Sullivan v Moody & Ors, Thompson v Connon

[2001] HCATrans 275

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 TUESDAY, 14 AUGUST 2001 AT 3.08 PM

Copyright in the High Court of Australia

MR C.J. KOURAKIS, QC:   If the Court pleases, I appear with my learned friend, MR H.M. HEUZENROEDER, in the matter of Sullivan  (instructed by Margaret J. Minney) and with my learned friend, MS E.M. BOXALL, in the matter of Thompson.  (instructed by Norman Waterhouse)

MR A.J. BESANKO, QC:   If the Court pleases, I appear with my learned friend, MR D.C. LOVELL, for respondents one to five in the matter of Sullivan  (instructed by Fisher Jeffries Barristers & Solicitors) and for respondents one to three in the matter of Thompson.  (instructed by Joanne Tracey)

MR B.M. SELWAY, QC, Solicitor‑General for the State of South Australia:   If it please the Court, I appear with my learned friend, MR M.W. MILLS, for the State of South Australia, being the fourth respondent in matter A23  (instructed by the Crown Solicitor for the State of South Australia) and the sixth respondent in matter A21.  (instructed by the Crown Solicitor for the State of South Australia)

Would your Honours note that in our written submissions we refer to it being the seventh respondent.  In actual fact, it is the sixth.

GLEESON CJ:   Thank you, Mr Solicitor, and is everybody agreed that these two appeals should be heard together?

MR KOURAKIS:   Yes, your Honour.

GLEESON CJ:   Yes, Mr Kourakis.

MR KOURAKIS:   If the Court pleases, there is no real dispute between the parties as to the formulation of the general test, what is accepted to be a strict test to strike out applications taken by the defendants.  In my respectful submission, the issue is the application of that formula in cases claiming negligence in novel categories, or types of negligence, precisely because the law as to that develops incrementally and is in a particular state of flux or development in Australia at the moment.

If the Court pleases, as to the general test, that is that the plaintiff’s case is so obviously untenable that it cannot succeed or that under no possibility can it succeed, as I say are well‑accepted propositions arising from the judgment of former Chief Justice Sir Garfield Barwick in General Steel.  Effectively though, it has been considered, particularly in cases of negligence in novel categories and, indeed, in cases that have some similarity with the cases brought by the appellants here and the importance in those circumstances of reserving a final determination as to whether a duty of care might arise until all the facts have been found has been stressed on a number of occasions, particularly more recently by the House of Lords.

If I can take your Honours, indeed, to the decision of the House in Barrett’s Case, which your Honours will find in volume 2 of the respondents’ volumes of authorities under the first tab in that volume at tab 9 generally.  Barrett v Enfield London Borough Council [1999] 3 All ER 193 is the authority. Can I ask your Honours to go to the speech of Lord Browne‑Wilkinson at page 197e. Under the heading “Striking out” your Honours will see that Lord Browne‑Wilkinson there refers back to comments made in the case of X, which was a case in which a number of appeals were concerned within that group of appeals.

It was, in fact, the case of M that has the greatest similarity to the cases before your Honours.  But his Honour there referred back to those comments which again reinforced the difficulties that defendants faced in applying to strike out claims prior to the ascertainment of the facts and his Honour concluded that passage at the foot of that paragraph:

In my judgment it is of great importance that ‑ ‑ ‑

GAUDRON J:   But now, can I interrupt you here, only because I am somewhat concerned about whether much time might be taken up on this.  If the decision, the earlier decision of the Full Court, the name of which ‑ ‑ ‑

MR KOURAKIS:   Hillman.

GAUDRON J:   If Hillman was correct, then there was no doubt that this was a strike‑out case.  Is that not right?

MR KOURAKIS:   If your Honour pleases, the way in which I would put it is this, that if Hillman was correct in holding that in no particular factual circumstance in cases of this type could a duty of care arise, if it was correct, then we do not propose ‑ ‑ ‑

GAUDRON J:   It was a strike‑out case.

MR KOURAKIS:   That is right.

GAUDRON J:   So why do we worry about the strike‑out rules at this point?  Why do we not cut straight to the chase and see if Hillman was correct?

MR KOURAKIS:   If the Court pleases, the appellants certainly have no difficulty in going straight to that point.  Leave was given on a particular basis which placed somewhat more emphasis on the strike‑out position.

GLEESON CJ:   Yes.  I am, for my part, far from sure that the ordinary General Steel test can be applied directly and literally to a situation such as arose in the present case where, on the current state of authority binding on a trial judge, the trial judge was bound to find for the defendant, which seems to have been common ground.

MR KOURAKIS:   Yes, and, as I say, the way in which I would put it is that if one takes the decision in Hillman to say - and, in my submission, it does - that in this category of case, that is where medical professionals are investigating child sexual abuse, a duty of care to the suspected abuser can never arise, if that is what it holds - and, in my submission, it does ‑ ‑ ‑

GLEESON CJ:   Indeed.  From the point of view of the judiciary in South Australia, unless you can persuade this Court to overrule Hillman, the plaintiffs in these two cases had to lose.

MR KOURAKIS:   Yes.  That is not to say that the end result might be that Hillman is confined to its facts and all this Court needs to do – because in the end it is still a strike‑out application that has found its way to your Honours, is to ‑ ‑ ‑

HAYNE J:   It may also invite attention to what was pleaded, and surely the beginning of this inquiry is to look at the pleading that was filed and not start at the cases.

