The matter involved two sisters who were subjected to physical and sexual abuse by their stepfather over a period of time. Eventually in April 1983, one of the sisters made a complaint about the abuse to the New South Wales Department of Youth and Community Services (“the Department”).
The complaint was to be managed per the guidelines set out in the Child Welfare Act (1939) (“the Act”). The Act required the Department to take appropriate action once they had been notified of abuse against a child. It was noted that appropriate ‘action’ may include reporting the abuse to the police. Whilst the Department took action to respond to the complaint (such as by completing an investigation and removing the sisters from the home) they did not take the step of reporting the complaint to the police.
NSW Supreme Court
In 2008, the sisters commenced civil proceedings against the State of New South Wales (“the State”) for negligence by the Department. They specifically argued that the Department was negligent for not reporting the abuse to the police as they continued to be victim to further abuse after their complaint.
At trial, the judge agreed that the Department had breached its duty to the sisters by failing to report the abuse to the police. However, they did not accept that further abuse had occurred after the complaint. As a result, the Court determined that the Department’s failure to report the abuse to the police had not resulted in the sisters suffering harm.
NSW Court of Appeal
The Court of Appeal allowed an appeal by the sisters and determined the Department had breached their duty by failing to report the abuse to the police. They also made a finding that the abuse by the stepfather had continued after the complaint.
Special Leave to High Court
The State then sought to appeal the matter to the High Court. They sought to appeal the matter on two grounds. The first was whether the State would be responsible for the actions of their employee/s when they failed to report the abuse to the police. The second issue was whether the State’s duty required them to report the abuse to the police.
The High Court dismissed the State’s arguments regarding vicarious liability (that is, their responsibility for their employee/s actions) as they considered their arguments did not reflect the true state of the law at the relevant time.
High Court Decision
On 14 June 2017, the High Court dismissed the State’s remaining argument as to whether their duty required them to report the abuse to the police. It was envisaged the State’s duty required them to take all reasonable steps to protect the sisters from further abuse. The State conceded that there would be cases where the only reasonable exercise of power (such as in these circumstances) would be to report the abuse to the police.
Do you need help?
We recognise that survivors of childhood abuse are strong individuals who deserve the right to seek compensation for the harm they have suffered. We also understand that it can be difficult to know which pathway is the right one to choose. It is important to speak with a lawyer who is experienced in institutional abuse matters prior to accepting any offer of settlement.
Turner Freeman has a number of lawyers located throughout Australia with experience in institutional abuse. We invite survivors to contact our Sydney office on (02) 8222 3333 for a confidential and obligation free discussion to help inform them as to their rights and legal options.