Sullivan v Moody

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gaudron,McHugh,Hayne,Callinan JJ
• Judgment Date: 11 October 2001
• Neutral Citation: [2001] HCA 59,2001-1011 HCA D
• Court: High Court
• Docket Number: A21/2001
• Date: 11 October 2001

Thomas Patrick Sullivan

Appellant

and

Margaret Catherine Moody & Ors

Respondents

Colin Leslie Thompson

Appellant

and

Aileen Forsyth Connon & Ors

Respondents

[2001] HCA 59

Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ

A21/2001

A23/2001

HIGH COURT OF AUSTRALIA

Sullivan v Moody Thompson v Connon

Torts — Negligence — Duty of care — Appellants suspected of sexually abusing their children — Alleged negligence of respondents in investigating and reporting on allegations — Appellants claimed that they suffered shock, distress, psychiatric injury, and consequential personal and financial loss as a result of the accusations — Whether medical practitioners, social workers and departmental officers involved in investigating and reporting upon allegations of child sexual abuse owe a duty of care to suspects.

Torts — Negligence — Duty of care — Proximity — Inapplicability of the Caparo test in Australia.

Community Welfare Act 1972 (SA), ss 25, 91, 92, 235a.

Representation:

C J Kourakis QC with H M Heuzenroeder for the appellant (instructed by Margaret J Minney)

A J Besanko QC with D C Lovell for the first to fifth respondents (instructed by Fisher Jeffries)

B M Selway QC Solicitor-General for the State of South Australia with M W Mills for the sixth respondent (instructed by Crown Solicitor for South Australia)

ORDER

Appeal dismissed with costs.

1 Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ. These two appeals were heard together. In each case the appellant's action for damages, commenced in the Supreme Court of South Australia, was struck out by a Master of the Court on the ground that the Statement of Claim failed to disclose a cause of action. In the case of Thompson, an appeal to the Full Court of the Supreme Court of South Australia was dismissed following fully reasoned judgments by the members of the Full Court (Doyle CJ, Duggan and Gray JJ) 1. In the later appeal of Sullivan it was accepted, subject to one qualification, that the decision in Thompson meant that the appeal must fail, and it was dismissed 2. The qualification concerns one defendant in the action, who was regarded as being in a position different from that of the other defendants. He is not a party to the appeal to this Court.

2 The course that was taken in the Supreme Court of South Australia was influenced by the consideration that, in 1996, in a case that had gone to trial, the Full Court of the Supreme Court of South Australia had dismissed a plaintiff's appeal in circumstances that were conceded to be indistinguishable from those of Thompson and Sullivan. That case was Hillman v Black3. The Full Court decided in Hillman v Black that the defendants did not owe a duty of care to the plaintiff, upholding the decision of the trial judge. That decision meant that, if the present cases had gone to trial, failure at first instance was certain, and failure in the Full Court was very likely. In the light of authority binding him, the Master's decisions were inevitable. In Thompson, the appellant endeavoured to persuade the Full Court that, having regard to later authority, it should depart from Hillman v Black, but was unsuccessful.

3 The concession that Hillman v Black is indistinguishable means that the outcome of the present appeals does not turn upon questions as to the standard of persuasion which a defendant ordinarily needs to satisfy in a strike out application 4. That case went to trial. The events in issue occurred at about the same time as the events in Thompson and Sullivan, the relevant statutory regime was the same, and, except for the identity of the doctors and social workers

involved, and other matters of immaterial detail, the same allegations are made. If no duty of care was owed in Hillman v Black, none was owed in these two cases. For practical purposes, these appeals are challenges to the decision in Hillman v Black, and although they are to be decided by reference to the allegations in the pleadings, it is not argued that those allegations are relevantly different from what was alleged, and found, in the earlier case

The facts in Thompson

4 The plaintiff is the father of three young boys. Each of the first and second defendants is a medical practitioner employed at the Sexual Assault Referral Centre at the Queen Elizabeth Hospital, Woodville, South Australia. The third defendant is the hospital. The fourth defendant, the State of South Australia, operates the Department of Community Welfare. The plaintiff is uncertain whether the first two defendants were employed by the third or the fourth defendant.