MR KOURAKIS:   Yes.

HAYNE J:  But let us identify what was pleaded, what is the duty alleged and then perhaps go to the cases.  I speak only for myself.  Perhaps Hillman is where we should start.

MR KOURAKIS:   Yes.  I had proposed to take your Honours to the decisions in these cases to show that the rule that has been applied is that in no circumstances could a duty of care owed by the medical practitioners to the suspected parent arise and to argue that, at the very least, in the court below it should have been held that the duty might arise, but whether or not it did or not depended on the particular factual circumstances that the trial might reveal.

GLEESON CJ:   Am I right in thinking that it was conceded in the courts below that the facts pleaded in these two cases were, in point of legal consequence, indistinguishable from the facts in Hillman?

MR KOURAKIS:   Yes, in this sense again, that on the basis that the rule in Hillman was that, given allegation of sexual abuse investigation by medical officers and the Department, in no circumstances could they owe a duty to the suspected parent.  It was conceded that that is exactly the type of case that these two cases were and if that rule stated in Hillman remained the case, it was, in fact, appropriate for a strike‑out.

GLEESON CJ:   Is it also common ground that the facts in these two cases are, in point of legal consequence, indistinguishable from one another?

MR KOURAKIS:   No.

GLEESON CJ:   Which case is stronger than the other?

MR KOURAKIS:   It did not come to that.  The point was that they were not summary judgment applications and no affidavits were filed and there is no comparison of the facts clearly between each.  Certainly the pleadings in both bear a great deal of similarity, but no concession as to the identity of the facts within the ambit of the pleadings in each case was made.

CALLINAN J:   What about what appears at page 141 line 35?

MR KOURAKIS:   In which appeal book, if your Honour pleases?

CALLINAN J:   In Sullivan.  What do we make of that?

MR KOURAKIS:   Your Honour, all that means is, in the way that I have expressed it up until now, was that the concession was that given the breadth of the rule in Hillman there was no distinction simply because these cases were cases taken by the suspected parent against the Department and doctors investigating child sexual abuse and, in my submission, that can be properly understood from the transcript which appears at the appeal book at page 125.

GLEESON CJ:   Well, let me test it by reference to one particular fact that is common to these two cases.  Does anything in your argument turn upon the circumstance that we are concerned with sexual abuse as distinct from cruel beatings?

MR KOURAKIS:   No.

HAYNE J:   Or, indeed, does anything turn on the fact that some misconduct on the part of one parent is alleged or suspected?  Why is the principle not equally apt to the case of the doctor called to examine a child who, let it be assumed, with plain negligence, misdiagnoses the child as suffering from leukaemia?  Does that doctor owe a duty of care to a parent?  Does this doctor owe a duty of care not to what you have described as the suspected parent, but to the other parent?

MR KOURAKIS:   Yes.  If your Honour pleases, it is my submission that similar questions will arise.  Final decisions might depend on some particular facts but, indeed, it is a large part of my submission that the attempted distinction and isolation into one category of the parent that is called the suspected parent does not bear analysis and that it may well be that this decision has been arrived at because of certain pre‑judgments about the consequence of the fact that one parent is suspected.

One of the examples that was put in our submissions in reply is the case where both parents engage a paediatrician to consider whether one sibling has assaulted another to investigate that question and whether the paediatrician in that case owes a duty of care only to the victim child or to the suspected child and/or to the parents.

GLEESON CJ:   Do corporate investigators engaged by ASIC owe a duty of care to the people they are investigating?

MR KOURAKIS:   Your Honour, those sorts of cases raise much more difficult questions, primarily because of the indeterminate nature of an inquiry at certain stages where there may be many suspects involved or, conversely, no suspect might be known.

HAYNE J:   Or by the exercise of State power.

MR KOURAKIS:   Yes.

HAYNE J:   The consideration that State power is being asserted, that is, government power is being asserted, by itself injects a very considerable element.

MR KOURAKIS:   Yes.

GLEESON CJ:   I am just trying to understand the level of particularity or generality at which whatever is the principle has to be tested, and your reference to the pleadings, in a sense, raises this question.  The pleadings are perhaps unusually detailed in some respects but they contain within themselves what are called particulars.  Is there a material difference between the principle that would apply to both of these cases?  Is there a difference between the principle that would apply to these cases and Hillman?  Is there a difference between the principle that would apply to these cases and a claim against a policeman who was investigating a crime?  Does he owe a duty of care to the suspected criminal?  At what level of generality do you want us to consider the principle?

MR KOURAKIS:   Not at the level of generality of the investigating police officer, because that is simply a whole new ballpark really, and a much more difficult question.  But, in terms of the pleadings, the pleadings refer to a particular allegation of sexual abuse but the answers, in my submission, as to whether the case is arguable – the principle will not differ whether it is physical abuse or sexual abuse.  Whether it is the suspected father or another suspected member of the family or, indeed, just a member of the family to whom the duty might be ‑ ‑ ‑

GLEESON CJ:   Or whether it is abuse as distinct from neglect.

MR KOURAKIS:   That is so.  The question can involve, and would involve, in my submission, those sorts of considerations.

GLEESON CJ:   So, the relevant facts, from the point of view of a pleader, the relevant facts are that officers of a government authority were given the task of investigating the possibility of criminal conduct by an adult person towards a child and the statutory provisions pursuant to which they undertook that task are known.  Question:  in those circumstances, did they owe a duty of care to the person whose conduct was under investigation?

