded with a little more care, Mr Kourakis.  The duty is asserted to arise again because it was foreseeable what, that her treatment of the child – this is treating?

MR KOURAKIS:   Yes, it was foreseeable ‑ ‑ ‑

GAUDRON J:   It is not diagnosis, her treatment is really what you have, unless you can put it in terms of a failure to make an independent diagnosis, which you say is implicit, but I do not think it is.

MR KOURAKIS:   If your Honour pleases, I accept that that analysis is necessary and that it is necessary to show that, but it is pleaded, for example, in (l) ‑ ‑ ‑

GAUDRON J:   I have not been able to come to grips with the somewhat diffuse manner of this pleading, but is it said that the third defendant was a joint tortfeasor or a separate tortfeasor?

MR KOURAKIS:   She is a separate tortfeasor in that her acts occur after and are not done jointly with the ‑ ‑ ‑

GAUDRON J:   And her acts caused what?

MR KOURAKIS:   Further psychiatric injury.

GAUDRON J:   Further psychiatric injury, I see.

GLEESON CJ:   All this psychiatric injury resulting from the way people react when given information to the discredit of your client?

MR KOURAKIS:   Yes, and if your Honour ‑ ‑ ‑

GLEESON CJ:   So there might be a general duty, might there, to take reasonable care not to say anything to a wife that could cause her to assume an attitude of hostility towards her husband?

MR KOURAKIS:   Your Honour, I accept the argument as to indirectness which your Honour puts to me which shows that there is not direct control on what will happen, and that is a reason against the imposition of a duty, but, in my submission, there is a very real way in which communication of a negligent diagnosis in these circumstances has a great capacity to influence, even though there is not complete control.

GLEESON CJ:   But the psychiatric injury your client has suffered, whichever way you look at it, is injury that resulted from the way people reacted to being told that he was a child abuser.

MR KOURAKIS:   Yes, as well as the direct communication of that diagnosis through the charges that were put to him and the like.  So we rely on both heads.  But as to the second one, what your Honour puts to me, I accept it has that element of indirectness.  It is simply my submission that, nonetheless, the power to influence is significant.

GLEESON CJ:   The wife says, “I’m off and I’m taking the children with me”, the police say, “You’re under arrest”.  But they are all responding to what you say is misinformation.

MR KOURAKIS:   Yes, and the communication of a negligently formed diagnosis.

In further answer to your Honour Justice Gaudron’s remarks about the duty of the defendant, James, in paragraph (l) the reporting of the diagnosis is claimed as a breach of the duty, although I accept that it does not appear to be separately pleaded that James had formed that diagnosis.

GAUDRON J:   Let me get this straight again.  We are talking about a psychiatric social worker.  Yesterday when we started this discussion it emerged that one aspect of the relationship upon which you relied was that the doctor at least – and it now transpires there is only one doctor, it seems, in this – held herself out as competent to diagnose, and one can perhaps understand that from a doctor.  What is the basis upon which you get a similar notion with respect to a psychiatric social worker?  What was the other one?  It was a social worker of ‑ ‑ ‑

MR KOURAKIS:   Yes, just a social worker with Dr Moody in the first interview, but ‑ ‑ ‑

GAUDRON J:   You see, I might understand something if it were alleged that these were psychologists who held themselves out to treat and what have you, but what is a social worker holding herself out as competent to do?

MR KOURAKIS:   In my respectful submission, your Honour’s observations certainly go to the question of breach and point out difficulties in terms of showing ‑ ‑ ‑

GAUDRON J:   No, they do not go to the question of breach.  They go to the question of any basis for finding a relationship of a kind that might carry with it a duty of care.

MR KOURAKIS:   Your Honour, in those circumstances, other than the fact that the social worker, as simply a psychiatric social worker, took it upon herself to make and report a diagnosis, that is, a diagnosis of sexual abuse.

GAUDRON J:   That is not what you plead in relation to the third defendant, is it?

MR KOURAKIS:   Your Honour, there are no other subparagraphs that I can take you to to further that submission.

