New South Wales Court of Appeal CITATION : TC by his tutor SABATINO v THE STATE OF NEW SOUTH WALES & ORS [2001] NSWCA 380 FILE NUMBER(S) : CA 40336/00 HEARING DATE(S) : 23, 24, 25, 26, 27 July 2001 JUDGMENT DATE : 31 October 2001 PARTIES : TC by his tutor KRIS SABATINO v THE STATE OF NEW SOUTH WALES & ORS JUDGMENT OF : Mason P at 1; Priestley JA at 165; Beazley JA at 168 LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT CLD 11844/93 FILE NUMBER(S) : LOWER COURT Studdert J JUDICIAL OFFICER : COUNSEL : Appellant: A B Shand QC/ R R I Harper Respondent: F S McAlary QC/ G W Moore SOLICITORS : Appellant: Heidtman & Co Respondent: Crown Solicitor CATCHWORDS : Negligence - Negligent omission - delay in appointing doctor to investigate allegations of sexual abuse - breach of duty - no causal connection with plaintiff's psychiatric disorder - Betts v Whittingslowe - onus of proof - legal onus remains with plaintiff throughout - shift of evidentiary onus. (D) Batiste v State of Queensland [2001] QCA 275 EM Baldwin & Son Pty Ltd v Plane (1999) AustTortsR 81-499 Betts v Whittingslowe (1945) 71 CLR 637 Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307, Bennett v Minister of Community Welfare (1992) 176 CLR 408 Carmarthenshire County Council v Lewis [1955] AC 549 Chappel v Hart (1998) 195 CLR 232 CASES CITED: Derrick v Cheung [2001] HCA 48 Desmond v Cullen [2001] NSWCA 238. McGhee v National Coal Board [1972] 3 AllER 1008 Naxakis v Western General Hospital & Anor (1999) 197 CLR 269 Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Wallaby Grip (BAE) Pty Ltd (in liq) v Macleay Area Health Service (1998) 17 NSWCCR 355 Williams v The Minister Aboriginal Land Rights Act 1983 and the State of New South Wales [2000] NSWCA 255 Wyong Shire Council v Shirt (1980) 146 CLR 40 DECISION : 1. Notice of cross appeal struck out. 2. Appeal dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40336/00 SC 11844/93 MASON P PRIESTLEY JA BEAZLEY JA 31 October 2001 "TC" by his tutor KRIS SABATINO v THE STATE OF NEW SOUTH WALES "TC" is the pseudonym of the plaintiff/appellant, born on 10 February 1980. At trial, TC alleged negligence against the Department of Youth and Community Services (YACS) in relation to the way in which YACS followed up complaints of sexual and physical abuse said to have occurred while TC was in the care of his mother (HM). The complaints had been made by TC's father (HF) during the first five years of TC's life. The facts are set out in detail in the judgment of Studdert J in TC v State of New South Wales [2000] NSWSC 292. Studdert J ordered separate trials on issues of liability and causation. His Honour found that the State through YACS owed a relevant duty of care in the manner of exercise of its statutory duties under s148B(5) of the Child Welfare Act 1939, and that this duty had been breached in two respects. These two incidents were the "cot-tying" allegations in 1983 and the delay in relation to appointing Dr Waters following allegations of sexual abuse. However, in the separate trial on causation issues, Studdert J found that there was no causal link between the breaches and TC's psychiatric disorder. In the Court of Appeal the appellant submitted that Studdert J erred in his findings on causation. The respondent defended Studdert J's approach and conclusions as to causation, but contended that his Honour erred in his findings as to duty of care and breach. Held, by Mason P, Beazley JA agreeing: 1. The trial judge's finding in relation to breach with regard to following up the further evidence relating to the cot-tying incident was incorrect. YACS' statutory duty to investigate did not convert it into a detective agency. Derrick v Cheung [2001] HCA 48 (cited). Per Mason P, Beazley & Priestley JJA agreeing: 2. The trial judge's finding in relation to delay in dealing with the sexual abuse allegation was correct. 3. The trial judge's conclusion that the breaches had no causal impact was correct. 4. It remains the law that the legal onus of proof rests with the plaintiff throughout. Discussion of principles flowing from Dixon J's discussion in Betts v Whittingslowe (1945) 71 CLR 637. Bennett v Minister for Community Welfare (1992) 176 CR 408; Chappel v Hart (1998) 195 CLR 232; Naxakis v Western General Hospital (1999) 73 ALJR 782 (discussed). 5. The Betts principle cannot be invoked to prove damage as distinct from causation. 6. Unnecessary to decide duty of care. ORDERS: 1. Notice of cross appeal struck out. 2. Appeal dismissed with costs *************** THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40336/00 SC 11844/93 MASON P PRIESTLEY JA BEAZLEY JA 31 October 2001 "TC" by his tutor KRIS SABATINO v THE STATE OF NEW SOUTH WALES JUDGMENT 1 MASON P: This appeal challenges a verdict for the defendant with judgment entered in favour of the State. There is a cross appeal that raises issues appropriate for a notice of contention. 2 "TC" is the pseudonym of the plaintiff/appellant. He was born on 10 February 1980. He was caught in the middle of a bitter tug of war between his estranged parents and suffered a psychologically bruising childhood. Whether and to what extent his continuing difficulties are attributable to external sources, including a genetic bi-polar disorder, remain hotly disputed. But it is not disputed that he has suffered and continues to suffer extensive psychiatric disorder. His claims in these proceedings were advanced by tutors on his behalf. The appointment of his present tutor was confirmed by Simos J on 23 January 1998, notwithstanding that he had by then attained his 18th birthday (TC v State of New South Wales, Common Law Division, Simos J unreported 23 January 1998). Overview of proceedings at trial 3 TC alleged negligence against various officers of the Department of Youth and Community Services (YACS) in relation to the way in which YACS followed up complaints of physical and sexual abuse said to have occurred while TC was in the care of his mother (HM). The complaints had been made by TC's father (HF) during TC's first five years of life. 4 At an early stage in the trial Studdert J ordered that the plaintiff and his two parents be referred to by these pseudonyms. No party to the appeal sought to vary this regime. 5 The plaintiff's father (HF) pressed his allegations of abuse in numerous complaints to YACS between 1980 and 1985; bitter and protracted proceedings against HM in the Family Court between May 1982 and 1986; and in the present proceedings. HF made these proceedings a vehicle for maintaining the allegations, because he was TC's tutor from their inception in 1993 until he was removed by order of Sperling J on 7 November 1997 (Blue 2096). In recording this, I am not suggesting impropriety on HF's part: his role as TC's tutor and the reasons why he was removed from that position are not matters at issue in the present appeal. 6 Initially five defendants were sued: the State of New South Wales; Marrickville Women's Refuge Ltd; Mrs Pamela Dahl-Helm, a refuge worker who was granted interim custody of TC for a period in 1982; Dr Brent Waters, a consultant psychiatrist; and Mr John McCourt, a solicitor appointed to represent TC in the Family Court proceedings. 7 The claim against the third defendant Mrs Dahl-Helm was never pressed. 8 The claims against the second, fourth and fifth defendants were settled on 19 December 1997, not long after HF had been removed as tutor and well before the end of a lengthy trial which spanned 66 days between October 1997 and March 2000. 9 The claim against the State was based solely on acts of negligent omission on the part of officers of YACS. These concerned failure in the due exercise of statutory powers to investigate and take appropriate action in relation to matters notified. 10 The principal judgment given on 11 February 1999 dealt with the issues arising in a separate trial on the principal issues going to liability, ie duty and breach (see TC v State of New South Wales [1999] NSWSC 31). This will hereafter be referred to as "JL". Many of the breaches alleged against YACS were rejected or found not proven on the balance of probabilities. 11 The learned primary judge found that the State through YACS owed a relevant duty of care in the manner of exercise of its statutory duties under s148B(5) of the Child Welfare Act 1939. He also found that the duty had been breached in two respects. (These conclusions are challenged by the State in its cross appeal, although a notice of contention would have been the appropriate process given that the State does not seek to displace the verdict and judgment in its favour.) 12 Following judgment on liability, Studdert J ordered a separate trial of causation issues. That took place on 13 and 14 March 2000 and judgment was given on 12 April 2000 (TC v State of New South Wales [2000] NSWSC 292). This will hereafter be referred to as "JC". It was found that there was no causal link between the established breaches and TC's psychiatric disorder which (for the purpose of the hearing on causation) was assumed to have flowed from certain acts of sexual abuse (see JC §§2, 66-67). That sexual abuse was found to have been by a female or females some time prior to May 1984 (JL §60). The unidentified female did not include HM, because there was a finding that HM was not guilty of sexually abusing TC nor did she participate in any sexually inappropriate behaviour with anyone else in the presence of TC (JL §§210, 61-72). 13 The judgment as to liability is extensive and readily accessible through the internet. The primary facts found by Studdert J are not disputed by the appellant. Accordingly, the summary which follows is not intended to depart from the trial judge's conclusions of primary fact. Citation of portions of the judgment permits more detailed reference, if necessary. The plaintiff and his family 14 TC's parents had married in Syria in May 1978. HM was only 15½ years old at the time and she was unable to speak any English when she came with her husband to Australia in October 1978. The marriage was troubled from the start, due in part to the couple's arduous lifestyle (JL §15). 15 During her pregnancy, HM was diagnosed to be suffering from a condition of manic depressive psychosis. This chemical disorder was responsive to treatment, provided appropriate medication was taken (JL§16). 16 From the time TC came home from hospital there was friction between his parents, much of it surrounding his care. HM left HF for the first time in November 1980. On 21 November she obtained an order for the custody of TC. Following these proceedings HM and HF became reconciled, but the reconciliation did not last. 17 There were proceedings between the parents in the Children's Court at an early stage (JL §19). 18 After their final separation in February 1982 HM and HF were continually engaged in Family Court litigation over the custody and care of TC until the middle of 1986 (see JL §§18-27). 19 A short chronology will help set the scene. Details of many more applications in the Family Court than are summarised below may be found at Blue 1282-1292: 10 February 1980 Birth of TC November 1980 HM left HF for the first time and went to a refuge at Como. HM obtained an interim custody order from the Sutherland Court of Petty Sessions. HF contacted Dulwich Hill office of YACS and complained that HM was psychiatrically unable to care for TC. December 1981 YACS home visit: parents reconciled at the time. 28 March 1982 Parents finally separated: HM went to Marrickville Women's Refuge (with TC). April 1982 Disputed cot tying incident. 28 April 1982 Proceedings in Children's Court where HM sought custody of TC and maintenance. Interim order restraining HF from assaulting, molesting etc. Later that day HM was seriously injured in a fire bomb explosion. She was taken to Royal Prince Alfred Hospital where she remained until August 1982. 3 May 1982 HF applied to Family Court for custody of TC. However, Dovey J granted interim custody to Mrs Dahl-Helm, an employee at the refuge, with access to HF. August 1982 HM returned to women's refuge. 