MR KOURAKIS:   Yes, that is the particular question.  Our submission is that ‑ ‑ ‑

HAYNE J:   That seems to bear little relationship to the pleading I have read, but there we are, Mr Kourakis.

MR KOURAKIS:   Well, I can come back to those in due course but, your Honour, I should say this also.  It is the respondents’ case that this investigation was undertaken with the exercise of statutory powers but, in our submission, the statutory framework was simply just that, a context in which it occurred and that there was no particular exercise of statutory power.

Secondly, the way in which we put our case - indeed, the way in which the case was argued below and is likely to be argued here - questions that I might call questions of general proximity in terms of degree of foreseeability, vulnerability, ability to influence or control, in my respectful submission, point largely in the direction of a duty of care.  The matters that are relied on to argue that there is not one are questions of policy, reasonableness and inconsistency with statute, in a sense answering or limiting contentions that are made to the scope of the duty that is alleged.

I make that submission simply to make the point that for that reason, in this sort of case, all the more reason not to strike out at this stage but to allow the development of the facts if it be the defendants’ contention that ultimately some inconsistency or reason in policy for denying the duty of care might arise.

GLEESON CJ:   What exactly is the meaning of the expression “duty of care” when you are asking it in a context which involves an investigation by government authorities into the possibility that a crime has been committed and your inquiry about whether or not the investigator owes a legal obligation to the person under investigation to exercise care?  What is the kind of care that is involved there?

MR KOURAKIS:   Your Honour, although this claim arises in the context of investigation, the actual claim is not with respect to negligence in the investigation purely.  These sorts of investigations, in fact, do not just gather information.  They affect the people that are subject to the investigation in fairly concrete ways and ways which are obviously going to disrupt families and, of course, it is not just the investigators in the sense of the Department of Community Welfare that the action is brought against, but doctors who are simply exercising professional judgment in carrying out physiological examinations as well as interviews and the like.

So the duty of care in that context is not, as it were, particularly focused on the information-gathering and an investigation in that sense, but rather the way in which things like medical examinations are conducted and the way in which communication of diagnoses and opinions following those examinations are made by the doctors to the Department or by the doctors directly to the non‑suspected parent.

So the content of the duty of care is simply to approach that scientifically and to ensure that the communication of diagnoses following such a scientific examination is a communication appropriate, given the level of information obtained in the examination.

GLEESON CJ:   But would there be any difference between the nature of a duty owed by a doctor who was undertaking a physical examination of a child to see whether the child showed signs of a certain form of mistreatment and the duty of a forensic scientist who is examining a safe to see whether there are fingerprints on it?

MR KOURAKIS:   Your Honour, in my submission, there are, and the reasons that a duty of care might arise in the case of the doctor is obviously a closer relationship between what the doctor does and the effect on the patient and the patient’s family or the child’s family, without the possibility of intervention along the line.  In fact, vulnerability and control feature largely there.  The forensic scientist who examines for fingerprints provides a report and that report has no immediate effect until it is used in evidence, by which time a defendant properly advised, and assuming they have resources, obtains an independent assessment of their own and in the end a decision is made in due course.  Judicially, very different consequences, and immediate consequences, arise from the negligent examination of a child in the context of an allegation of child sexual abuse.  So it is for that reason that I made the submission earlier that ‑ ‑ ‑

GLEESON CJ:   We can drop the “sexual”, can we not?

MR KOURAKIS:   Yes.  The same would apply in the case of physical abuse or neglect, the potential for an effect on the family before, whilst the family is vulnerable in the sense that there is not the opportunity in terms of time to answer at all the opinion that it is expressed following that examination.

McHUGH J:   But you have not identified the ingredients of the duty, have you?  It seems to me that the way you have pleaded your case, particularly in paragraph 28, is misconceived.  The duty is a duty to prevent harm to the plaintiff.

MR KOURAKIS:   Yes.

McHUGH J:   You seem to have wanted to be a free rider on a duty that may have been owed by the first defendant to the parent who requested the examination or perhaps to the child herself.  But what you have to show is that the defendant owed a duty of care to the plaintiff to avoid some kind of harm to the plaintiff.

MR KOURAKIS:   Yes.

McHUGH J:   What is the harm that had to be avoided?

MR KOURAKIS:   The harm that had to be avoided was the emotional and psychiatric injury that would follow a disruption to the family.  So that the harm in a sense in a general way is simply the disruption of the family unit, with the particular forms of injury ‑ ‑ ‑

McHUGH J:   At least under Hill v Van Erp it was always accepted that it was essential that some right of the plaintiff should be infringed by the defendant before you have a case of negligence.  Now, what is the right of the plaintiff that is infringed?  Is it some physical right?  What is it?

MR KOURAKIS:   Ultimately in this case what is said is that it is the right of the plaintiff not to suffer injury, in particular psychiatric injury.  The way in which it is pleaded is that it is a psychiatric injury consequent upon the disruption to his family life.

McHUGH J:   When you frame it in that way and you seek to say there is a duty to avoid causing psychological harm to the plaintiff, it imposes an enormous burden on a practitioner, does it not?  Does it mean that the doctor is under an obligation to see what sort of a person the plaintiff is, to how well that particular plaintiff can withstand stress?