GAUDRON J:   I mean, when we get to this point, it becomes a little surreal, does it not, the way you are pleading this?  You are pleading that the social worker – but you admit you only do it by implication – had a duty of care to make her own diagnosis?

MR KOURAKIS:   What we plead is that she did and that in so far as a psychiatric social worker she was not competent to do so, that rather is a point that we use on our arguments on breach.  But the duty arises when she holds herself out to be able to make the diagnosis by making it and reporting it.

GAUDRON J:   Does she?  Where do you plead that?

MR KOURAKIS:   Your Honour, I cannot put any further submission as to that other than the paragraphs I have taken ‑ ‑ ‑

GAUDRON J:   No, this is a pleadings case.

MR KOURAKIS:   Yes.

GAUDRON J:   A pleadings case, pure and simple.  Where do you plead it?

MR KOURAKIS:   Your Honour, in my submission, it is pleaded in paragraph (l), although, as your Honour has noted, I make the admission that it is only indirectly ‑ ‑ ‑

GAUDRON J:   You see, in 33 you said she had:

a duty of care to the plaintiff to carry out her duties and responsibilities and in particular her psychological and/or psychiatric and/or therapeutic diagnosis –

but where do you say she held herself out?

MR KOURAKIS:   Your Honour, there is no separate plea as there is with respect to the doctor at the Sexual Assault Referral Centre; but in paragraph 34(f) it is pleaded that James:

failed to carry out a full and proper psychological and/or psychiatric assessment  ‑ ‑ ‑

GAUDRON J:   This is a social worker we are talking about.

MR KOURAKIS:   Your Honour, it may well be that it is shown that she did not make the assessment – well, if I could just finish, she failed to carry out those assessments “before making her diagnosis of sexual abuse”.  Now, if it is proved, as it is pleaded, that she did make a diagnosis of sexual abuse and that James then communicated it, then, although we have no antecedent holding out, the making of the diagnosis and the communicating is how I contend that James has held herself out.

GLEESON CJ:   What exactly does the word “diagnosis” mean in this context?  If my wife says to me, “I think that you’ve got a sore throat”, that is an expression of her opinion or judgment, but she brings no medical expertise to it, although she may bring a good deal of experience.  Do you call that a diagnosis?

MR KOURAKIS:   No, the way it is used in the pleading is a diagnosis by people who purport to be able to make it on the basis of some science or expertise.

GLEESON CJ:   There is an element of holding out involved in your use of the expression “diagnosis”, is there?

MR KOURAKIS:   Yes, there are express pleas as to that with respect to the Sexual Assault Referral Centre.  I concede ‑ ‑ ‑

GLEESON CJ:   We have already noticed that you use the word “diagnosis” in connection with identifying the culprit.

MR KOURAKIS:   Yes.

GLEESON CJ:   So we know how the pleader uses the word and it is not very precise.

MR KOURAKIS:   Or it might well be that that is the way in which those persons who held themselves out to have that expertise used it, that is, they purported to have the expertise to make a diagnosis, including one as to the identity.

GLEESON CJ:   That is not what the word “diagnosis” means.

MR KOURAKIS:   But that may be the very nature of the claim in breach, the very basis of the claim in negligence, against those who purported to be able to use the word “diagnosis” and give the accusation that the abuse was committed by a particular person, that sort of apparent scientific validity.

The particular pleadings against the State appear at page 22, from paragraph 42A and then 43(a), the negligence alleged there is that the Department acted on the reports of the earlier defendants when they knew or ought to have known that they were negligently made ‑ ‑ ‑

GAUDRON J:   Now, can we go back to 42A. I know you have not pleaded it, but what is it that you say brings the duty of care into existence between the State and the plaintiff?

