Previously noted in August 2016 was the decision in DC v State of New South Wales [2016] NSWCA 198, where by majority (Ward JA, Sackville AJA) the court held that the duty of care owed to the appellants was a duty in the exercise of the statutory powers under the Child Welfare Act to take all reasonable steps in the circumstances of the appellants’ case to protect them from the risk of further physical and sexual abuse. Notification of the abuse to the police was required in order to satisfy this duty: [275]-[276].

On 10 February 2017, the High Court (Bell, Gageler & Gordon JJ) granted special leave for the State of New South Wales to appeal that decision. The grant of leave was limited to two issues of principle,  outlined in the opening of counsel for the appellant in the terms below.

Postscript: During oral argument, the leave in relation to the vicarious liability point was revoked (10 May 2017).

The first is where legislation confers powers that involve discretionary choices among available options, and after consideration one range of options but not another is chosen, does the failure to choose that other option give rise to a breach of the common law duty sounding in negligence.  The second question – where legislative powers are conferred upon a head of a department to take steps for the protection, as here of young persons, can the State be held vicariously liable in the absence of a finding of breach of duty or any relevant duty by any officer.

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