MR KOURAKIS:   In my submission, no.

McHUGH J:   Why not?  Duties of care are owed personally.  They are not owed in globo, they are owed to individuals.

MR KOURAKIS:   In my submission, no, because, to go back to your Honour’s observation as to riding on the duty owed to the child or perhaps to the other parent, it is a submission we make and a concession, if you like, that the duty to the other parent, the parent not there, cannot be greater than the duty owed to the child or the parent that is not suspected.  It is an important part of our case that the duty that we claim for is one which is coincident with the interests of the child.  Just as, fairly obviously, the interest of the child is not to be left in a family environment where it might be abused, in our submission, equally it is within the interests of the child not to be taken from a family in which it is not abused and, indeed, properly cared for.  Both those forms of harm can be avoided if proper care is taken in the investigation and ascertainment of the base facts.  The decisions that are ultimately made as to where a child should reside after such a careful investigation is not one for which the plaintiffs claim in these proceedings a duty.

HAYNE J:   But the relevant hypothesis for debate must be, must it not, that there has been a careless misdiagnosis either of some form of abuse or, if the example I gave of leukaemia were a right, a misdiagnosis of disease.  If that is the relevant hypothesis, injecting notions of suspected parent, as opposed to innocent parent, seem to distract attention from that hypothesis.  Now, is the hypothesis right?  If it is right, what follows from it?  If it is wrong, why is it wrong?

MR KOURAKIS:   If your Honour pleases, the appellants do put their case in this way, that is that the duty to take care in the investigation of the abuse problem ought to be looked at simply as a duty to take the professional care which the examiner holds themselves out to have.

HAYNE J:   Well, duty to whom?  Firstly, does the examiner owe that duty to the child, the person being examined?

MR KOURAKIS:   In our submission, it does.  The effect of the House of Lords decision in X and the decisions below is really that it does not.

HAYNE J:   Leave aside what the House may have said.  Why does the doctor owe a duty to the child being examined?

MR KOURAKIS:   For a host of reasons, including the great foreseeability of harm, the vulnerability of the child, the ability to influence and control the ‑ ‑ ‑

GAUDRON J:   Is it not because the doctor holds himself or herself out as competent to diagnose and/or treat?

MR KOURAKIS:   I would be more than happy to add assumption of responsibility to the ‑ ‑ ‑

HAYNE J:   That is, if a duty is owed to the child, does the doctor owe a duty to, to adopt your language, the innocent parent, the parent who presents the child for examination?

MR KOURAKIS:   In my submission, the doctor does, not only for the reasons that I mentioned a moment ago ranging from foreseeability to vulnerability and control, but because, although perhaps not as obviously, there is an assumption of responsibility to the other parent.

GLEESON CJ:   Does that mean that if a barrister advises a corporation on whether the corporation has legal grounds for dismissal of an employee, the barrister owes a duty of care to the employee?

MR KOURAKIS:   No.

GLEESON CJ:   Well, the employee is vulnerable to incompetence on the part of the barrister.  It is foreseeable that incompetence on the part of the barrister might cause serious harm to the employee.

MR KOURAKIS:   But the reasons of policy and the obvious inconsistency between the interests of the barrister’s client and the employee would preclude the imposition of a duty of care, just as in these cases ‑ ‑ ‑

McHUGH J:   That is an assertion; it is not a statement of principle.  What is the principle upon which you can distinguish the case that the Chief Justice put to you from the case of the doctor?  What principle?

MR KOURAKIS:   In my submission, it is, if you like, the third stage of the Caparo test or the equivalent in other ways in which the test has been formulated.

GLEESON CJ:   Well, does that mean we have to decide whether the Caparo test is the appropriate test?

MR KOURAKIS:   No.

GLEESON CJ:   Why not?

MR KOURAKIS:   It can be put in another way, that the statement of principle is the application of the fifth and sixth categories set out by your Honour Justice McHugh in Crimmins.  That is the consideration of whether a duty exists when one comes down to those parts of the test which differentiate and distinguish the case put to me by your Honour the Chief Justice and the case I put with respect to these appellants.

GLEESON CJ:   But there are plenty of professional people who hold themselves out to their patients as having skill and competence and who deal with patients in circumstances where, if they act unskilfully, that can have consequences for a lot of other people besides the patient.

MR KOURAKIS:   Yes.

GLEESON CJ:   Do they then owe duties of care to those other people as well?

MR KOURAKIS:   In certain circumstances they can, just as her Honour Justice Bell in the New South Wales Supreme Court, in a case of BT v Oei, held that a doctor who failed to advise a male partner of a certain couple to take an HIV test owed a duty of care to prevent the harm, being the consequential infection with HIV, to his patient’s sexual partner and later wife.  Those situations can arise.  What is critical is that the interest of the direct patient or client is coincident with the interest of the third party and that, when one considers all the other factors ranging from foreseeability to control and the like, there is reason to impose a duty of care.

GLEESON CJ:   Does that mean that if you do your job badly you are liable to be sued by anybody who suffers foreseeable harm as a consequence?

MR KOURAKIS:   No.  The appellant’s case is not one that there is any form of indeterminate liability, for example on the facts of these particular cases.  The persons to whom the doctors investigating the children would owe a duty of care are the family of the child.

McHUGH J:   That must be in every case.