25 August 1982 Dovey J discharged interim order for care and control to Mrs Dahl-Helm: HM to have care and control of TC with access to HF three days per week. October 1982 HF applied for custody: expedited hearing ordered. November 1982 HM and TC moved to flat. 2 February 1983 YACS was presented with material from HF and Mrs Denley which Studdert J found to have warranted certain action which was not taken, in breach of YACS' duty of care (JL §247). August 1983 Decrees nisi and absolute for dissolution of marriage. 30 August 1983 After a contested hearing in Family Court, Pawley J awarded joint custody to HF and HM, with HF to have TC from Friday to Sunday and HM for the remainder of the week (Blue 1023-30). Thereafter, HF refused to return TC after access on six occasions. 20 January 1984 Pawley J ordered HM and HF to have joint guardianship, and gave custody to HM with access to HF. 7 May 1984 HF told Ms Harris, psychologist at Children's Hospital that TC had asked him to "suck his cock" , and told him that HM and her friend did this. 11 May 1984 Child at Risk Notification sent by Ms Harris to YACS re possible sexual abuse. 12 May 1984 Dr Goldberg assessed TC and concluded that he had been sexually abused by an experienced female person. 14 May 1984 Family Court ordered separate representation for TC (Mr McCourt). 30 May 1984 Family Court (Ellis J) dismissed HF's application for interim custody and guardianship and ordered that TC be surrendered to HM. 27 July 1984 HM applied unsuccessfully for custody and interim custody. 21 September 1984 YACS was permitted to intervene in Family Court proceedings. 19 December 1984 YACS' application expedited. 12 April 1985 Ellis J refused YACS' application for interim custody for purpose of assessment, ordering additional departmental supervision over HM (Blue 1158). 31 July 1986 Bulley J awarded HF sole guardianship and custody following assault on TC by HM's new husband (Blue 1281ff). The role of YACS under the Child Welfare Act 1939 20 As indicated, HF made numerous complaints to YACS, alleging physical ill treatment, verbal abuse and (latterly) sexual abuse by HM. He pressed YACS to take action to remove the child from his mother's custody and/or to intervene in his interest in the Family Court proceedings that he had commenced in April 1982. HF backed up his individual approaches to YACS' officers by making representations to the shadow minister, Mrs Rosemary Foot. He was perfectly entitled to do so. 21 The Child Welfare Act 1939 was the governing statute for so long as HM had the care of TC. The relevant provisions were conveniently summarised by Studdert J (JL §§122-150): 122 Part II identifies the authority responsible for the administration of the Act. The Act empowered the appointment of a Director as the permanent head of the Department of Youth and Community Services and "such other officers and employees as are necessary for the administration of this Act" (s 5). It made provision for the Minister to become the guardian of any young person who became a ward (s 9) and charged the Minister with the care of all wards except in periods defined in s 10. Section 10A empowered the Minister to delegate to any specified officer of YACS the exercise or performance "of such of the powers, authorities, duties or functions conferred" under the Act. 123 Part III provided for the establishment of Children's Courts. 124 Part IV provided for the establishment of depots, homes and hospitals. 125 Part V defined the Minister as being the authority to admit a child to State control and thereafter to make any of the provisions contemplated in s 23 in relation to such a child. These included providing for his accommodation and maintenance, the payment of foster parents, the boarding out of a ward and the approval of people applying for custody of wards. 126 Part VI empowered the Minister to grant allowances for the support of destitute children and young people in the circumstances identified in that Part. 127 Part VII provided for the licensing of child care centres, children's depots, homes and hostels and private foster homes. 128 Part VIII concerned lying-in homes, that is homes where women were received for confinement. 129 Part IX made certain provisions for intellectually handicapped persons. 130 There is no need for present purposes to refer to any of the detail of Parts VII, VIII or IX. 131 Part X provided for the establishment of institutions and schools for young persons and for them to be controlled by the Minister (ss49 and 50). Sections 53 and 54 empowered the Minister to determine in what particular institution a child might be placed and to make decisions for the transfer of a child from one place to another and for the discharge of a child from an institution and to restore the child to the custody of his parent or some other suitable person. 132 Part XI was concerned with the punishment of inmates in institutions and does not call for examination here. 133 Neither do Parts XII or XIII which deal with the maintenance of children by their relatives and the employment of children. 134 Part XIV made provision for the committal inter alia of neglected children. Section 72 defined a "neglected child" as including a child: "(d) who…is ill-treated or exposed… (j) who, in the opinion of the court, is under incompetent or improper guardianship… (n) who is falling into bad associations or is exposed to moral danger…" 135 Section 73 empowered a justice "upon oath being made before him by an officer authorised by the Minister in that behalf…" to summons any child to appear before the court if, after due inquiry, he believes that child to be neglected. 136 Section 74 empowered any officer authorised by the Minister to apprehend a child for whose apprehension a warrant had been issued under s 73, even if that person did not have the warrant in his possession. 137 Section 78 provided that where a child had been apprehended as a neglected child he was to be taken to a shelter and thereafter brought before the court as soon as practicable. 138 Section 81 dealt with the procedure when the child was brought before the court. This section and ss82 and 83 which concern the powers of the court do not require close reference at this particular point although I will return to them later when addressing the negligence alleged against the defendant in failing to bring TC before the Children's Court. 139 It is appropriate to pass now to Part XVII of the Act. Section 148 created offences for those who neglected to provide for children in their care and s 149 created offences for those who assaulted or ill-treated children. Section 132 provided for the maximum penalties to be imposed upon those guilty of offences under the Act which were punishable summarily. 140 Under s 135 any officer authorised by the Minister or a police officer was empowered to take a child in respect of whom it was believed that an offence had been committed to a shelter where he could be detained until brought before a court. 141 Under s 146 any person might lay an information before a magistrate upon which the magistrate who believed there was reasonable cause to suspect that a child was a neglected child as defined might issue a warrant for the purpose of having the child taken to a place of safety until he could be brought before a court. 142 Section 148B provided for a statutory scheme of notification of the Director and this provision assumes particular significance in the present context. It defined, in sub-s (1), a "prescribed person" as meaning: "(a) a medical practitioner; and (b) a person who is a member of any class of persons prescribed for the purposes of this paragraph, being a person who follows a profession, calling or vocation, other than a solicitor or barrister in the course of his profession, so prescribed, or who holds any office so prescribed." 143 Section (2) provided for notification by those other than prescribed persons: "(2) Any person who forms the belief upon reasonable grounds that a child - (a) has been assaulted; and (b) is a neglected child within the meaning of Part XIV may (c) notify the Director of his belief and the grounds thereof either orally or in writing; or (d) cause the Director to be so notified." 144 Sub-section (3) imposed an obligation of notification on prescribed persons and sub-s (4) provided for a penalty for breach of this obligation: "(3) A prescribed person who in the course of practising his profession, calling or vocation, or in exercising the functions of his office, as the case may be, has reasonable grounds to suspect that a child has been assaulted, ill-treated or exposed, shall - (a) notify the Director of the name or a description of the child and those grounds either orally or in writing; or (b) cause the Director to be so notified promptly after those grounds arise. (4) A prescribed person who fails to comply with sub-section (3) shall be guilty of an offence against this Act." 145 Sub-section (5) concerned the Director: "(5) Where the Director has been notified under sub-section (2) or (3) he shall - (a) promptly cause an investigation to be made into the matters notified to him; and (b) if he is satisfied that the child in respect of whom he was notified may have been assaulted, ill-treated or exposed, take such action as he believes appropriate, which may include reporting those matters to a constable of police." 146 Section 148C provided machinery for the Director or a constable of police to have a medical examination of a child where it was believed on reasonable grounds that the child had suffered injury by reason of having been assaulted or ill-treated. 147 Section 158 was referred to earlier as being a section relied upon in the defence pleaded. This section provided, in sub-s (1): "(1) No suit or action shall lie against the Minister or any officer or employee of the Department of Youth and Community Services for or on account of any act, matter or thing done or commanded to be done by him and purporting to be done for the purpose of carrying out the provisions of this Act, if the Minister or the officer or employee has acted in good faith and with reasonable care. (2) [Repealed]. (3) Proceedings in such suit or action as aforesaid may, on application to the court in which such suit or action was commenced, be stayed upon such terms as to costs or otherwise as the court may think fit, if the court is satisfied that there is no reasonable ground for alleging want of good faith or reasonable care." 148 Section 148B was added to the Child Welfare Act by Act No. 29 of 1977 and it was plainly added in the interests of children with a need for protection, as the Second Reading Speech by the then Minister for Youth and Community Services emphasised: "The main object of this legislation is to ensure that children who are ill treated or abused by their parents receive prompt attention, that parents be provided with access to professional help at the earliest possible moment and that such cases be systematically identified…" 149 The procedure of notification to the director was made available for any person forming the belief addressed in sub-s (2), but the procedure of notification was made compulsory in the case of a prescribed person coming within sub-s (3). 150 Once a notification was given to the director, s 148B(5) was enlivened and he thereupon became obliged to promptly cause an investigation into the subject matter of the notification. Moreover, if the director was satisfied that the child the subject of the notification "may have been assaulted, ill treated or exposed", he became obliged to take such action as he believed appropriate, which may include reporting those matters to a constable of police. 22 It was not contended that the Child Welfare Act gave rise to a statutory cause of action. Rather, the submission was that the State, through YACS and its officers, owed a common law duty of care to children in respect of whom there had been a notification within the terms of s148B. Studdert J upheld this submission (JL §§158-191). The measure of the duty imposed upon YACS by the receipt of notifications was described as a duty to exercise reasonable care in the discharge of the mandatory requirements of s148B (JL §191). This proposition is challenged by the State in its cross appeal. Issues fought and determined at the liability phase of the trial 23 Essentially four issues were litigated at the proceedings which culminated in the judgment as to liability: (i) What duty of care arose in the particular circumstances? (ii) What physical or sexual abuse was inflicted on TC? (iii) What was notified to YACS and when? (iv) Did YACS breach its duty in the circumstances? 