MR KOURAKIS:   The very process of embarking on giving the plaintiff’s wife the assistance in terms of referring her to SARC, then on the basis of information or reports obtained from them, assisting the plaintiff’s wife to move out from home and take her children, and the claim is that in that process, in embarking upon that conduct and giving that assistance, there is a duty owed to prevent psychiatric injury to the plaintiff.  It arises, firstly, from the foreseeability of psychiatric injury in those circumstances and is reinforced by their participation in the process of examination by the doctor defendants and SARC in the absence of the plaintiff ‑ ‑ ‑

GAUDRON J:   What do you mean, “their participation”?

MR KOURAKIS:   Their suggestion that the mother take the child, their ‑ ‑ ‑

GAUDRON J:   Now, somewhere at the front that is pleaded, is it, that they referred the matter?

MR KOURAKIS:   Yes, there was the very general pleading about routinely referring, but if I can take your Honour to page 7, in paragraph 11D, there is a reference to attending on another doctor at the premises of the sixth defendant which at that time was, I think, the Adelaide Children’s Hospital.  Sorry, if I can start at 11B, there is contact with the Department of Community Welfare in March or April 1986, a referral to the sixth defendant, which should be read as a referral to the Adelaide Children’s Hospital, and then a referral by that person to the Sexual Assault Referral Centre.  So the referral in those circumstances is somewhat indirect, in my submission, nonetheless, from the Department.  After the assessment and diagnosis at the Sexual Assault Referral Centre, there are the pleadings I have already taken the Court to of communication to the Department of Community Welfare and then the assistance in fact given by that Department to the wife.

GAUDRON J:   Their breach of duty, I take it, again, just to confirm it, is acting on the reported diagnosis, knowing when they knew or ought to have known that it was a faulty diagnosis?

MR KOURAKIS:   Yes, and the only addition to that, really, if your Honour pleases, are very general pleadings that there ought to have been protocols in place to ensure the provision of competent reports or non‑negligent reports and general pleadings of that nature which your Honours can see from pages 22 to 23.

GAUDRON J:   What has happened to the Adelaide Children’s Hospital?

MR KOURAKIS:   It is still there, your Honour, but that is just again that numbering change in terms of the numbers of the respondents and the pleading against it.

GAUDRON J:   What negligence is alleged against them?

MR KOURAKIS:   Only vicarious liability, and the same is the case with the Queen Elizabeth Hospital.

GAUDRON J:   For the first, second and third?

MR KOURAKIS:   The first two.  So the Queen Elizabeth Hospital for Dr Moody and the social worker at the Sexual Assault Referral Centre who first examined the child and the Adelaide Children’s Hospital vicariously liable for Karen James.

Then the only other matter that I wish to take your Honours to in the pleadings was the pleading starting at paragraph 47, to which I have already referred, as to the nature loss which the plaintiff pleads.  His Honour the Chief Justice below made the point that paragraph 47 ‑ ‑ ‑

GAUDRON J:   Can I go back – I am sorry, I am just not understanding this at all.  I am sorry, it is only purely vicarious liability, is it, yes, as their employers?

MR KOURAKIS:   Yes, that is the only plea that is made.

GAUDRON J:   Now, in essence, the damage you say for which the State is responsible though is a separate head of damage.  It is really one exacerbating the psychological harm, is it, and it is not purely vicarious?

MR KOURAKIS:   No, there is an element of possible State vicarious liability if it rather than the hospital employed the first two respondents, but no, it is a direct liability for psychiatric injury arising out of the communication of what was called a “diagnosis of sexual abuse” by the plaintiff and that which surrounds it, including the wife leaving in sudden circumstances, such that ‑ ‑ ‑

GAUDRON J:   But the wife has already been told?

MR KOURAKIS:   The wife has already been told, but then the Department of Community Welfare assists on the assumption that the diagnosis is right with what would otherwise be very appropriate actions in terms of the wife being taken elsewhere.  Whether it was to a home or to a shelter, I am not sure.

GAUDRON J:   So it is an exacerbation of the injury, the psychological harm, I suppose?

MR KOURAKIS:   Certainly that and, in my submission, more in that they, by immediately acting on the negligent diagnosis communicated to them, assuming it is shown that they ought to have realised it instantaneously, it is not just exacerbation, but participating in the very steps which lead to the shock.