CALLINAN J:   Yes.  A misdiagnosis of cancer could be very, very distressing and damaging to every member of a close family, and it is difficult to distinguish that situation from what we are talking about here.

MR KOURAKIS:   Yes, I would accept that but, in my submission ‑ ‑ ‑

CALLINAN J:   So it is a very, very extensive duty you are arguing for.  Does it extend beyond the family?

MR KOURAKIS:   In the circumstances of this case where the duty arises because of the concern about the child, in my submission not, because one can draw sufficiently clear lines in terms of the class of people to whom the duty would be owed by reference ‑ ‑ ‑

HAYNE J:   What are those lines?  Do you stop at the parents, do you include the parents?  Where is your line that you are staking out?

MR KOURAKIS:   A convenient line would be the very definition of “relative” in the Act itself, which could be accepted as an appropriate line.  That extends to parents, step‑parents, siblings.

HAYNE J:   Mr Kourakis, you cannot just casually drop into the proposition that there is an Act.  Are you founding this duty in the Act and what it provides?  Are you finding this duty more broadly?  Are you founding it on the fact of the relationship of infant to parent?  At some point you are going to have to draw some lines.

MR KOURAKIS:   Yes.  Well, if the Court pleases, the only line that needs to be drawn by the appellants is a duty in the case of an investigation of a problem or abuse of a child to the parent.  If it is said that that then causes a difficulty in that there is no reason for distinction ‑ ‑ ‑

McHUGH J:   By “child” you mean an infant child?

MR KOURAKIS:   Yes.

CALLINAN J:   But do we not have to go to the Act anyway?  That is what the Court did in Crimmins and by a narrow majority decided features of the Act gave rise to the duty.  Do you say that that is what we should do here or do we just look at the common law, we ignore the Act or ‑ ‑ ‑

MR KOURAKIS:   No.  In my submission, the Act must be considered and the end result, it is my submission that his Honour ‑ ‑ ‑

GAUDRON J:   Well, is there not, however, this question?  Let us assume the Act is not involved for the moment.  Let us assume that one parent, with no intention of ever involving the Department or the police and perhaps with no intention even of engaging the Family Law Act, takes his or her child to a doctor to investigate not even sexual assault, but nightmares.  The doctor at that point says, or forms the view perhaps, having regard to other things, that the child has been abused; it need not even be sexually abused.  Now, is there a duty in that situation?  It seems to me if there is not a duty in that situation, there is not going to be one in the context of the Act either.  Would you accept that?

MR KOURAKIS:   Yes.

GAUDRON J:   Well, is there a duty in the former situation?

MR KOURAKIS:   In my submission, there is.  If the conclusion that the child has been assaulted is formed negligently - it might even be a negligence as obvious as some mistake as to physiology made by the doctor to form that opinion - and then communicating it to ‑ ‑ ‑

GAUDRON J:   Just stop at this “communicating it to”.  It need only be communicated to the particular parent that took the child there.

MR KOURAKIS:   Yes, and is communicated.  Then, in my submission, it is communicated in circumstances where there is obviously a foreseeable risk to the child if it is to be removed from the family in which it is suspected or to be denied contact ‑ ‑ ‑

GLEESON CJ:   I do not think anybody has any problem with the duty to the child, but your case seems to depend upon the coincidence between the parent and, if I can use this expression, the object of the accusation.

MR KOURAKIS:   Yes.

GLEESON CJ:   But what if it is a teacher?  What if the person who is the prime suspect, if the child has been abused physically or mentally, is not the parent who takes the child along to investigate the nightmares but the teacher that the child is having trouble with at school?  Does the doctor owe a duty to the teacher?

MR KOURAKIS:   In my submission, not, and, in my submission, that is the case because, in terms of the effect of communicating the negligently made diagnosis, the teacher is not in a vulnerable position in the same way as the parent is or the sibling of the child is.

GLEESON CJ:   So if it is the child’s older brother who is the potential accused, the doctor owes a duty there.  What if it is the next-door neighbour?

MR KOURAKIS:   For the same reasons or at least similar reasons that I advanced for not imposing a duty to take care to prevent harm to the teacher, no duty would arise with respect to the next-door neighbour.

GLEESON CJ:   Well, what about the scoutmaster?

MR KOURAKIS:   Equally.

GLEESON CJ:   What about an uncle?

MR KOURAKIS:   It may be more difficult.  But, your Honours, the line that is drawn has more to do with the importance of the object of suspicion or object of investigation to the child and if it is the case that it is foreseeable that there will be injury to the child by a negligent removal from contact with that family member - and, in my submission, it is likely, if it is accepted at all, to be confined to that - then that allows, if you like, the other plaintiff, the other member of the family, to piggyback on the direct and obvious duty to the child.

Your Honours, it has been held in England in the Court of Appeal there that even in the case of an investigating police officer investigating the crime, that investigating police officer, it was held, arguably, might hold a duty to the suspected parent.  That was a case determined and it is the case of L v Reading Borough Council in my friend’s bundle of authorities in volume 2 under tab 12.  Your Honours, in that case a police constable, together with a social worker, interviewed the father about an allegation of child sexual abuse made by the child’s mother.

As a result of opinions formed by the constable during the course of that interview, proceedings were taken to remove the child from his father, prevent any contact.  As it turned out, as it later transpired, the child’s mother suffered Munchaussen’s Syndrome by proxy.  The child was eventually returned to and resided with the father.  The Court of Appeal from page 9 over to page 10 held that the action should not be struck out, that it remained arguable that the constable’s duty extended to the father at the point in the investigations when certain decisions were made about the effect of answers which the child had given.