24 Facts relevant to one issue could also be relevant to another. 25 In summarising the outcomes I will concentrate on the findings which touch the issues pressed by the parties in the appeal. Much of what was fought and decided at trial is no longer relevant, except sometimes as background. (i) What duty of care arose in the particular circumstances? 26 The duty of care found to have been called into existence was one triggered by a notification under s145B(2), and its content was held to be a duty to exercise reasonable care in the discharge of the mandatory requirements of both limbs of s145B(5) (JL §§158-191). (ii) What physical or sexual abuse was inflicted on TC? 27 At least by the stage it got to this Court, the appellant's case was that the psychiatric harm which is assumed to have ultimately befallen him stemmed from sexual abuse as distinct from physical neglect or abuse. However, he argued that appropriate response by YACS to notifications of physical abuse would have brought to light the sexual abuse that was inflicted, and would have led to early intervention that would in turn have prevented further sexual abuse occurring. 28 In the main proceedings spanning 64 days TC sought to establish that he had been both physically and sexually abused. The primary thrust of his case was that his mother bore direct or indirect responsibility for the abuse, because YACS' breaches were said to have led it to fail to take appropriate action under s148B(5) directed at the mother. In a strict sense, this issue of the preventable abuse that was actually inflicted went to the matter of damage. TC's ultimate case was that YACS had materially contributed to his ongoing psychiatric disorder because of its failure to respond promptly and adequately to complaints which called forth the relevant duty of care. TC's case was that early appropriate intervention would have prevented further acts of sexual abuse. It was never his case that psychiatric damage attributable to YACS' default stemmed from delay in treatment of the psychiatric condition. 29 It is however clear that the parties joined issue on the question of actual abuse at the first stage of the trial. Obviously they recognised that there was a substantial overlap between that issue and the issue of breach. Studdert J heard argument and he made findings as to which acts of abuse actually took place. The causation hearing proceeded on the basis of those findings. 30 At trial TC, then a young man of 17, gave evidence of acts of sexual abuse practiced upon him by his mother and by a woman named Judith. There is no indication that the plaintiff (or his tutor HF, so long as he remained tutor) suggested at trial that any physical or sexual abuse by a woman occurred during the periods that TC was living with his father. HM was called as a witness by the State and she denied those allegations. There was no other direct evidence on this question, which involved hotly fought credibility issues about long past events. 31 Studdert J found on the balance of probabilities that HM was not guilty of sexually abusing TC nor had she participated in any sexually inappropriate behaviour with anyone else in the presence of TC (JL §§210, 61-72). The appellant does not challenge this conclusion. 32 On the other hand, there were findings in TC's favour to the effect that he had been the victim of sexual abuse by a female or females unknown at some time or times prior to Dr Goldberg's assessment in May 1984 (see JL §§53, 57, 60, 324; JC §68). 33 The timeframe within which the sexual abuse occurred is of considerable importance, because of the need to link the abuse (as the putative trigger for the psychiatric harm) with the actual breaches of duty found against YACS and its officers. Studdert J was unable to locate the time with any more specificity than before 12 May 1984 (JL §§53, 60; JC §68). Having regard to TC's birthdate as 10 February 1980, senior counsel for the appellant accepted that the time frame within which sexual abuse triggering the inappropriate behaviour observed by Dr Goldberg must have commenced no earlier than February 1982 (Tr p40). In his submissions at trial, February 1983 was the starting point (Orange 98). The difference does not matter. (iii) What was notified to YACS and when? 34 Notifications of alleged abuse were made by HF to YACS from November 1980 onwards. The earlier complaints were general allegations that HM was psychologically incapable of caring for the child or related to alleged acts of verbal or physical abuse. The first notification to YACS of sexual abuse of TC or of evidence that TC was acting in a sexually inappropriate manner was found to have been made in May 1984 (JL §§73-93). 35 YACS' response to all of the notifications down to February 1983 was found to be adequate and in compliance with its duty of care (see esp JL §§35, 214-228). 36 The breaches that were found related to its response to: (1) the five affidavits relating to the cot tying incident, produced to YACS in February-March 1983; and (2) the sexual abuse notification in May 1984. (iv) Did YACS breach its duty in the circumstances? 37 Studdert J was satisfied that the evidence did not establish any act or omission of an officer of YACS in response to any complaint made in the period 1980 to October 1982 could be regarded as constituting negligence, even assuming a private duty of care (JL §35). 38 The next period considered was between October 1982 and February 1983. TC's parents had been living apart since February 1982 and HM had been living at the Marrickville Refuge since 28 March 1982. In October 1982 HF complained that HM went out every night "having a good time with the men" and leaving TC tied to the bed at the women's refuge. This complaint was assigned to a Mr Plater for investigation. There were visits to the refuge and discussions with HM and others, including doctors. HM denied any neglect or abuse. There were no findings adverse to YACS as regards the conduct of its officers in following up the complaints down to February 1983 (see JL §§35, 214-229). (See also the rejection of claims of bias against all of the individual YACS officers at JL §§385-474; and the favourable findings referable to Plater and Hulbert at JL §§520-1.) 39 It was however found that the response of YACS officers to the allegations relating to the disputed cot tying incident of April 1982 contained in five affidavits or statements delivered to YACS in February-March 1982 was less than adequate (JL §§236-249, 262-265, 529). The deponent Ms Papakonstantinou was unable to be interviewed because she had left Australia. The deponent Mrs Denley did not refer to the cot incident. But Mrs Daskalopoulos, Mrs Tokatlidis and Mrs Brunner each referred to the cot incident and they were available, yet they were not interviewed. HM was, but she was not confronted with the specific allegations of the deponents. These omissions were found by the trial judge to constitute breaches of duty of care on the part of YACS and its officers (JL §§235-267; JC §53). 40 As regards the allegations of sexual abuse that came to YACS's notice in May 1984 Studdert J acquitted the officers of negligence in a number of respects. The decision to arrange a case conference for 21 May 1984 was held appropriate (JL §§485-6, 493), as was the decision to obtain a full psychiatric assessment before considering removal of TC from HM's care (JL §§493-503). In light of Dr Waters' assessment and report of 1 November 1984, the judge also held that no breach of duty towards TC occurred after that date (JL §504). The latter paragraph bears repeating: 504. I am persuaded by the evidence Dr Scott gave that it would have been inappropriate to have removed TC from his mother before Dr Waters made his assessment, and because of the conclusions reached by Dr Waters I have decided that it was appropriate thereafter for YACS to act in the manner in which it did. Certainly as I assess the evidence I do not find it to have been proved that there was any breach of duty towards the plaintiff from the time Dr Waters made his assessment and furnished his report in November 1984. 41 There were also findings in favour of YACS and its officers that the non-institution of Children's Court proceedings at any time after November 1984 and the steps taken by YACS to intervene in the Family Court proceedings in September 1984 were appropriate in the circumstances (JL §§348-382, especially 358-9, 368, 378, 382. See also §545.) 42 Having disposed of these matters, I can address the specific and limited breach found in relation to YACS' response to the sexual abuse allegation of May 1984. The facts are set out at JL §§318-347. The relevant breach is described as "Delay in relation to Dr Waters" and it covers the period of nearly six months between 11 May 1984 (when the notification occurred) and receipt of Dr Waters' report on 1 November 1984. YACS was found to have been guilty of delay in engaging and instructing Dr Waters (JL §§507- 517, 546). The specific period within which YACS' breaches contributed to that delay ended on 10 September 1984 (JL §517; JC §75). 43 The appellant did not challenge the primary facts as found by Studdert J. However, the State contested the findings as to breach. I shall set out the details of those findings when I address the State's contentions as to breach. Issues fought and decided at the causation phase of the trial 44 The separate trial of causation issues took place on 13 and 14 March 2000. The parties supplemented the evidence given at the earlier trial proceedings and Studdert J heard argument. 45 It is very clear that this short but ultimately critical phase of the trial proceeded on the basis that the four groups of findings that I have identified were not revisited. Except unintentionally, neither party sought to do so. Studdert J made it clear in argument that he was not retreating on those findings, and the causation hearing proceeded accordingly. (See also JL §551.) 46 Pursuant to earlier directions, the plaintiff produced a Statement of Acts, Matters or Things Constituting Causal Link Between Breaches of Duty Found and Damage Alleged to Flow From Such Breaches (On Assumption That Plaintiff is Suffering From a Psychiatric Disorder) (Orange 93). Senior counsel for the plaintiff effectively spoke to this document in his oral submissions. On my reading of the transcript of argument on 14 March 2000, Mr Shand QC did not seek to go beyond these particulars. At least, if he consciously or unconsciously drifted beyond them, he was promptly brought back into line by the judge and he accepted this without demur. 47 Two additional facts were assumed for the limited purpose of the causation proceedings. These were (1) the plaintiff is suffering from a psychiatric disorder and (2) the established sexual abuse had caused injury in the sense of contributing to that psychiatric disorder (JC §§2, 66-67). 48 Through his senior counsel TC submitted that, since the harm putatively suffered was within the area of risk which YACS' duty was designed to avoid, the onus rested upon the State to prove that the harm was not caused by its negligence. This proposition, with variants of it said to stem from Betts v Whittingslowe (1945) 71 CLR 637 at 648-9 and later cases, is a principal issue in the appeal. Studdert J discussed the case law (JC §§5 - 48). 49 His Honour concluded that the legal onus of proof remained throughout upon the plaintiff and that this onus required him to prove on the balance of probabilities that the breaches of duty which had been found (or either of them) were (or was) causative of injury. In the present context that involved proof that the negligence caused or materially contributed to the plaintiff's psychiatric disorder (JC §48). 