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  • 16Jun

    High Court revokes special leave in long running abuse case against the State of NSW

    The High Court has revoked special leave in relation to an appeal by the State of New South Wales as to duty of care and the reasonable exercise of that duty, in a long-running compensation claim by two sisters arising out of the long-term sexual and physical abuse by their stepfather between 1974 and 1983.

    Background

    TB and DC were both child victims of long-term sexual and physical abuse by their stepfather between 1974 and 1983. The sisters both attended Bankstown High School. They confided in a teacher at the school about the abuse, and the teacher notified the Department of Youth and Community Services of the abuse on 20 April 1983. The sisters were “apprehended” by the District Officer on 21 April 1983, on the basis that they were neglected children. They were taken to a shelter. On 15 September 1983, the District Officer spoke to the stepfather, who admitted to sexually assaulting both TB and DC. In 1984, by order of the Children’s Court, TB and DC were placed in foster care. The Department did not report the abuse to the police.

    The stepfather was ultimately prosecuted in 2005 on an indictment containing nine offences; four of the counts related to TB and five to DC. The stepfather eventually pleaded guilty to all charges and was sentenced to 10 years’ imprisonment, with a non-parole period of four years.

    Initial proceedings

    TB and DC commenced proceedings in 2008, 25 years after the events occurred, against the State of New South Wales (the Department of Youth and Community Services) and the District Officer involved, Caroline Quinn. The proceedings were summarily dismissed in 2009 as showing no reasonable cause of action. An appeal from that decision to the New South Wales Court of Appeal was allowed on 22 February 2010. On 1 March 2012, after a three-day hearing, his Honour Harrison J made orders permitting the proceedings to continue. The hearing proceeded before his Honour Campbell J.

    His Honour Campbell J found that in all likelihood the Department did not notify the police of the abuse, but that in any event his Honour was not satisfied on the balance of probabilities that the stepfather continued to abuse TB and DC after it was reported to the Department. His Honour found that the Department owed each of TB and DC a duty to use reasonable care in the exercise of its powers, and that the Department breached its duty of care by omitting to notify the police of the abuse, which it was required to do. However, on the basis of the finding that the abuse did not continue after the Department was notified, his Honour found that the breach by the Department was not a necessary condition of the harm suffered by TB and DC.

    On appeal

    TB and DC appealed the primary judge’s findings. The court found that, contrary to the primary judge’s findings, the evidence did establish that the abuse continued after the notification. On that basis, the Department breached its duty in failing to protect TB and DC from further abuse, and notification of the abuse to the police was required in order to discharge the duty of care. Accordingly, the court upheld the appeal and awarded damages of $939,000 to TB and $536,000 to DC.

    High Court

    By grant of special leave, the State appealed to the High Court.

    On 10 May 2017, the High Court revoked special leave in relation to one of the grounds of appeal, namely the vicarious liability of the State.

    The State later conceded that there was a duty, and further accepted that there would be cases where the reasonable exercise of powers under the relevant legislation would be to report abuse to the police, which was in accordance with the primary judge’s findings. On that basis, the High Court has now revoked the special leave in relation to the remaining ground of appeal, namely as to the scope of the duty of care owed by the State and whether it extended to exercising the power to report the abuse to the police.

    Accordingly, the High Court revoked special leave: State of New South Wales v DC & Anor [2017] HCA 22

    For more information on the above contact Joe Bonura on 02 4626 5077 or jbonura@marsdens.net.au

    This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au

    The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

Marsdens Offices