Your Honours, can I go to the pleadings in Thompson which have at least the benefit of being briefer and to page 3 of the appeal book.

GLEESON CJ:   What in summary form would you say is the difference, if any, between the case of Thompson and the case of Sullivan?

MR KOURAKIS:   There are not pleadings as to the specific holding out by the doctors at the Sexual Assault Referral Centre, so I am in a position in Thompson of having to rely on the implicit holding out by the fact that it is pleaded that they made and reported a diagnosis of sexual abuse.  That is one difference.  The second is that there is not a specific pleading of a diagnosis and a reporting of a diagnosis that the plaintiff was the sexual abuser.

GLEESON CJ:   That word “diagnosis” that the plaintiff was - would it make any difference to your case if you used the word “allegation” or would it expose it?

MR KOURAKIS:   No, your Honour, what is important for my case is the allegation that that is how the doctors described what they were communicating, and for that reason it does make a great difference but, for the purposes of breach, it is certainly my submission and would be the submission at trial that the doctors were not, at least on the material before them, in any position to make anything that could be remotely described as a diagnosis.  But that is how they ‑ ‑ ‑

GLEESON CJ:   I should think not.  It is like saying a jury has diagnosed the accused as guilty.

MR KOURAKIS:   Exactly, but, your Honour, that is a large part of the case in terms of breach against the centre, that that is what they thought and that is what they said they had the expertise to do.  So that is the importance.  As to inappropriateness of suggesting that that sort of examination can in medical terms lead to a conclusion such as that which can be described as a diagnosis is an important part of the breach.

GLEESON CJ:   You mean they professed an expertise not only in reaching a conclusion that a child had been abused but in identifying the abuser?

MR KOURAKIS:   Yes, because they professed an expertise to be able to say whether what the child said was true or not.  So, your Honours, they are the particular differences.  Can I perhaps just give an example of the pleading which falls short of the particular pleading that the diagnosis of abuse was made by the plaintiff.  Perhaps page 8 is convenient, subparagraph (p) on that page.  The diagnosis referred to in paragraph (p) is only pleaded in the earlier paragraphs as a diagnosis that there had been anal abuse, but it is pleaded that that diagnosis, just as to the abuse, not the identity, was made in circumstances where it was known that the plaintiff would obviously be considered the abuser because it was known that he would be spoken to by the police, that he would suffer that distress and the like.  Your Honours, I do not intend to go through those paragraphs.  I have made my submissions as to the differences. 

Your Honours, whilst on that book, can I come to simply make some brief submissions on the reasoning process in the court below by asking your Honours to go to page 59 of that appeal book in Thompson, firstly.  In the bottom half of that page, the learned Chief Justice makes certain observations about the nature of the case that was put against the Department and, in particular, this case is not one of alleging that certain positive action ought to have been taken, but it alleges negligence in the course of taking the steps that I already explained to your Honours.

GAUDRON J:   Could I just go back.  In the Thompson matter the first two defendants are doctors?

MR KOURAKIS:   Yes, the first respondent examined the child N on the first presentation; the second respondent doctor examined the children A and W on two separate occasions subsequently.

GAUDRON J:   Only vicarious liability is asserted for the hospital?

MR KOURAKIS:   For the hospital.

GAUDRON J:   And the State?

MR KOURAKIS:   No, the State has a similar duty alleged as it was alleged in Sullivan.

GAUDRON J:   Yes, thank you.

MR KOURAKIS:   Your Honours, at page 60 in paragraph 28, his Honour, in my submission, correctly proceeds on the basis of the proof of the alleged pleadings and, in particular halfway down that paragraph 28:

reasonably foreseeable that the relevant conduct would result in injury to the plaintiff in the form of emotional distress.

And that even apart from that pleading it was:

readily foreseeable that a person against whom allegations of sexual abuse of children are made may suffer injury as a result of the allegation being made.