GAUDRON J:   Just go back to the general discussion, there is no damage until there is a communication of the misdiagnosis for this - is that right?

MR KOURAKIS:   In the case where a diagnosis of abuse is negligently made, that is so.  If the negligence is not finding the evidence of abuse, not diagnosing it, then the damage is in the failure to communicate.  But, in a case where the negligence alleged is one of negligently deciding that there was abuse, yes, the damage will not occur until there is a communication.

GAUDRON J:   So, to go back just a little bit, it is in the communication aspect, as it were, that the act becomes relevant.

MR KOURAKIS:   Yes.

GAUDRON J:   The question whether at common law there might be a duty is really anterior to the communication, in a sense.

MR KOURAKIS:   Anterior to the acts, which may be the breach if there is a duty, yes.

GAUDRON J:   Yes.  So, as you analyse it, the relevance of the statutory provisions is to whether or not there is a breach or whether or not there is a duty?

MR KOURAKIS:   No, they can go to both, if your Honour pleases.

GAUDRON J:   Both?

MR KOURAKIS:   Yes.  In this case, in Connon, his Honour the Chief Justice held that there was not an inconsistency between the act and the claimed duty so as to evince any intention to exclude common law duty.  His Honour Justice Gray, with whom Justice Duggan agreed, held that there was such an inconsistency, but his Honour the Chief Justice went on to consider whether, even given the finding that there was not an implicit exclusion of the common law, the scheme generally was such as to deny the existence of a relationship into which you could import a duty of care and held that the relationship was such given the statutory framework that no such duty could be imported.

CALLINAN J:   Once the diagnosis was made, or made negligently, communication of it to the suspect would be inevitable, would it not?

MR KOURAKIS:   Yes.

CALLINAN J:   So, nothing really turns on communication?  It is something that is bound to happen.

MR KOURAKIS:   Yes.  I mean, a case is hardly likely to ever arise.

CALLINAN J:   There would be no damage if there were no communication.

MR KOURAKIS:   That is right, yes.  But, it, nonetheless, in my submission, has some importance, of course, in that the negligence or the actions which might amount to a breach of the duty can occur at either stage, that is in the investigation, the formation of a diagnosis and in the terms in which that diagnosis is communicated, and so the fact that a communication is required before any damage results has some importance.

GLEESON CJ:   In the days of Groom v Crocker, when it was thought that a professional person’s duty to a client or patient was founded in contract, not in tort, the rules about privity of contract would identify the person to whom the duty was owed, I presume.  But, if you are right, when the step was taken of opening that up and saying the liability is in tort, regardless of whether there is a contract, there was an enormous expansion in the potential practical content of the duty, was there not?

MR KOURAKIS:   There was obviously an enormous expansion in terms of the persons to whom it was owed.  It did not necessarily follow that there was an expansion in the content in that there might be reasons to limit the content of the duty owed to persons other than the contracting party, that is, there might have been reason to limit it to the same content, that is, what was owed to the contracting party was the only actual content owed to any third party.  There may be reasons to ‑ ‑ ‑

GLEESON CJ:   Now, of course, the medical practitioners with whom we are concerned here would never have had a contractual relationship with anybody except their employers, having regard to the circumstances in which they operated.

MR KOURAKIS:   Yes.

GLEESON CJ:   So, as it were, if you regard them as health care providers, they are part of the public health care system.

MR KOURAKIS:   Yes, and that seems to have been a large part of the reason for denying a duty of care in the court below.  My submission is simply that if one postulates parents themselves engaging a specialist paediatrician because they wish a particular specialist paediatrician to be able to give an opinion on the matter or if the parent under investigation engages directly a paediatrician for that purpose, then, in my submission, it is not at all as obvious or clear that there would necessarily be any conflict between the content of any duty to the parent engaging the specialist paediatrician and the child.  In both cases the duty is simply to use their professional skills.

GAUDRON J:   To do what?

MR KOURAKIS:   To examine the child.

GAUDRON J:   And form a conclusion as to what?  The reason I ask this is in L’s Case there is not much doubt, reading it quickly, that something had happened to the child and the doctor was able to say so.  Now, a lot of this discussion proceeds on the basis that the doctor is saying, “Abused and X is the suspect” or saying, “Abused in circumstances in which somebody is the suspect”.  It does not seem to me that it is within the medical practitioner’s field to point the finger at anyone.

MR KOURAKIS:   No.

GAUDRON J:   It might be within their field to say, “Yea or nay signs of ‑ ‑ ‑

MR KOURAKIS:   Yes, but the practical effect of deciding that there has been abuse of one sort or another, if that diagnosis is negligently arrived at, may have the consequence of actually pointing to someone and the doctor, as in these cases, is likely to know ‑ ‑ ‑

GAUDRON J:   That is what I do not understand.  How does that happen?

MR KOURAKIS:   It happens because the child is brought to a doctor.  The doctor is told the child is saying that his or her father abused him or her in this particular way.  Is there evidence of it?  Now, in those circumstances, if the doctor negligently diagnoses as a matter of physiology an appearance which is caused by abuse, then that has that direct result.