50 Studdert J found that neither breach of duty was causative of harm to the plaintiff (JC §81). Overview of issues in appeal 51 The appellant submitted that the findings in the second judgment were erroneous. The principal submission was that Studdert J erred in finding that the plaintiff bore the onus of proof on causation. Alternatively, it was submitted that his Honour failed to apply the approach to probability reasoning for cases of negligent omission endorsed by the High Court in a series of decisions. 52 The respondent for its part defended the approach and conclusions of the primary judge as to causation. It also contended that Studdert J erred in his findings as to duty of care and breach. Onus of proof and shifting evidentiary onus on causation (a) Issues outlined 53 Grounds 2-11 of the notice of appeal challenge in various ways the reasoning and conclusions on causation. 54 The appellant submitted that the entirety of the causation judgment is vitiated by a central flaw: Studdert J should not have concluded that TC bore the legal onus of proof that, on the probabilities, YACS' breaches materially contributed to his putative loss. 55 Alternatively, the appellant submitted that an evidentiary onus had passed to YACS in the circumstances. Implicit in this was the further submission that Studdert J erred in holding that such onus was satisfied. 56 The appellant properly starts by emphasising that the duty found was a duty to exercise reasonable care in the discharge of YACS' statutory obligations under s145B(5) of the Child Welfare Act; and that the breaches found were omissions to investigate the documented cot-tying allegations properly and to brief Dr Waters in a timely fashion. 57 The appellant submitted that the correct approach to the causation question was that explained by Gaudron J in Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420-1. It is convenient to set out the passage, together with its footnotes: Leaving aside cases involving some positive act and those in which an omission can be treated as a positive act, a case based on omission or a failure to act will, in certain respects, fall for analysis in a way that differs from that appropriate for a case based on a positive act. Thus, in the case of a positive act, questions of causation are answered by reference to what, in fact, happened. In the case of an omission, they are answered by reference to what would or would not have happened had the act occurred.19 In that exercise, the larger philosophical questions are brushed aside and the issue is approached on the basis that "when there is a duty to take a precaution against damage occurring to others through the default of third parties or through accident, breach of the duty may be regarded as materially causing or materially contributing to that damage, should it occur, subject of course to the question whether performance of the duty would have averted the harm".20 In practice, it is not always necessary to inquire what would have happened in the circumstances under consideration had a positive duty been performed. Thus, in the case of a statutory duty, a "breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty".21 And although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed 22, generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect 23, or that the injury would have occurred even if the duty had been performed 24, it will be taken that the breach of the common law duty caused or materially contributed to the injury. 19 See, eg, Duyvelshaff v Cathcart & Ritchie Ltd; Quigley v The Commonwealth (1981), 55 ALJR 579; 35 ALR 537. See also Hart and Honore, Causation in the Law, 2nd ed (1985), pp 59-61 where the authors identify the hypothetical nature of an inquiry as to the causal significance of providing or failing to provide a person with, or depriving a person of, an opportunity. 20 Sutherland Shire Council v Heyman (1985), 157 CLR 424, at p 467, per Mason J. See also Hart and Honore, op cit, p 38. 21 Betts v Whittingslowe (1945), 71 CLR 637, at p 649, per Dixon J. 22 See, eg, Duyvelshaff v Cathcart & Ritchie Ltd and Quigley v The Commonwealth, where there was an onus on a plaintiff employee to establish what he would have done if different working conditions had been provided. 23 McGhee v National Coal Board, [1973] 1 WLR 1, at pp 6-7; [1972] 3 All ER 1008, at pp 1012-1013, per Lord Wilberforce, where it was said that in the circumstances of that case the defendant bore an onus to that effect. But cf Wilsher v Essex AHA, [1988] AC 1074, at pp 1087, 1090, per Lord Bridge of Harwich, where the issue of causation in that case and the remarks of Lord Wilberforce in McGhee were analyzed in terms consistent with an inference arising from the evidence in the plaintiff's case in chief with a resultant evidentiary onus on the defendant. Also note the debate in Canada on a possible shift in the onus of proof, seemingly resolved in the manner indicated by Lord Bridge in Wilsher by the Canadian Supreme Court in Snell v Farrell, [1990] 2 SCR, at pp 329-330; (1990) 72 DLR (4th) 289, at p 301. 24 See Barnett v Chelsea and Kensington Hospital Management Committee, [1969] 1 QB 428 and British Road Services Ltd v AV Crutchley & Co Ltd, [1967] 2 All ER 785. (b) Legal onus remains with plaintiff 58 For at least part of the appeal (cf CA Tr p188), the appellant submitted that this passage endorsed Lord Wilberforce's statement in McGhee v National Coal Board that the onus of proof shifts in cases such as the present. The judgment of Kirby J in Chappel v Hart (1998) 195 CLR 232 at 273-4 was also invoked as authority for this proposition. Contrary decisions or dicta of this Court in Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307, Wallaby Grip (Bae) Pty Ltd (in liq) v Macleay Area Health Service (1998) 17 NSWCCR 355 and E M Baldwin & Son Pty Ltd v Plane (1999) AustTortsR ¶81-499 were said to be wrongly decided. 59 I cannot accept this submission. I remain of the view that Australian law has not adopted a formal reversal of onus of proof of causation in negligence, even negligence involving breach by omission. A robust and pragmatic approach to proof of causation permits, but does not compel, a finding of liability in cases of negligence by omission which (as Gaudron J points out in Bennett) is necessarily based upon a hypothetical enquiry. A defendant who exposes a plaintiff to a risk of injury or who, by omission, fails to take reasonable steps to avoid or minimise that risk is not liable unless the risk comes home in the sense that the court is ultimately satisfied on the balance of probability that the defendant's breach caused or materially contributed to the harm actually suffered. 60 I explained my reasoning in Bendix Mintex at 311-318. There (at 316) it was noted that the majority of the High Court in Bennett (Mason CJ, Deane J and Toohey J at 416) adverted to the questions (a) whether there might be no real distinction between breach of duty and causation and (b) whether a failure to take steps which would bring about a material reduction of the risk amounts to a material contribution to the injury. Their Honours said: These questions have been considered in Canada in the context of a possible shift in the onus of proof … but it seems that the problem still awaits final resolution. I also observed (at 316) that the passage in Gaudron J's judgment in Bennett that is set out above: … would appear to take Mason J's principle [in Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 467] beyond the field of a duty to take care to protect the plaintiff from foreseeable injuries due to the acts of third parties or accident. What is less clear is whether her Honour was embracing the idea that in such circumstances the onus shifts to the defendant (cf at 420 footnote (23)) or whether she was merely endorsing a legitimate method whereby the trier of fact could validly move from evidence of risk to finding of probable cause of damage. 61 Bennett was a case of negligence by omission. 62 In Bendix Mintex I concluded that the ultimate legal onus of proof rested with the plaintiff. It is not sufficient that a plaintiff prove that the defendant negligently exposed the plaintiff to a risk of injury: liability depends upon the plaintiff persuading the trier of fact that it was probable that the risk came home (see at 318). Beazley JA was of like view (see at 339). 63 I do not think that later High Court authority has concluded otherwise as regards reversal of onus of proof. If anything, there has been an endorsement of the traditional view as to the plaintiff bearing the ultimate legal onus, albeit in a context that has emphasised the propriety of a trier of fact taking a robust and pragmatic approach to causation. 64 The passage in Kirby J's judgment in Chappel (at 273-4) upon which the appellant relies treats McGhee per Lord Wilberforce and Bennett per Gaudron J as authority for a shifting of the evidentiary onus in proper cases. I respectfully agree. Nothing in the other judgments in Chappel support a reversed onus of proof as a legal proposition. Indeed (on my reading) they reject it (see per Gaudron J at 238-9, per McHugh J at 244-5, per Gummow J at 257-9, per Hayne J at 281-2). Chappel (like Bennett) is a case of negligence by omission. 65 It is convenient to set out these passages, emphasising portions which illustrate why there is no support for the legal proposition advanced by the appellant. The same passages endorse and explain the type of reasoning approved by Dixon J in Betts upon which the appellant relies in the alternative. 66 In Chappel Gaudron J said (at 238-9): The argument that the damage sustained by Mrs Hart was simply the loss of a chance must be considered in a context concerned with the assignment of legal responsibility. In that context, philosophical and scientific notions are put aside33 and causation is approached as a question of fact to be answered "by applying common sense to the facts of [the] particular case".34 That is so both for the question whether a particular act or omission caused any damage at all 35 and for the question whether some particular damage resulted from the act or omission in question .36 Questions of causation are not answered in a legal vacuum. Rather, they are answered in the legal framework in which they arise. For present purposes, that framework is the law of negligence. And in that framework, it is important to bear in mind that that body of law operates, if it operates at all, to assign a duty to take reasonable steps to prevent a foreseeable risk of harm of the kind in issue.37 It was not disputed in this Court that Dr Chappel was under a duty to inform Mrs Hart of the possible consequences in the event of the perforation of her oesophagus and subsequent infection, including the possibility of damage to her voice. The duty was called into existence because of the foreseeability of that very risk 38 The duty was not performed and the risk eventuated . Subject to a further question in the case of a duty to provide information, that is often the beginning and the end of the inquiry whether breach of duty materially caused or contributed to the harm suffered . As Dixon J pointed out in Betts v Whittingslowe 39, albeit in relation to a statutory duty, "breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference , in the absence of any sufficient reason to the contrary , that in fact the accident did occur owing to the act or omission amounting to the breach". Where there is a duty to inform it is, of course, necessary for a plaintiff to give evidence as to what would or would not have happened if the information in question had been provided40. If that evidence is to the effect that the injured person would have acted to avoid or minimise the risk of injury, it is to apply sophistry rather than common sense to say that, although the risk of physical injury which came about called the duty of care into existence, breach of that duty did not cause or contribute to that injury, but simply resulted in the loss of an opportunity to pursue a different course of action. The matter can be put another way. If the foreseeable risk to Mrs Hart was the loss of an opportunity to undergo surgery at the hands of a more experienced surgeon, the duty would have been a duty to inform her that there were more experienced surgeons practising in the field. Because the risk was a risk of physical injury, the duty was to inform her of that risk. And that particular duty was imposed because, in point of legal principle, it was sufficient, in the ordinary course of events, to avert the risk of physical injury which called it into existence.41 And the physical injury having occurred, breach of the duty is treated as materially causing or contributing to that injury unless there is "sufficient reason to the contrary" .42 33 See March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 at 509, per Mason CJ. 34 Stapley v Gypsum Mines Ltd [1953] AC 663 at 681, per Lord Reid, cited with approval in March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 at 515, per Mason CJ; at 523, per Deane J. 35 See March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506; Bennett v Minister of Community Welfare (1992) 176 CLR 408. 