In a society with an increasing litigious culture and media avenues for complaint, schools, churches and other charities may find it difficult to balance their legal duties owed to one party, with their legal duties owed to another party. For example, some of the recent conflicting legal duties we have had to advise our clients on include the following:
- Duties owed under privacy and defamation laws to a party on one hand. On the other hand, the duties owed to another party to protect that party from abuse; and
- Discrimination against a party on one hand. On the other hand, the practical ability to satisfy the duty of care owed to that same party.
The decision of the High Court in Sullivan v Moody  HCA 59 dealt with a problem of conflicting legal duties. While it is not a definitive answer, it does provide some guidance on how to approach this complex issue.
Brief Relevant Facts
The decision was an appeal of two earlier decisions from the Supreme Court of South Australia. Both appeals involved situations where a child (or children) had been examined by medical practitioners and/or social workers, and appeared (in the opinion of the examiners) to be victims of sexual abuse.
In both appeals, the suspected perpetrator of the abuse was the father. These conclusions were reported to the police, and in one case, charges were laid against the father.
Upon investigation, the charges were dropped and no further action was pursued against either father. However, as a consequence of the allegations and charges, both fathers allegedly suffered “shock, distress and psychiatric harm, and consequential financial loss.”
The fathers (collectively, “the Applicants”) commenced their separate proceedings, seeking damages, against the medical practitioners, social workers, their employers and the State of South of Australia (collectively, “the Respondents”).
The appeal was brought on the submission that the Respondents:
“owed a duty of care to the Applicants to carry out their 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.” (Paragraph 7, emphasis added)
It was further submitted that the Respondents were negligent in their examination, diagnosis and reporting of the alleged child abuse.
Legislation and Case Law Considered
As the cases originated in South Australia, the High Court considered the Community Welfare Act 1972 (SA). Section 25 of the Community Welfare Act 1972 (SA) stated that a person dealing with a child under the provisions “shall regard the interests of the child as the paramount consideration,” and also “promote…a satisfactory relationship…within his family.”
Furthermore, there were extensive provisions from the Community Welfare Act 1972 (SA), referenced in paragraph 21, that if a medical practitioner, nurse, psychologist, social or welfare worker suspects on “reasonable grounds” that an offence has been committed; they were obliged to notify an officer of the Department of their suspicion.
Another general provision of the Community Welfare Act 1972 (SA) provided that such workers shall not incur civil liability for any act or omission done in good faith under their responsibilities.
The High Court also returned to consider the “first principles” of the Tort of Negligence by considering landmark cases such as Donoghue v Stevenson  AC 562, Hill v Chief Constable of West Yorkshire  AC 53 and Yuen Kun Yeu v Attorney-General of Hong Kong  AC 175.
The Applicants’ Argument
Counsel for the Applicants argued that the Applicants had been injured as a result of the Respondents’ negligence in “investigating and reporting upon the allegations”. In making this claim, the Applicants submitted it was reasonably foreseeable they would suffer the harm alleged.
It was further submitted that the Community Welfare Act 1972 (SA) obliges those dealing with children to consider the familial as well as the personal interests of the child. It was argued that the Respondents breached this obligation by negligently forming their opinion and causing a “likely disruption of the parent/child relationship… directly against the interests of the child”.
The High Court stated in paragraph 53:
“There are cases, and this is one, where to find a duty of care would so cut across other legal principles as to impair their proper application.”
With mind to these considerations, His Honour determined that a duty was not owed, stating in paragraph 62:
“[The Community Welfare Act 1972 (SA)] required the respondents to treat the interests of the children as paramount. Their professional or statutory responsibilities involved investigating and reporting upon, allegations that the children had suffered, and were under threat of, serious harm. It would be inconsistent with the proper and effective discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who were suspected of being the sources of harm. The duty for which the appellants contend cannot be reconciled satisfactorily.” (emphasis added).
The over-arching consideration was the professional and statutory obligations of the Respondents, which include treating the interests of the children as paramount. The High Court took the view that this over-arching duty was irreconcilable with the alleged duty of care to the Applicants. This was particularly more so where “examination of a child alleged to be a victim of abuse does not allow the examiner to form a definite opinion about whether the child has been abused, only a suspicion that it may have happened.”
The High Court concluded that the alleged duty of care for which the Applicants contended did not exist, and the appeal should be dismissed with costs.
Our Concluding Remarks
Because of the sensitive nature of these complex issues, schools, churches and charities are exposed to great risk. Most disputes in this regard have the capacity to be very costly to all parties involved.
The complexity and diverse set of facts in each of these circumstances means that each situation has to be dealt with on its own set of facts. However, our “take home message” from Sullivan v Moody  HCA 59 would be for the leadership and boards of schools, churches and charities that “paramount considerations” may mean one duty is higher than another. This will often be the case for the benefit of children. Written legal advice is of course also a good safe-guard.
For more information regarding Conflicting Legal Duties
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