His Honour then in the next few pages considers generally ‑ ‑ ‑

GLEESON CJ:   Just before you leave that point, what is the difference between that situation and the situation that applies in the case of any person who is the subject of any investigation in relation to the possible commission of any criminal offence?

MR KOURAKIS:   In terms of the foreseeability of psychiatric ‑ ‑ ‑

GLEESON CJ:   In terms of the foreseeability of suffering emotional distress at being charged.

MR KOURAKIS:   Well, as to that, none - but that clearly is not sufficient.  But in the last sentence on that paragraph, in my submission, his Honour is referring to injury, and in that sense the psychiatric injury alleged in the claim.  In my submission, the difference is that it is foreseeable that people of ordinary mental fortitude will suffer injury if the allegation is of criminal abuse of children in circumstances which leads to the break-up of the family, but not ‑ ‑ ‑

GLEESON CJ:   I would have thought it is reasonably foreseeable that a person of ordinary fortitude might suffer emotional distress at being charged with almost any form of crime, except things like perhaps parking offences or ‑ ‑ ‑

MR KOURAKIS:   It depends on the level of finances even for that perhaps ‑ ‑ ‑

GLEESON CJ:   Even so, yes. 

MR KOURAKIS:   Your Honour, as to emotional distress, yes.  As to psychiatric injury, in my submission, no.  But even if that is not accepted, and it is said that it is reasonably foreseeable that people who are charged will suffer psychiatric injury, then, in my submission, that is not an argument sufficient to extend any duty of care to them for many other reasons. 

GLEESON CJ:   Why not? 

MR KOURAKIS:   Because of the policy considerations ‑ ‑ ‑

GLEESON CJ:   Being? 

MR KOURAKIS:   Well, the inhibition of the proper State process of enforcement of the criminal law. 

GLEESON CJ:   You mean that because the State has an interest in the enforcement of the criminal law, as a matter of policy it would be wrong to impose upon people investigating possible crimes a duty of care to the subject of the investigation? 

MR KOURAKIS:   Because the State has a conflicting interest with those persons, yes. 

GLEESON CJ:   Well, now, what exactly is the difference between that and the present? 

MR KOURAKIS:   In this case, all parties - the State, the parents, the child, the child’s siblings - all have an interest in the maintenance of the bonds of affection between the family unless there is truly evidence of something like abuse which would lead to the requirement, the need, for that family to be disrupted.  But they all have, just as the child does, an interest in not being taken from the family because of negligently formed opinions, and that interest is in common.  And if the interest is owed to the child, then, in my submission, with respect, it is right to find that doctors in this position would owe such a duty to the child, and they negligently perform it, with the result that they report abuse where there is none, and the child is taken from the family, there ought to be a duty owed.  But that duty, and indeed its content, is no different to the duty that is owed to any other member of that family, to avoid psychiatric injury to them by disruption of the family.  Both the duty and the content is the same. 

GLEESON CJ:   Coming back to your proposition that it is perfectly clear that you could not have a duty of care in the case of investigating crime for the purpose of the administration of criminal justice, is it because there would be such an obvious conflict between that kind of duty, if it existed, and the responsibilities of investigators, that you cannot allow the duty? 

MR KOURAKIS:   Yes. 

GLEESON CJ:   And is that not part of the problem with the case you are seeking to make out here, the conflict in which you place these people, including the State, once an allegation of abuse has been raised. 

MR KOURAKIS:   Your Honour, if the only duty of the State – once an allegation was made – was to remove a child and prosecute, and it had no interest to do anything else, then that would be so.  But that is plainly not so because the interest of the State at the same time, at the very same time, is that the child should not be removed unless there was reason to do so based on non-negligent investigation.  It must be so, and it is for that reason that, unlike general prosecutions, in these situations the conflict does not exist, for example, if the matter being investigated was the possibility of abuse by a sibling. 