36 See Medlin v State Government Insurance Commission (1995) 182 CLR 1. 37 See Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 487, per Brennan J; Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 422, per Gaudron J. 38 See Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 422, per Gaudron J. 39 (1945) 71 CLR 637 at 649. 40 See, eg, Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410; 1 ALR 125 and Quigley v The Commonwealth (1981) 55 ALJR 579; 35 ALR 537, where there was an onus on a plaintiff employee to establish what he would have done if different working conditions had been provided, referred to in Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420, per Gaudron J. 41 See Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 422, per Gaudron J. 42 Betts v Whittingslowe (1945) 71 CLR 637 at 649, per Dixon J. See also Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 467, per Mason J. McHugh J said (at 244-5): Before the defendant will be held responsible for the plaintiff's injury, the plaintiff must prove that the defendant's conduct materially contributed to the plaintiff suffering that injury .58 In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases 59 the risk of injury to another person. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring. If, however, the defendant's conduct does not increase the risk of injury to the plaintiff, the defendant cannot be said to have materially contributed to the injury suffered by the plaintiff. That being so, whether the claim is in contract or tort, the fact that the risk eventuated at a particular time or place by reason of the conduct of the defendant does not itself materially contribute to the plaintiff's injury unless the fact of that particular time or place increased the risk of the injury occurring. 58 Bonnington Castings Ltd v Wardlaw [1956] AC 613 at 614; Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410 at 417; 1 ALR 125 at 138; Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 724; 10 ALR 303 at 310-311; March (1991) 171 CLR 506 at 514. 59 "Increases" in this context includes "creates". Gummow J said (at 257-9): Here, the injury to Mrs Hart occurred within an area of foreseeable risk. In the absence of evidence that the breach had no effect or that the injury would have occurred even if Dr Chappel had warned her of the risk of injury to the laryngeal nerve and of the consequent risk of partial or total voice loss, the breach of duty will be taken to have caused the injury.98 In those circumstances the task of Dr Chappel was to demonstrate some good reason for denying to Mrs Hart recovery in respect of injuries which she would not have sustained at his hands but for his failure adequately to advise her. Dr Chappel founds his case upon the circumstance that injuries of the nature which were sustained by his patient may be caused without negligent performance of the procedure. He joins to that consideration three matters. The first is the circumstance that sooner or later (though it does not appear whether this would have been before Mrs Hart's retirement in August 1985 or, indeed, at any particular time) Mrs Hart would have been obliged to submit to the procedure. The second is the finding by the trial judge that at some future time Mrs Hart would in fact have done so, even after being made adequately aware of the risk. The third is that this later operation would have carried the same risk of injury. Thus, it was said to follow that Mrs Hart had lost no "real and valuable chance ... of the risk [of injury] being diminished or avoided". In support of that conclusion, reliance was placed upon passages in Sellars v Adelaide Petroleum NL 99 which deal with lost opportunities or chances to acquire benefits. However, as is emphasised later in these reasons, Mrs Hart did not sue to recover the value of an opportunity or chance lost to her by the act or omission of Dr Chappel. In this way the submissions for Dr Chappel tended to divert attention from the central issue, namely whether there was adequate reason in logic or policy for refusing to regard the "but for" test as the cause of the injuries sustained by Mrs Hart, by the allurement of further cogitation upon the subject of "loss of a chance". Once the criterion for assessment of the adequacy of causation has been determined as a matter of law, the question whether the plaintiff has suffered some damage and therefore has a complete cause of action in tort is normally established by evidence which satisfies the civil standard of proof.100 If causation is not established in this way, then the plaintiff will fail and recover nothing.101 The difficulties which this standard of proof may present to plaintiffs in certain types of litigation have attracted attention in recent times. In Snell v Farrell 102, Sopinka J, who gave the judgment of the Supreme Court of Canada, referred with approval to the treatment of the subject by Professor Fleming. That scholar had written103: "This traditional approach has come increasingly under challenge in dealing with non-traumatic injuries such as man-made diseases linked to dust, deafness, dermatitis, asbestosis, or linked to chemical products like Thalidomide, DES, and Agent Orange. Another group of cases involves medical procedures depriving patients of a chance of survival or cure. It is often difficult to prove medical causation by `particularistic' evidence, that is direct, anecdotal, non-statistical evidence from the mouth of witnesses." The result of the application of the traditional criterion of proof may be to deny plaintiffs any recovery in tort. There has been discussion of alternatives to denial of recovery in obedience to the "more probable than not" civil standard of proof. 104 Writing in 1989, Professor Fleming said of these alternatives:105 "One is to lower the conventional standard and accept exposure to the risk of injury instead of actual injury as a compensable event. Another is to limit liability in an amount proportionate to the risk created by each individual agent. Both of these modifications have gained reluctant and by no means universal acceptance by Anglo-American courts." In Snell v Farrell 106 Sopinka J referred to material suggesting that in the United States the loosening of the criteria for recovery in medical malpractice suits had been followed by the withdrawal of some major insurers from the market.107 Subsequently, in Laferriere v Lawson 108, the Supreme Court of Canada held that it had not been proved on the balance of probabilities that the failure in 1971 of the defendant to inform his patient that the growth removed by him was cancerous had caused her death in 1978. The evidence was that the patient's chances of survival would not have been greater had she been informed in 1971 of the diagnosis. The Court also held that the theory of liability for loss of a chance was not to be adopted in such a case.109 The present appeal does not involve any consideration of whether such means should be adopted to assist recovery by plaintiffs in certain cases. 98 Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420-421. 99 (1994) 179 CLR 332 at 355, 363-364, 368. 100 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 351, 353. 101 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 368. 102 [1990] 2 SCR 311 at 320-321. 103 Fleming, "Probabilistic Causation in Tort Law", Canadian Bar Review, vol 68 (1989) 661, at p 662. 104 Snell v Farrell [1990] 2 SCR 311 at 326-328. See also Scott, "Causation in Medico-Legal Practice: A Doctor's Approach to the `Lost Opportunity' Cases", Modern Law Review, vol 55 (1992) 521; Stauch, "Causation, Risk, and Loss of Chance in Medical Negligence", Oxford Journal of Legal Studies, vol 17 (1997) 205, at pp 213-216. 105 Fleming, "Probabilistic Causation in Tort Law", Canadian Bar Review, vol 68 (1989) 661, at p 663. See also Coote, "Chance and the Burden of Proof in Contract and Tort", Australian Law Journal, vol 62 (1988) 761, at p 772. 106 [1990] 2 SCR 311 at 327. 107 cf Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 at 282-283, 302-303. 108 [1991] 1 SCR 541. 109 Laferriere v Lawson [1991] 1 SCR 541 at 605-606; (1991) 78 DLR (4th) 609 at 656-658. Kirby J said (at 273-4): 8. Shifting the evidentiary onus: One means of alleviating the burden cast by law on a plaintiff to establish a causal relationship between the breach and the damage concerns the evidentiary onus. Australian law has not embraced the theory that the legal onus of proof shifts during a trial .176 Nevertheless, the realistic appreciation of the imprecision and uncertainty of causation in many cases — including those involving alleged medical negligence — has driven courts in this country, as in England, to accept that the evidentiary onus may shift during the hearing. Once a plaintiff demonstrates that a breach of duty has occurred which is closely followed by damage, a prima facie causal connection will have been established. 177 It is then for the defendant to show, by evidence and argument, that the patient should not recover damages. In McGhee v National Coal Board 178, a Scottish appeal, Lord Wilberforce explained why this was so. Although Lord Wilberforce's statement in McGhee has proved controversial in England,179 it has received support in this Court.180 Its principle has also been accepted by international experts such as Professor Giesen. I find Lord Wilberforce's exposition compelling181: "[T]he question remains whether a pursuer must necessarily fail if, after he has shown a breach of duty, involving an increase of risk of disease, he cannot positively prove that this increase of risk caused or materially contributed to the disease while his employers cannot positively prove the contrary. In this intermediate case there is an appearance of logic in the view that the pursuer, on whom the onus lies, should fail — a logic which dictated the judgments below. The question is whether we should be satisfied, in factual situations like the present, with this logical approach. In my opinion, there are further considerations of importance. First, it is a sound principle that where a person has, by breach of a duty of care, created a risk, and injury occurs within the area of that risk, the loss should be borne by him unless he shows that it had some other cause. Secondly, from the evidential point of view, one may ask, why should a man who is able to show that his employer should have taken certain precautions, because without them there is a risk, or an added risk, of injury or disease, and who in fact sustains exactly that injury or disease, have to assume the burden of proving more: namely, that it was the addition to the risk, caused by the breach of duty, which caused or materially contributed to the injury? In many cases ... this is impossible to prove, just because honest medical opinion cannot segregate the causes of an illness between compound causes. And if one asks which of the parties, the workman or the employers, should suffer from this inherent evidential difficulty, the answer as a matter of policy or justice should be that it is the creator of the risk who, ex hypothesi must be taken to have foreseen the possibility of damage, who should bear its consequences." 