GAUDRON J:   It does seem to me that we get into troubles here about the imposition of a duty in this area.  The doctor surely cannot be responsible for the history given to him or her?

MR KOURAKIS:   By the presenting parent or Community Welfare officer?

GAUDRON J:   Yes.

MR KOURAKIS:   No, but a doctor might ‑ ‑ ‑

GAUDRON J:   But does that not indicate something about whether there might be a duty in this sort of situation?  The history is outside the doctor’s control.

MR KOURAKIS:   But, your Honour, in these cases where we are simply asking generally as to the arguability of it, it is the case that certainly in the Sullivan pleadings it is pleaded that the doctors held themselves out to have the expertise, by both physiological examination and interviewing the child, to form a diagnosis as to this particular form of abuse.  Now, there may be circumstances ‑ ‑ ‑

HAYNE J:   And its perpetrator?

MR KOURAKIS:   No, I do not know that it went that far in the pleadings, your Honour.  I would have to look for that.  But, your Honours, it might be helpful if I can ask your Honours to go to the discussion of Sir Thomas Bingham in the X and M Case because the way in which he described the duty owed by medical practitioners is one on which the appellants rely.

HAYNE J:   Before we dive into the cases - I know you are desperate to read us great slabs of cases, Mr Kourakis - but can we look for a moment at the pleadings in the Sullivan matter?

MR KOURAKIS:   If your Honour pleases.

HAYNE J:   Page 7 of the appeal book, paragraph 16. What is alleged is that the first of the defendants, who is earlier alleged to be a doctor:

as a result of her examination of and interview with –

the child –

diagnosed that –

the child (a) –

had suffered sexual abuse –

and (b) –

in particular sexual abuse by the plaintiff.

Now, that is the case that was being put forward.  Can we at least conduct the argument by reference to the case that was being put forward?

MR KOURAKIS:   Yes.

GLEESON CJ:   And, in that connection, can you explain the meaning of the word “diagnosis” in relation to the second of those two aspects.  I think I may be able to understand how a doctor can diagnose that somebody has suffered sexual abuse, but I do not understand how a doctor can diagnose that somebody has suffered sexual abuse by a particular individual.

MR KOURAKIS:   Your Honour, they can do so in a number of ways and claim to do so.  One is simply by interviewing the child themselves, which the defendants in this case, working at the Sexual Assault Referral Centre, did.  Can I go back to paragraph 3A on page 2 and that simply pleads that the Department regularly or “routinely referred” children to the doctors at that clinic.  Then to paragraph 3C and in 3C.1 they:

claimed the expertise . . . to conduct comprehensive assessments . . . 

3C.2  claimed to assess child sexual abuse allegations by
3C.2.1 collecting . . . history of the abuse and any behavioural changes;
3C.2.2. a medical examination; and . . . 

3C.3  claimed the expertise to judge –

those matters –

against –

what were thought to be –

the known dynamics of sexual abuse –

and then at 3C.4:

claimed the ability to make a diagnostic/clinical finding that abuse had occurred –

and 3D deals with the communication aspects.

CALLINAN J:   That does not allege that the diagnosis can extend to ascertainment of the culprit.

MR KOURAKIS:   No, those paragraphs do not.  If I can then take, though, your Honours back to the paragraph your Honour Justice Hayne took me to at page 7, in the context of the general pleadings I took your Honours to on page 7, can I take you to paragraph 13 which pleads that:

During the course of the attendance . . . second defendants –

being the doctor and her assistant –

spoke with the wife and obtained information and allegations relating to the possible sexual abuse of –

the child –

by the plaintiff.

GAUDRON J:   You see, that seems to me to be one of the aspects that really runs against the imposition of a duty of care on the medical practitioner simply because ultimately the information is coming from elsewhere.  But there is another thing that worries me about this case.  Everybody now thinks, “Negligence, negligence, negligence”.  I dare say there are good reasons for that, but ultimately you do come to the point where what is in issue is the communication of information or misinformation.  You are in the field of, on one view, defamation.  The law is well developed as to privilege, as to the duty to communicate information.

It would seem to me that if the law of negligence is to extend in the way for which you contend, it has to be in harmony with the law of privilege or, indeed, the duty aspect to communicate information that founds the notion of privilege in defamation.  You have to think that the doctor is under a duty to tell the mother – we will say it is the mother in this case – what conclusion he or she has reached on ordinary principles and, if that be the case, it runs counter to the imposition of a duty owed to the father in this case.

MR KOURAKIS:   In my submission, regulating the expression of the content of the duty and, indeed, the standard of care can achieve the same result that privilege in other defences might give a defendant in a defamation action.  Indeed, the passage that I will go to later, although I am not necessarily over-keen to go to any of the cases, from Sir Thomas Bingham, will put the content of the duty in a way which, in my submission, meets that concern.

McHUGH J:   But it cannot, can it?  I know the House of Lords in Spring v Guardian Assurance Company bypassed the law of defamation and said that you could sue for negligence in providing a reference.  Now, I have criticised that decision in a paper I gave to the Commonwealth law conference a couple of years ago, but what Justice Gaudron said must be right.  It just outflanks the law in defamation.  The doctor has a privilege to give the information.  As long as he does it honestly he cannot be sued and you say, “Well, no, we’re going to sue in negligence.  He was negligent, therefore, we can sue him”.

