In State of New South Wales v DC  HCA 22 (14 June 2017), the High Court of Australia has revoked a grant of special leave to appeal against a decision of the Court of Appeal of the Supreme Court of NSW [see DC v State of New South Wales  NSWCA 198].
In reaching its decision, the High Court has held unanimously that the case was not an appropriate vehicle for considering the scope or extent of the duty of care owed by the State of NSW in the exercise of certain powers under its child welfare legislation.
The matter involved two sisters who were subjected to sustained physical and sexual abuse for many years by their stepfather. Eventually, one of the sisters made a complaint in April 1983, about the abuse to the Department of Youth and Community Services (the Department), an executive department of the State of NSW.
The complaint arose under the now repealed Child Welfare Act 1939 (NSW) (the CW Act), which required the Director of the Department once they had been notified that a child had been assaulted or was a neglected child, to take such action as they believed appropriate. Action "which may include reporting those matters to a constable of police". In this case the Department took immediate steps following the complaint but did not exercise the power to report the abuse to the police.
The sisters commenced proceedings in negligence in 2008, in the Supreme Court of NSW. The action was against the State and one of the Department's officers claiming damages for harm caused by continued abuse by their stepfather after the complaint to the Department.
The basis of the sister’s claim was that the Department breached its duty of care to them by not reporting the abuse to the police and at trial the primary judge found that the Department had breached its duty of care to the sisters. The primary judge was, however, not satisfied that the stepfather had continued to abuse the sisters after the complaint. As a result he found that the breach was not a necessary condition of the harm suffered by the sisters.
The Court of Appeal of the Supreme Court of NSW, in a majority decision, allowed an appeal by the sisters, concluding that the abuse continued after the complaint to the Department. Further, the majority held that the Department breached its duty of care to the sisters.
By grant of special leave on 10 February 2017, the State of NSW appealed to the High Court, [see  HCATrans 022].
Special leave was limited to two issues of principle - one relating to vicarious liability of the State; and the other to whether the scope of the duty of care owed by the State of NSW extended to exercising the power to report the abuse of the sisters to the police.
On 10 May 2017, the High Court revoked special leave in relation to a ground of appeal relating to the vicarious liability of the State. The reason for the revocation being that the ground was based on a concession which may not have reflected the true state of the applicable law at the relevant times. Namely, the statute providing for vicarious liability of the Crown in the State of NSW was not in force at the time of the complaint.
In today’s decision (14 June 2017), the High Court has revoked the remaining special leave ground relating to whether the scope of the duty of care owed by the State of NSW extended to exercising the power to report the abuse of the sisters to the police. The State of NSW accepted that there was a duty to use reasonable care in the exercise of the powers under the CW Act. Further, it accepted that there would be cases where the only reasonable exercise of those powers would be to report abuse to the police. The primary judge had made such a finding in this case. The High Court held that, in light of the course taken by the State of NSW, this case was not an appropriate vehicle for considering the scope or extent of the duty of care owed by the State.
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State of New South Wales v DC & Anor  HCA 22 and Summary and Transcript materials.
DC v State of New South Wales  NSWCA 198
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