176 Anchor Products Ltd v Hedges (1966) 115 CLR 493 at 500; Nominal Defendant v Haslbauer (1967) 117 CLR 448 at 456; Government Insurance Office of NSW v Fredrichberg (1968) 118 CLR 403 at 413-414; cf Colvilles Ltd v Devine [1969] 1 WLR 475 at 479; [1969] 2 All ER 53 at 58. See generally Atiyah, "Res Ipsa Loquitur in England and Australia", Modern Law Review, vol 35 (1972) 337, at p 345. 177 Betts v Whittingslowe (1945) 71 CLR 637 at 649. 178 178 [1973] 1 WLR 1 at 6; [1972] 3 All ER 1008 at 1012. 179 Wilsher v Essex Area Health Authority [1988] AC 1074 at 1087, 1090. 180 See, eg, March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 at 514; Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420-421. 181 McGhee [1973] 1 WLR 1 at 6; [1972] 3 All ER 1008 at 1012. Hayne J said (at 281-2): The elementary proposition that a defendant is liable in negligence only if the damage suffered by the plaintiff was caused by the defendant's negligent act or omission identifies the connection between the defendant's act or omission and the plaintiff's damage as that of causation. As is said in Bennett v Minister of Community Welfare202: "In the realm of negligence, causation is essentially a question of fact, to be resolved as a matter of common sense203. In resolving that question, the `but for' test, applied as a negative criterion of causation, has an important role to play but it is not a comprehensive and exclusive test of causation; value judgments and policy considerations necessarily intrude."204 The resolution of that question will often find expression in an assertion of its result without any lengthy articulation of reasons. Especially would that be so in a case where policy considerations do not assume prominence in the process. In this case, however, it is as well to try to identify the process of reasoning that is adopted. The search for causal connection between damage and negligent act or omission requires consideration of the events that have happened and what would have happened if there had been no negligent act or omission. It is only by comparing these two sets of facts (one actual and one hypothetical) that the influence or effect of the negligent act or omission can be judged. If the damage of which the plaintiff complains would have happened without the intervention of the negligent behaviour, it will often be possible to conclude that the negligent behaviour was not a cause of that damage. Thus, to take examples cited in Prosser and Keeton on the Law of Torts205: a failure to fence a hole in the ice plays no part in causing the death of runaway horses which could not have been halted if the fence had been there206; a failure to have a lifeboat ready is not a cause of the death of a person who sinks without trace immediately upon falling into the ocean207; the omission of crossing signals by an approaching train is of no significance when a car driver runs into the sixty-eighth car in the line.208 202 (1992) 176 CLR 408 at 412-413, per Mason CJ, Deane and Toohey JJ. 203 Fitzgerald v Penn (1954) 91 CLR 268 at 277-278, per Dixon CJ, Fullagar and Kitto JJ; March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 at 515, per Mason CJ, at 522-523, per Deane J. 204 March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506. 205 5th ed (1984), p 265. 206 Stacy v Knickerbocker Ice Co (1893) 54 NW 1091 (Wis). 207 Ford v Trident Fisheries Co (1919) 122 NE 389 (Mass). 208 Sullivan v Boone (1939) 286 NW 350 (Minn). 67 Most of these passages were set out in extenso by Studdert J (JC §§38-43). 68 Three of the justices returned to the topic in Naxakis v Western General Hospital & Anor (1999) 197 CLR 269 (see per Gaudron J at 278-9, per Kirby J at 296, per Callinan J at 312). Again I set out the passages with emphasis added. 69 Gaudron J said (at 278-9): 31. It has been suggested that to allow compensation for the loss of chance would alleviate problems associated with proof of causation.34 There is, in my view, a tendency to exaggerate the difficulties associated with proof of causation, even in medical negligence cases. For the purposes of the allocation of legal responsibility, "[i]f a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring".35 And in that situation, the trier of fact — in this case, a jury — is entitled to conclude that the act or omission caused the injury in question unless the defendant establishes that the conduct had no effect at all or that the risk would have eventuated and resulted in the damage in question in any event .36 34 See Stauch, "Causation, Risk, and Loss of Chance in Medical Negligence", Oxford Journal of Legal Studies, vol 17 (1997) 205, at pp 218-225; Waddams, "The Valuation of Chances", Canadian Business Law Journal, vol 30 (1998) 86, esp at pp 92-95. 35 Chappel v Hart (1998) 195 CLR 232 at 244-245, per McHugh J. 36 See Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420-421 and the cases there cited. See also Chappel v Hart (1998) 195 CLR 232 at 237-238, per Gaudron J; at 247-248, per McHugh J; at 257-259, per Gummow J; at 272-273, per Kirby J. Kirby J said (at 296): 76. Once the jury took the first step, and concluded that Mr Jensen did not, as he should have, consider aneurysm and the need for an angiogram, it would have been a small step for them to conclude that the failure to consider this alternative diagnosis was a cause of the second haemorrhage suffered by the appellant with its grave results.125 Where, as here, a plaintiff demonstrates that it was open to a jury to conclude that the respondents were in breach of their duty of care to him and this breach was closely followed by his damage , a prima facie causal link is established. It may be displaced and it may be rejected ; but it cannot be ignored in considering a motion for judgment for the defendant for want of evidence.126 125 March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506; Chappel v Hart (1998) 195 CLR 232 at 272-273; McGhee v National Coal Board [1973] 1 WLR 1 at 6; [1972] 3 All ER 1008 at 1012. 126 Betts v Whittingslowe (1945) 71 CLR 637 at 649. Callinan J said (at 312): 127. In Chappel v Hart 144 McHugh J was one of two dissentients in a Court of five members of this Court, but I do not take his Honour's observations that I am about to quote and adopt as being in any way affected by that dissent: "Before the defendant will be held responsible for the plaintiff's injury, the plaintiff must prove that the defendant's conduct materially contributed to the plaintiff suffering that injury 145. In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases146the risk of injury to another person. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring." 128. On the evidence here the jury were entitled to hold that the failure … materially contributed to the appellant's condition. 144 (1998) 195 CLR 232 at 244. 145 Bonnington Castings Ltd v Wardlaw [1956] AC 613 at 614; Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410 at 417; Tubemakers of Australia v Fernandez (1976) 50 ALJR 720 at 724; March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506. 146 "Increases" in this context includes "creates". 70 This recent body of High Court learning is analysed by Spigelman CJ in Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262 at 278-280. Davies AJA agreed with Spigelman CJ. I respectfully agree with what the Chief Justice has written. I shall set out pars 105-109 and 119. 105 The Respondent relied on an observation by McHugh J in Chappel v Hart (at 244-245 [27]) where his Honour, noting that "increases" in this context includes "creates", said: …"If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contribute to that injury occurring. If, however, the defendant's conduct does not increase the risk of injury to the plaintiff, the defendant cannot be said to have materially contributed to the injury suffered by the plaintiff." 106 Although his Honour's was a dissenting judgment, this passage has subsequently been referred to with approval. (See Naxakis v Western General Hospital (1999) 73 ALJR 782 at [31] per Gaudron J, and [127] per Callinan J). 107 The starting point of McHugh J's analysis was that it had been established on the balance of probabilities that the conduct did create or increase the risk of injury, "and that risk had eventuated". 108 This starting point is the very matter in issue in the present case. Was there evidence on the basis of which the trial judge could conclude, on the balance of probabilities, that there was an increased risk of injury and that that risk had "eventuated" in the specific disease of the Respondent? 109 If there was such evidence then, to use the words of both Gaudron J (at [31]) and Callinan J (at [128]), the tribunal of fact was "entitled" to find that the conduct which increased risk, materially contributed to the injury - entitled, but not, of course, required to so find. … 119 There is a tension between the suggestion that any increased risk is sufficient to constitute a "material contribution", and the clear line of authority that a mere possibility is not sufficient to establish causation for legal purposes. The latter is too well established to be qualified by the former. The reconciliation between the two kinds of references is to be found in the fact that, as in Chappel v Hart and in the cases that suggest the former, the actual risk had materialised. The "possibility" or "risk" that X might cause Y had in fact eventuated, not in the sense that X happened and Y had also happened, but that it was undisputed that Y had happened because of X. 71 Par 119 of Seltsam was recently approved by the Queensland Court of Appeal in Batiste v State of Queensland [2001] QCA 275. Thomas JA (with whom McMurdo P agreed) said (at [10]): It remains the law that it is still necessary for a plaintiff to prove that a defendant's conduct materially contributed to the sustaining of the injury. 72 I agree. 73 See also Desmond v Cullen [2001] NSWCA 238. 74 I would add immediately that (save in the classic case of two negligent shooters who kill a plaintiff with one unidentified bullet: see Summers v Tice 199 P 2d 1 (1948), Bendix at 313) nothing really turns upon whether there is a formal reversal of legal onus as distinct from a "shifting of the evidentiary onus" in a proper case. The serious issues in the present appeal are whether the facts caused a shifting of that evidentiary onus and whether Studdert J erred in his approach to the facts and his ultimate conclusions. (c) Studdert J's approach to causation 75 In several of the passages quoted above, the justices endorsed and applied the reasoning process discussed by Dixon J in Betts v Whittingslowe. The appellant submits that Studdert J failed to follow this judicial guidance. 76 Studdert J cited Betts (JC §5) and set out at length the passage in Bennett (at 420-421, that I have quoted above par 57). After rejecting the submission that the legal burden of proof shifted, Studdert J continued (JC §§49-50): 49 In order to enliven a shift in the evidentiary burden of proof, the plaintiff must first prove prima facie that for which he contends. 50 Whilst prima facie proof may be facilitated by inference, and whilst a "robust and pragmatic approach" may be permissible ( Wilsher at 1090), I remind myself that to justify the drawing of any inference: (i) the fact or facts proved must form a reasonable basis for drawing such inference: Jones v Dunkel (1958-59) 101 CLR 298 at 305; and (ii) the inference chosen must be more likely than conflicting inferences: Holloway v McFeeters (1956) 94 CLR 470 and Millicent District Council v Altschwagen (1983) 50 ALR at 173. 77 His Honour considered the nature of the harm of which the plaintiff complained (JC §§54-67). As indicated already, he assumed that (1) the plaintiff is suffering from a psychiatric disorder and (2) the established sexual abuse had caused injury in the sense of contributing to that psychiatric disorder (JC §§2, 66-67). 