GLEESON CJ:   Now, I would just like to understand this a little better than I do at the moment.  If a medical practitioner or a social worker at this Sexual Abuse Referral Centre has a duty to take reasonable care to prevent psychiatric injury to potential accused people and members of their family, why is it only negligent diagnosis that would constitute a breach of that duty?  Let us suppose that they accurately diagnosed sexual abuse ‑ leave to one side this concept of diagnosing the identity of the offender - would they owe a duty to communicate their diagnosis sensitively? 

MR KOURAKIS:   Your Honour, they would owe a duty to couch the communication in terms which is appropriate to the diagnosis made, that is, which neither overstates it nor understates it and which states the evidence for and against the diagnosis, if there be evidence both ways. 

GLEESON CJ:   It is not only by making a negligent diagnosis that you might cause psychiatric injury to somebody on the wrong end of an allegation like this. 

MR KOURAKIS:   Yes, that is right.  And, with respect, your Honour, this particular matter was one considered by Sir Thomas Bingham in the Court of Appeal in X.  He said two things about it - that is, the need to couch the communication in appropriate terms – firstly, that it was no different than what doctors should do in any other case; and secondly, that in any event, it was a desirable end in that, for the purpose of making the best decisions for the child, the communication ought to be consistent with and couched in terms which are consistent with the actual diagnosis and the actual evidence. 

It was a desirable result to achieve care in communication of the diagnosis, which fits the evidence.  In my submission, that is so there too.  And the real protection, if you like, or the limitation against oppressiveness to the doctors conducting the examination lies in the setting of the standard, just as the courts would set a standard for a neurosurgeon who has to make difficult decisions in the course of brain surgery in a way which allowed for that.  My learned junior reminds me the same should apply to a barrister. 

GLEESON CJ:   Would the doctors have an obligation to pursue, or not to pursue, investigations as it became more and more apparent that the investigations were causing emotional distress to family members? 

MR KOURAKIS:   Your Honour, they would have duties as to further investigations.  One of the difficulties that one might arrive at in drawing the line is the one that your Honour mentioned.  The other that was discussed below is the limitation in resources; for example, the Sexual Assault Referral Centre only conducted the one interview and then, if there were to be further interviews, they had to simply make recommendations but, in my submission, they would have a duty to make an appropriate recommendation as to further treatment.  One of the matters of concern that would have to be dealt with is the matter that your Honour raised, that is, that the very investigation might cause further distress.  But again, in my submission, in considering that question, it is difficult to see how the interests of the child would relevantly be different to the interests of the parent in making those decisions. 

HAYNE J:   But that perhaps identifies, does it not, one of the principal tensions in your contention.  You contend that there is a duty of singular content which is owed in an undifferentiated way to all members of the immediate family unit, that duty being stated as:  to make a correct diagnosis of abuse or no.  Do I capture the essence of your argument? 

MR KOURAKIS:   The only thing I would add is to avoid psychiatric injury to the family by not doing so. 

HAYNE J:   The difficulty is that if you have a duty to all of the members of the immediate family, there will inevitably be irreconcilable tensions in the performance of that duty - for example, in the interests of the child, to the obligations that would be imposed in performing that duty in the interests of a parent, be it the complaining parent or the object of complaint.  And those tensions – I invite your comment – may be seen as irreconcilable. 

MR KOURAKIS:   In my submission, they are not, simply because the interests of all the members of the family depend on a thorough and competent investigation.  The only ‑ ‑ ‑

HAYNE J:   The interests of all of the members of the family may at one level be stated as:  to preserve the family unit.  That cannot be a complete statement of the interest; it must be:  to preserve the family unit where possible and desirable.  And the moment you inject that qualification to it, “where possible and desirable”, tensions emerge. 

MR KOURAKIS:   If your Honour pleases, in my submission, the tensions will emerge when someone, the other partner or the Department, comes to make decisions about where the child should reside at a particular point during the investigation, and as to whether, to take up your Honour the Chief Justice’s observation, an investigation should be continued, despite discomfort or difficulty for a particular member of the family.