5 During 1986, the plaintiff's wife, on separate occasions, attended the Sexual Assault Referral Centre with the boys. Doyle CJ noted that it was common ground that the medical practitioners who examined the boys did so at the instigation of a person or persons employed by the Department of Community Welfare. One of the boys was examined by the first defendant. The other boys were examined by the second defendant. Both the first and second defendants concluded, and reported to the Department of Community Welfare, that the boys appeared to have been sexually abused.

6 Further investigations were carried out by officers of the Department of Community Welfare, who also concluded that there had probably been sexual abuse. They, in turn, referred the matter to the police. The police charged the plaintiff with sexual offences. Those charges were ultimately dropped, but, in consequence of the allegations and charges, the plaintiff suffered shock, distress and psychiatric harm, and consequential personal and financial loss.

7 The plaintiff alleges that each of the first and second defendants (the medical practitioners at the Sexual Assault Referral Centre) ‘owed a duty of care to the plaintiff to carry out her duties and responsibilities and in particular the examination and diagnoses of persons and in particular children suspected of having been sexually abused … with due care, skill, discretion and diligence.’ (The introduction of the concept of discretion was capable of causing some confusion, but it played no separate role in argument). In a number of respects, those defendants are said to have acted negligently in their examination, diagnosis, and reporting. The third and fourth defendants are claimed to be vicariously liable for the negligence of the medical practitioners.

8 The State of South Australia is also alleged to have owed the plaintiff a duty to carry out its responsibilities in relation to the investigation of sexual abuse of children with due care, skill, discretion and diligence, and the officers of the Department of Community Welfare who investigated the matters are alleged to have behaved negligently.

9 Doyle CJ summarised the case as follows:

‘In short, it is a case in which the plaintiff alleges that the first and second defendants carelessly reached a conclusion that the plaintiff's children had been or probably had been subjected to sexual abuse, and reported that conclusion to members of the Department, in circumstances in which the plaintiff would be regarded as the probable or possible perpetrator of that abuse. …

The State is also alleged to be liable on an independent basis. It is claimed that the employees of the Department owed the plaintiff a duty of care in the course of their employment. …

It is alleged that employees … gathered and used information about possible sexual abuse of the children without making adequate inquiry as to those facts, without exercising proper care and without following appropriate procedures for such cases. … It is alleged that the employees of the Department failed to establish appropriate protocols for the diagnosis of sexual abuse of children. It is alleged that they failed to establish proper procedures to validate diagnoses of sexual abuse ….’

The facts in Sullivan

10 The plaintiff is the father of a young daughter. The daughter said some things to her mother (the plaintiff's wife) and her grandmother, which led the mother to contact the Crisis Care branch of the Department of Community Welfare. She was referred by the Department to the Adelaide Children's Hospital, which in turn referred her to the Sexual Assault Referral Centre at the Queen Elizabeth Hospital.

11 The first defendant was a medical practitioner employed at the Sexual Assault Referral Centre. She examined the daughter and expressed the conclusion that the daughter had suffered sexual abuse. The second and third defendants are social workers who were employed at the Sexual Assault Referral Centre, and Adelaide Children's Hospital, respectively. The plaintiff is uncertain whether the employer of the first and second defendants was the Queen Elizabeth Hospital or the State of South Australia.

12 For presently relevant purposes, the medical practitioner, and the social workers, are alleged to have acted negligently in examining the child and investigating the possibility of sexual abuse. No criminal charges were laid; but the allegations were believed by the plaintiff's wife. They resulted in breakdown of the marriage, and were pursued in Family Court proceedings. They were resolved, in that Court, in favour of the plaintiff.

13 Each of the first, second and third defendants is alleged to have owed a duty to the plaintiff to exercise reasonable care in the conduct of the investigation of allegations of sexual abuse of the daughter. The Queen Elizabeth Hospital and the State of South Australia, in the alternative, are said to be vicariously liable for the negligence of the first and second defendants. The Adelaide Children's Hospital, or alternatively the State, is said to be vicariously liable for the negligence of the third defendant.

14 The State of South Australia is also alleged to have owed the plaintiff a duty of care to exercise reasonable care...