78 It is convenient to set out the key passages from the second judgment. The core reasoning on causation in relation to the breaches concerning the cot-tying material notified in February-March 1983 was as follows (JC §§69-74) : 69 The avoidance of harm due to sexual abuse could only have been brought about by eliminating the exposure of the plaintiff to the risk of that abuse occurring. In turn, this would have required the introduction of effective preventative measures. Since the defendant was not aware of any sexual abuse before learning of it in May 1984, if the abuse occurred after March 1983 and if it happened whilst the plaintiff was in his mother's care, it seems to me the risk of exposure would only have been avoided if the defendant had acted to remove the plaintiff from his mother. 70 The breach of duty proved involved a failure to make a proper investigation as to the allegations of physical abuse and neglect in 1982, and in particular concerning "the cot incident" at Greek Easter time. Depending upon the results of that investigation, the occasion may have arisen for the defendant to contemplate resort to the provisions of the Child Welfare Act, including the exercise of the discretionary power under s148B(5)(b). I reviewed the relevant provisions of the statute in paras 122-151 of my earlier judgment and I will not repeat that review; of particular relevance are the provisions in Pts XIV and XVII. 71 I find myself unable to conclude that due investigation would have led in the exercise of reasonable care to the avoidance of or the reduction of the risk of exposure to sexual abuse. Absent such a finding there is absent an essential link in the chain of causation. There is a need to establish that performance of the defendant's duty to investigate would have averted the harm: see Sutherland Shire Council v Heyman (1985) 157 CLR 424 per Mason J at 467. As I assess the factual matrix of this case, this is a case in which it is "necessary to inquire what would have happened in the circumstances under consideration had a positive duty been performed": see Bennett v Minister for Community Welfare (1992) 176 CLR 408 per Gaudron J at 420. The result of that inquiry does not advance the plaintiff's case. 72 If the sexual abuse occurred after March 1983, I do not know where or when this happened. Nor do I know the circumstances that afforded the opportunity for the perpetrator or perpetrators. It is possible, although I am unable to find that it is probable, that if the plaintiff had been removed from HM's care in or about March 1983 the opportunity for the perpetrator(s) to act against the plaintiff would have been removed. However whilst it is possible that the investigation that I find ought to have been undertaken could have prompted the defendant to act so as to have the plaintiff removed from his mother's care, I do not consider this to be likely. Indeed I think it unlikely, so far as I can make any assessment on the evidence before me. There are a number of circumstances which point away from removal occurring: (i) The favourable assessment Mr Hanrahan made of HM on 25 February 1983 and on 7 March 1983 (see para 240 of my earlier judgment). (ii) The recency of that assessment compared with the time when the events referred to in the material that required investigation allegedly took place. (iii) The perception, identified by Mrs Burgess, as to the difficulties of assessing the credibility of witnesses outside the court process, which perception might have been expected to influence the decision-making process of the defendant. (iv) When ultimately the evidence of those who alleged physical ill-treatment and neglect was put to the test in court, it was not accepted. The witnesses were assessed by Pawley J as unsatisfactory, and in particular he found himself unable to determine where the truth of the matter lay concerning the cot incident (see my earlier judgment at para 256). Then Bulley J found the evidence of Ms Tokatlidis and Mrs Brunner to be unsatisfactory (see my earlier judgment at para 257). When I came to consider the allegations made against HM from the various sources in question, I found myself unable to determine where the truth lay (my earlier judgment, para 276). Whilst proper investigation undertaken in March 1983 may have revealed relevant information not disclosed in the proceedings in the Family Court and in this court, and whilst the outcome of proper investigations undertaken at that time may have prompted the investigating officer to reach some other conclusion than such conclusions as have been arrived at in court as to the credence to be given to the complaints of misconduct, I cannot conclude that this is likely. (v) There is also the circumstance that to effect the child's removal from his mother would have required a court order, and there was the need for the purposes of s 72 of the Child Welfare Act to satisfy a magistrate that the plaintiff was a neglected child as defined. This would have involved the need to prove the substance of the allegations against HM. Moreover, a decision as to whether the proceedings should be taken in the Children's Court when there were proceedings pending in the Family Court would have given rise to issues such as the defendant later sought advice about from Mr Heagney and Mr Croke. The practical considerations that later arose when the defendant was contemplating proceedings in the Children's Court in 1984 would have surfaced at the earlier point of time in 1983. Those matters I addressed in the earlier judgment and I will not repeat them here. (vi) I considered the opinions of Prof Oates and Dr Scott in my earlier judgment at paras 499-500. Had YACS consulted these experts after completing the investigations that should have been undertaken in March 1983, it would seem unlikely that they would have then supported an application for the removal of the plaintiff from his mother's care. It is not to be assumed however that YACS would have sought the opinion of a psychiatrist or of a person with Dr Scott's expertise before deciding what action, if any, it ought to have undertaken following proper investigation. 73 In my earlier judgment (at para 265) I recorded that had the investigating officer completed the investigations I considered ought to have been conducted, what he recorded, even if by way of an open finding, could have been more helpful to those who later reviewed the matter than what was recorded by Ms Boulter and Mr Lungley in Exhibits A(jj), (kk), (ww) and (xxx). However, as stated in para 267 of my earlier judgment, I have not found to have been established an occasion on which an officer of YACS failed to address a fresh complaint because of the history recorded in the YACS file. 74 I have concluded that the plaintiff has not proved that the failure to make the investigations that should have been made after the presentation of the material in February and March 1983 has caused or contributed to the plaintiff's psychiatric disorder, or that such failure has otherwise caused harm to the plaintiff. 79 The core reasoning on causation in relation to the breaches concerning the sexual abuse notification of May 1984 was as follows (JC §§77-80): 77 The evidence does not permit of a finding that sexual abuse occurred after 11 May 1984, although the possibility of such abuse cannot be excluded. However, since I am unable to find that there was any episode of sexual abuse after 11 May 1984, I am unable to determine that the delay beyond that date attributable to the defendant was causative of injury to the plaintiff. Once Dr Waters made his assessment in November 1984 the defendant had the benefit of his opinion that the plaintiff ought not to be removed from his mother (earlier judgment, para 497). That opinion, absent the delay due to the defendant, would in all probability have been available to the defendant several months earlier. I do not consider the earlier receipt of Dr Waters' report would have altered the defendant's approach to this case. In addition, neither Prof Oates nor Dr Scott opined that the defendant ought to have removed the plaintiff from his mother's care at any stage before the intervention of the department in March 1986, following the plaintiff's physical abuse by his stepfather (earlier judgment, para 499). 78 Prof Oates in his report dated 14 April 1999, in commenting upon the engagement of Dr Waters, expressed the view that "A prompt early assessment by a skilled person such as Dr Waters should be an initial part of the assessment of the sexually abused child." 79 Prof Oates was asked to consider the significance of my findings concerning the delay in qualifying Dr Waters and the deficiencies in his instructions. In response, Prof Oates said he was "not convinced that an earlier assessment by Dr Waters would have made a lot of difference", and further that he was "not convinced that the outcome of [Dr Waters'] assessment would have been different if he had been given instructions as to what was being sought of him." This was, as I understand Prof Oates' report, because he regarded Dr Waters' assessment as being "a very thorough assessment". 80 Prof Oates was not required for cross examination and I see no reason why I should not accept what he wrote on the subject of delay in obtaining Dr Waters' assessment. Having considered Prof Oates report, I do not find it likely that the delay referable to the defendant's breach of duty caused the plaintiff any harm. Indeed, I find it unlikely. 80 Two immediate comments are appropriate about these passages: 1. Studdert J treated the plaintiff as bearing the ultimate legal onus of persuading him that the breaches of duty caused the putative injury. I have already concluded that he was correct in doing so. 2. The statements that "Indeed I find it unlikely" in JC §§72 and 80 constitute positive findings in the defendant's favour on the causation issues. For reasons which follow I conclude that these findings are available as "sufficient reasons to the contrary" to rebut the type of inferential reasoning approved in the Betts formula (assuming ex hypothesi that it was engaged). (d) The Betts dictum 81 The appellant challenged the correctness of Studdert J's statement at JC §49 that "In order to enliven a shift in the evidentiary burden of proof, the plaintiff must first prove prima facie that for which she contends". The appellant submitted that this overlooked the passages in Betts (Dixon J), Bennett (Gaudron J) and Chappel (Kirby J) which would cast an evidentiary burden on YACS to point to "sufficient reason" why the damage was not causally linked to the breaches of duty found by his Honour. Additionally, and necessarily, the appellant challenged the reasoning and conclusions in what I have described as the core passages of the judgment relating to causation. 82 For reasons which I develop below, I consider that the appellant's approach treats the Betts dictum in a mechanistic way, divorced from its factual context. The appellant overlooks the fact that Studdert J was not persuaded that the particular circumstances engaged a shifting of the evidentiary onus. And the appellant also fails to recognise that Studdert J decided the case on the basis of a positive satisfaction in the defendant's favour. 83 The oft-cited passage in the judgment of Dixon J in Betts (at 649) states that: … the breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty. 84 As Thomas JA points out in Batiste (at [7]), this was only part of a sentence in which Dixon J pondered the ambit of the English Court of Appeal decision in Vyner v Waldenberg Bros Ltd (1945) 61 TLR 545, a case concerned with a statutory rule of absolute duty. Indeed Dixon J's sentence commenced with the words "It is not necessary to enquire whether their Lordships meant more than that the …". Betts was itself a case of breach of an imperative statutory duty to securely fence dangerous machinery. There was no other competing inference, such as intentional self-injury, inconsistent with liability on the part of the defendant. Dixon J followed his statement with the comment: In the circumstances of this case that proposition is enough. For, in my opinion, the facts warrant no other inference inconsistent with liability on the part of the defendant. 