Previously noted in August 2016 was the decision in DC v State of New South Wales  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: -.
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. However during oral argument, the leave in relation to the vicarious liability point was revoked as there had previously been a concession made at trial, by the State of New South Wales, that did not reflect the true state of the law at the time of the tort (as the relevant legislation was not retrospective).
In reasons for judgment published today, State of New South Wales v DC  HCA 22, the High Court also revoked the grant of special leave to appeal in relation to the primary appeal question, on the basis that the case was not an appropriate vehicle for considering the scope or extent of the duty of care owed by the State of New South Wales in the exercise of certain powers under child welfare legislation.
The State had accepted that there was a duty to use reasonable care in the exercise of the powers under the Child Welfare Act. Further, it accepted that there would be cases where the only reasonable exercise of those powers would be to report abuse to the police. The primary judge had made such a finding in this case.
The High Court held that, in light of the course taken by the State, this case was not an appropriate vehicle for considering the scope or extent of the duty of care owed by the State.