In Issue
- Whether the duty of care owed by a statutory authority in the exercise of its statutory powers extended to include notification of child abuse to the police.
The Background
In 2008, sisters TB and DC (the appellants), commenced proceedings against the State of New South Wales in respect of sexual and physical abuse by their stepfather. The abuse was reported to the Department of Youth and Community Services (the Department) in April 1983. The appellants contended that the Department breached the duty of care owed to them by not reporting the abuse to the police.
Relevantly, at the time of the abuse, the powers and obligations of the Department were governed by the Child Welfare Act 1939 (NSW) (the Act). Under s148B of the Act, on notification of matters involving the abuse and neglect of children, the Department was required to undertake an investigation. Section 148B(5) of the Act further provided that in circumstances where the Department was satisfied that abuse had occurred, reporting to the police was a possible but not mandatory course of action.
The Decision at Trial
At first instance, despite the court finding that the Department owed a duty to the appellants to take reasonable care in the exercise of its powers conferred by s148B (5) of the Act, and that the scope of that duty encompassed an obligation to report the abuse to the police, the Department was successful as the court was not satisfied that the abuse continued in the post-April 1983 period (after notification of the complaint).
The Issues on Appeal
The issue before the Court of Appeal was whether the abuse continued in the period post-April 1983. The Department challenged the trial judge’s finding that the scope of the Department’s duty extended to a duty to report to the police.
The Decision on Appeal
By majority, the Court of Appeal found that the abuse had continued in the period post April 1983. In line with the trial judge’s reasoning, the majority held that the duty of care owed to the appellants was a duty in the exercise of statutory powers under the Act, and included a requirement to notify the police of the abuse.
Basten JA, in dissent, found that the Department’s duty did not extend to an obligation to report to police the allegations of criminality. His Honour deemed that the powers conferred by s148B of the Act to report to police were discretionary in nature.
Implications For You
The decision serves as a firm reminder for statutory authorities to ensure they are cognisant of the scope and content of the duty of care conferred by relevant legislation.