In my submission, those judgments are judgments which occur in what I submit is the third stage of any investigation.  The first is simply the making of a complaint.  The second, and the one with which, in my submission, we are concerned here, is the conduct of investigations competently.  And the third is the making of decisions in the interests of the child.  The duty for which we contend is limited to that middle ground.  And this particular case deals with breaches of the duty to investigate carefully.  His Honour the Chief Justice below observed that there might be difficulties in drawing the line in all cases between investigation and the third stage.  And, with respect, what your Honour the Chief Justice put to me is probably an example - which had not occurred to me before – but a concrete example of where that might arise, that is, the crossing over between the investigative stage and the decision-making stage as to what best to do for the child.  I cannot shy away from the fact that here also, where one attempts to draw a line, comparisons between those cases immediately within and without might show some anomaly, but ‑ ‑ ‑

GLEESON CJ:   Mr Kourakis, I am not clear, but was one of the responsibilities of these doctors at the Sexual Assault Referral Centre to make recommendations to the Department? 

MR KOURAKIS:   Your Honour, I am not sure that that is pleaded.  I think it is just the communication, and there may have been a suggestion that the Department contact the police.  That might have been a recommendation. 

GLEESON CJ:   That is part of my problem about these references in the pleadings to what is called the role of the Sexual Assault Referral Centre.  I have to say that I am not a hundred per cent sure that I understand exactly what the role of the Sexual Assault Referral Centre is. 

MR KOURAKIS:   Yes.  Your Honour, for our purposes, what the plaintiff claims is this, that it took upon itself the role of conducting medical examinations in the broad sense, including interviews, and purported to make what they call diagnoses as a result.  In that part of their role, whatever it extended to, they were negligent, and the communication of the diagnosis caused us psychiatric injury in a number of ways.  Now, the questions such as whether to call in the police or not, whether the child should immediately be removed from the home or not, are final judgment calls on where the best interests of the child lie, and there may well be conflicts in that process but where everyone has a common interest is in this, and that is that those judgments should be made on competent, scientifically conducted investigations, or that at least no one should suggest that they are able to make a scientific diagnosis if they in fact have not done so.  It is in that area that, in my submission, there is that coincidence of interests which allows the imposition of a duty. 

At page 62, the top of the page, his Honour is completing a consideration of this Court’s decision in Crimmins and at paragraph 36 makes the observation in accord with the submission I think I made a little earlier, and that is that this is not a case where what the Department did was based on a direct power in the statute, and that the complaints that the Department ought to have done were not so based. I submit that that is what his Honour is getting at in paragraph 36. At paragraph 39, in advance of his consideration of the matter, the Chief Justice stated his conclusion that there was no implication from the statute excluding any duty of care. Those reasons are explained at paragraph 41 and over the page, and they are reasons that I adopt.

Your Honours, the learned Chief Justice then goes on to consider the issues which arise in determining whether at common law a duty should be imposed.  In paragraph 46 he deals with the starting point, as it were, of foreseeability.  In paragraph 47, his Honour accepts that the complaint that further inquiries should have been undertaken: 

does not add to or increase the complexity of the task undertaken by the doctors. 

That is right at the foot of page 63.  In paragraph 48 at the top of page 9, the learned Chief Justice accepted that there was a certain vulnerability, unlike allegations which are brought in court and are eventually subject to contest before anything more than the mere charge – which, in my submission, is not a relevant injury that occurs – is a point of distinction with these cases, where the action in removal of a child from the home is immediate. 

His Honour then considers the counter‑considerations from paragraph 50.  In paragraph 50, the point, which is really one of how to influence rather than control, is made; that is, that the harm is a result of the actions of others.  It is my submission simply that the power to influence, if a diagnosis is communicated negligently, in these circumstances is significant. 

GLEESON CJ:   But negligent making of a diagnosis or negligent communication of an accurate diagnosis are just particular instances of breaches of what you say is the duty, are they not? 

MR KOURAKIS:   Yes. 