GLEESON CJ:   And it is even more complicated, Mr Kourakis, perhaps, than that.  There might be certain kinds of diagnostic services that are provided in trade and commerce.  How would your duty of care relate to section 52 of the Trade Practices Act?

MR KOURAKIS:   Your Honours, with respect to all three of those intersections with different areas of the substantive law, each of them serves a particular purpose and, if there is liability on the ordinary application of the principles relating to any one of them, then that is so because each of them, either legislatively or by reason of the common law, are designed to achieve certain objectives.  So, in my respectful submission, the premise that they must coincide and have the same result is not one that I would accept.  Each of those areas of the law have different work to do.

McHUGH J:   The question is:  why should the law of negligence be allowed to continue on its imperial march, sweeping all other causes of action away?  I mean, it just keeps growing and growing and growing.

GAUDRON J:   But there is also a related question.  What is it that founds the notion of privilege in any event?  The duty to communicate, which lies at the heart of privilege, there is some underlying legal rationale for that.  Now, we do not have totally inconsistent rationales and operation.  We have to find what it is and see how it relates to the various matters that you say support a duty of care.

McHUGH J:   And the rationale is that it is for the welfare of society that people should be able to make communications on occasion, such as a doctor/client privilege, provided they do it honestly.

CALLINAN J:   Reciprocity of interest and obligation seems to be present here.

MR KOURAKIS:   Yes, and I do not argue that the appropriate defences would not be available if the action had been brought in defamation here, in circumstances though where the advice to the patient necessarily has the effect on what, in my submission, is an identifiable person or, at least, an identifiable small group of persons who are vulnerable because they have no way of influencing or controlling the ‑ ‑ ‑

GLEESON CJ:   Why does the advice of this character necessarily have an effect on a small identifiable group of people?  Suppose a particular child, if it had been abused, could have been abused by any one of a hundred children who attended the same school as the child or, if you like, by the parents or carers of those children.  It is only because, as is alleged in paragraph 13, somebody told the medical practitioners here, evidently, that if this child had been abused it must have been the plaintiff who did it, that you have a narrow class. But, as has been pointed out to you, it is not within the professed expertise or competence of a medical practitioner to identify the possible range of suspects.

CALLINAN J:   And you have not pleaded that.  In paragraph 3 you do not say that.

MR KOURAKIS:   That they claim the ability to diagnose or to say who it was?

CALLINAN J:   To put their finger on the culprit.

MR KOURAKIS:   Yes.  No, I do not.  But, your Honours, the way in which, in my submission, telling the doctor that the plaintiff was suspected works is that that is then a fact known to the doctor from which the duty of care – or is one fact on which the duty of care is imported or comes into ‑ ‑ ‑

GLEESON CJ:   Now, what if the doctor had been told not, “It looks as though if anybody did it, it’s the plaintiff”, the doctor had been told, “This could have been done by any of the children at the school”.  Would the doctor then owe a duty of care to all the children at the school?

MR KOURAKIS:   In my submission, no, and the differentiating factor is the closeness of the familial relationship between the child and family members like parents and the effect on the child of needless, because of negligent investigation, removal from its family.

GLEESON CJ:   Well, what if they had said, “The most likely suspect is the man next door - Mr Smith, the man next door”?

MR KOURAKIS:   Yes.

GLEESON CJ:   “In fact, he’s got a history of child abuse.  He’s just come out of prison”.  Would the doctor owe a duty of care to Mr Smith?

MR KOURAKIS:   No.

GLEESON CJ:   Well, he is obviously extremely vulnerable.

MR KOURAKIS:   Yes, but, your Honours, those matters are neither necessary nor sufficient.  I appreciate, and the appellant’s case is based around the fact, that it is important that there is no inconsistency between the duty owed to the child and any duty which we seek to impose.  It is for that reason that the claim we make is that the duty extends to others in so far as there is a coincidence between the duty to those and the child.

GAUDRON J:   Why would it be any different with the next‑door neighbour?

MR KOURAKIS:   These questions are questions of fact and degree but, in my submission, a line can be safely drawn between a child and its relationship with family and its relationship with neighbours.

GAUDRON J:   Why?  What is it in point of legal principle or in point of policy considerations that would ‑ ‑ ‑

MR KOURAKIS:   In my submission, it is the nature of the likely harm resulting from removal from the family as opposed to stopping access to a neighbour.

CALLINAN J:   That is a question of quantum only, is it not?  It might have less effect on a neighbour but it still could have a very dramatic effect on a neighbour and it could be very damaging.

MR KOURAKIS:   This is not an area of the law in which it is impossible, in my submission, in any case or category to escape questions of degree, and I accept that that is a question of degree.

GLEESON CJ:   Once you start thinking about the next‑door neighbour, you really do have your attention directed to the way this relates to the law of defamation, do you not?

MR KOURAKIS:   Yes, and I accept that which fell from your Honour Justice Gaudron before and your Honour Justice McHugh on that question.  But, where circumstances are known, like the allegation in paragraph 13, I think it was, of the statement of claim, then the duty of care to the doctor from the point of view of the law of negligence and the content of that duty, in my submission, is to couch the advice in terms appropriate to the judgment form.  I have taken some while getting there but that is the way in which it was expressed by Sir Thomas Bingham in the M Case.

GLEESON CJ:   Perhaps we could have a look at that in the morning, Mr Kourakis?  We will adjourn until 10.15.

AT 4.15 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 15 AUGUST 2001