GLEESON CJ:   You say the duty is to take reasonable care to prevent psychiatric injury to a member of the family of a person who is suspected of having been abused.  Is that an accurate and complete statement of the duty? 

MR KOURAKIS:   Yes. 

GLEESON CJ:   Thank you. 

MR KOURAKIS:   Your Honours, in paragraph 52, his Honour refers to “complex causation issues”, and they have been raised already, particularly by your Honour Justice Gaudron with respect to James.  But, in my submission, the recognition that causation issues might be complex is not a reason to deny the existence of a duty of care, and the House of Lords accepted that proposition in the course of the judgment removing barristers’ immunity in Hall v Simons [2000] 3 WLR 543 which, your Honours, is in our booklet of material, but I do not take your Honours to it. The particular passage on which I rely is at 570E, where the obvious causation issues which would arise in a case involving the negligence of a barrister were held not to be a reason not to impose the duty of care or remove the immunity.

Your Honours, the subsequent paragraphs deal largely with the question of retainer, and absence of analogous cases.  Over the page, at page 65, in paragraph 57, his Honour deals with the question of indeterminacy.  I made my submission as to why a determinate class can be drawn in these cases.  His Honour then considers a number of objections to the imposition of duty raised in X going largely to the delicacy of the tasks.  In my submission, they are simply arguments that apply in many areas of negligence, particularly professional negligence, and, if the identity of interest submission is accepted, not an argument for not imposing the duty in this case. 

GAUDRON J:   Can I just interrupt you again.  When I think about your answer to the Chief Justice earlier about the conflict that would emerge and prevent the imposition of a duty of care in the investigation of crimes generally, the hypothesis on which you proceed – on which your argument must proceed in distinguishing that – is that there is something about the nature of crimes committed within a family that makes them different from other crimes.  Now, at least as a social hypothesis, I would have thought that had been exploded long ago. 

MR KOURAKIS:   Your Honour, that is not a hypothesis on which our submissions proceed ‑ ‑ ‑

MR KOURAKIS:   In so far as the result is simply the laying of a charge or eventually the bringing of proceedings in the Family Court, that is so but in that interim period where the plaintiff has no control over, and is in fact is excluded from, for understandable reasons, the initial investigation, he has no capacity to take measures to safeguard himself from the effects of that in that initial period.

GAUDRON J:   Let us be a bit more specific.  He has no ability to protect himself against psychiatric injury; is that what we are talking about?

MR KOURAKIS:   The psychiatric injury which flows from the confrontation of that accusation and the removal of the others from his family, yes.

GLEESON CJ:   An encounter with the criminal justice system commonly leaves people bruised, even though they are not convicted.

MR KOURAKIS:   Yes.

GLEESON CJ:   I notice that in at least one of these cases there is no allegation - perhaps there does not need to be - that the plaintiff is innocent.  The allegation is that there was a “no bill”.

MR KOURAKIS:   Yes.

GLEESON CJ:   There are all sorts of people who, in one way or another, inflict those bruises who are not under a duty of care, not least amongst them being judges.

MR KOURAKIS:   Yes.  In my submission, the obvious reasons for not importing a duty of care in those circumstances do not apply to these particular circumstances, but I would simply be repeating my submissions if I stayed with that, if the Court pleases.

Finally, on the question of whether the duty that the appellants here contend for with respect to the doctors is to get it right or simply to prevent a risk of harm, in my submission, the latter formulation will still come back to the first unless, of course, by risk of harm one only means the risk of abuse, in which case it obviously is a relevantly different duty.  If the risk of harm also includes harm that might be occasioned to the child by an unnecessary removal following careless investigation, then the question still remains the same, and it is for that reason finally that, in my submission, even in those grey areas where the doctors can only speak of possibilities either way, the duty to investigate carefully remains and is coincident, although conflicts will arise in terms of making judgments as to how to best care for the child in the interim.  If the Court pleases.

GLEESON CJ:   Thank you, Mr Kourakis.  We will reserve our decision in this matter.

AT 2.42 PM THE MATTER WAS ADJOURNED