85 Thomas JA concluded in Batiste that in such a context it is hardly surprising that Dixon J found it acceptable to link the accident to the breach "in the absence of any sufficient reason to the contrary". 86 In the passages I have quoted from Bennett, Chappel and Naxakis, it is clear that the High Court has endorsed the application of Dixon J's reasoning outside cases involving breach of statutory duty. In Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 467, Mason J said: When there is a duty to take a precaution against damage occurring to others through the default of third parties or through accident, breach of the duty may be regarded as materially causing or materially contributing to that damage, should it occur, subject of course to the question whether performance of the duty would have averted the harm. 87 As indicated above, Gaudron J cited this passage in Bennett (at 420) in support of her proposition (at 420-421) that: … generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect … it will be taken that the breach of the common law duty caused or materially contributed to the injury. 88 Gaudron J's "generally speaking" makes it plain that the process of reasoning endorsed in the Betts dictum is a generally, but not a universally, acceptable approach; and that it is one that will yield to contrary evidence showing that the breach had no effect. 89 It follows that the Betts dictum cannot be invoked to require a court to approach a causation issue divorced from its particular factual context. If it were otherwise, what is spoken of as a reversal of evidentiary onus "generally speaking" would more properly be described as a reversal of the legal onus. 90 My point can be illustrated by positing the breach of duty involved in a school authority allowing a very young child to leave school premises near a busy road ahead of the time when the child's parent would be expected to pick the child up (cf Carmarthenshire County Council v Lewis [1955] AC 549). Until one knows a little more about what happened to the child, one could not plunge into the mechanistic approach to the Betts dictum suggested by the appellant in much of his argument on appeal. There is a world of difference between the child being struck by a car near the school and the child being punched by an older sibling who found the child wandering (fortunately unharmed) and who administered a dose of unauthorised discipline. The injury flowing from the latter event could well be found causally unrelated to the school's breach of duty and/or not reasonably foreseeable as a consequence of it. But I venture to suggest that no-one determining these issues would dream of applying a formula taken from Betts and then solemnly asking whether there was evidence to rebut the inference of causation. 91 This discussion may well appear somewhat semantic, and it probably is. (Mr Shand QC accepted that it made no practical difference to his argument, whether the Court was dealing with a legal or evidentiary reversal of onus of proof (Tr p32).) But my point is that one cannot treat authoritative methods of probabilistic reasoning as if they were mathematical formulas. The injunction that the trier of fact use robust common sense on issues of causation requires such guidance to be followed in its particular and unique factual context. Only when the precise duty and the precise breach and the precise harm are known can the trier of fact consider applying the process of reasoning approved in the dictum. In other words, any shifting of the evidentiary onus depends upon the plaintiff establishing at least an arguable prima facie case of causation. 92 In Betts, there was failure to fence dangerous machinery and a serious hand injury suffered by a fourteen year old worker. 93 In Bennett, the Director of Community Welfare breached a duty to obtain independent legal advice for a State ward about his right to recover damages. The ward was in a detention centre and he had injured his hand when using a circular saw without a proper guard. Due to the Director's breach, the ward's right to sue for damages became statute-barred. In other words, a specific harm was proved (ie a valuable cause of action became statute-barred). The Director's breach of duty was held to have caused or materially contributed to the loss. On the facts, there was no reason to separate or distinguish the question of breach from causation. As Gaudron J explained it (at 422, citation omitted, emphasis added): That is because a duty is imposed by the common law by reason that it is a precaution which a reasonable person in the position of the person sued would have taken to prevent a foreseeable risk of harm of the kind suffered. Thus, questions of the sufficiency of the precaution to avert the harm are inevitably subsumed in the finding that there was a duty: a precaution is not classified as "reasonable" unless it can be said that its performance would, in the ordinary course of events , avert the risk that called it into existence. 94 Mason CJ, Deane J and Toohey J referred to the omitted advice as something that: would have changed the course of events , namely, the inaction of the appellant which led to the loss, and prompted instead a decision by him which would have both preserved and enforced his cause of action, thereby deflecting the loss which occurred (at 414, emphasis added) . 95 In Chappel, a treating surgeon's failure to warn the patient as to the risk of an operation after her specific inquiry was followed by the patient submitting to the surgery at his hands. That surgery caused injury. The plaintiff would have delayed the surgery if she had been warned. 96 Betts and the cases which follow it suggest an approach to reasoning that enables a robust trier of fact to proceed from breach and specific harm to causation. The decision-maker may infer causation if the breach was such that in the ordinary course of events (as perceived by the decision-maker) that type of harm is a consequence of the breach. Kirby J expressed the same notion in Chappel and Naxakis (passages quoted at pars 66 and 69 above) when he cited Betts as a case where breach was closely followed by damage. In such cases, unless the defendant can point to some particular reason why the instant case is outside the norm, causation may (but not must) be inferred. Simply because a risk is "not far-fetched or fanciful" (cf Wyong Shire Council v Shirt (1980) 146 CLR 40 at 48) does not mean that the trier of fact is required to infer that it came home or that the defendant's negligent conduct caused it to happen or materially contributed to its happening. 97 As Spigelman CJ pointed out in the passage from Seltsam already quoted (par 70 above at [109]), the tribunal of fact is entitled, but not required, to find causation if negligence caused an increased risk of injury and that risk eventuated. (e) Studdert J did not err in his treatment of the Betts dictum 98 For reasons explained elsewhere (pars 33 and 42) YACS' liability in tort requires the psychological damage which TC is assumed to have suffered to be shown to have stemmed from YACS' failure to take or initiate steps to remove TC from his mother in the period between February 1983 and September 1984. 99 Nothing in the learning about the Betts dictum compelled his Honour to conclude that the breaches led in the ordinary course of things to the harm suffered by the plaintiff. Unlike Betts, Bennett and Chappel there was no direct or frank injury stemming directly from the breach in the ordinary course of human experience. Nor did the damage follow closely upon the heels of the breach. 100 The present injury was two steps away from the breach. To succeed, TC had to prove that YACS' failure to act in relation to HM contributed to TC remaining with HM during the critical period and that that in turn contributed to persons other than HM sexually abusing TC. 101 Nothing in Betts prevented Studdert J from declining to infer causation in those circumstances, when he was not satisfied that the facts formed a reasonable basis for such an inference (cf JC §§49-50, passages quoted at par 76 above). (f) Betts cannot be invoked to prove damage as distinct from causation 102 One variant of the appellant's argument went as follows (Tr pp 21-24, 33-39): The delay between May and September 1984 left TC at risk. YACS failed to establish that the risk of sexual abuse did not come home during that period. Since damage by sexual abuse is the very type of risk that the duty was designed to protect against, "the damage was subsumed into the breach of duty" (Tr p24) by application of the Betts principle as explained by Gaudron J and Kirby J. 103 It is highly doubtful whether any such case was pressed at trial (see particulars and submissions at causation hearing). But there is a more fundamental problem. These submissions conflate distinct issues. 104 The very matter presently at issue is whether any sexual abuse occurred after May 1984. This is distinct from the question addressed in Betts, Bennett and Chappel whether specific harm proven to have occurred was causally linked to the breach of duty. In several of the passages in Chappel and Naxakis upon which the appellant relies, the justices spoke of the risk having eventuated or injury occurring within the area of the risk (Chappel per Gaudron J at 238, per McHugh J at 244, per Kirby J at 274; Naxakis at 279 per Gaudron J, at 312 per Callinan J). See also the passage from Heyman quoted by Gaudron J in Bennett at 420, especially the parenthetical phrase "should it occur". This essential qualification is implicit in all of the judgments. It is vital that the foreseeable risk actually came home, as Spigelman CJ demonstrates in Seltsam. 105 In the present case there was no finding of sexual abuse after May 1984. The causation hearing before Studdert J proceeded on the basis of that conclusion on the balance of probabilities, based on the facts proven at trial. Betts and its progeny cannot be used to convert a claim of continuing risk of harm (after May 1984) into proof that such risk actually came home during that period. And, absent proof of any actual harm, there was not even a factual context to ask the question whether, in the ordinary course of events, that harm was the sort of thing that flowed from the particular breach. (g) Even if the Betts dictum were engaged the reversed evidentiary onus was rebutted 106 In any event, Studdert J made a positive finding that "I think it unlikely, so far as I can make any assessment on the evidence before me" that the essential step (ie removal of TC from HM's care) would not have occurred even if YACS had not been in breach of its duty. This finding is made at JC §72 and supported by a detailed list of cogent circumstances. 107 Likewise with the causation finding relating to the sexual abuse notification. The concluding sentence in JC §80 shows that Studdert J found it unlikely that delay referable to the breach of duty caused any harm to the plaintiff. Once again that finding is cogently supported by the reasons given by his Honour in the passage quoted above. 108 I reject the appellant's contention (ground 17) that these conclusions are flawed because they stand on the back of YACS' breaches in the sense that the judge credited YACS' case with the benefits flowing from its flawed investigation in 1983-84. On the contrary, the findings were based upon the evidence at trial. The judge's findings show that he placed particular reliance upon contemporaneous documentary materials, which is hardly surprising in all the circumstances. 109 In matters such as this, the ultimate enquiry concerns "what would or would not have happened had the act occurred" (Bennett at 420 per Gaudron J). Studdert J was satisfied that it was actually unlikely that causation was established. I am unpersuaded of any error of approach or fact in his reasons. 110 Several of those reasons address the question whether more vigorous investigation in 1983 of the additional material concerning the April 1982 cot-tying allegation would have satisfied YACS that the event had occurred. Studdert J gives reasons why he inferred that it was unlikely that this would have happened (JC §72(i)-(iv)). This reasoning does not embody the fallacy attributed to it by the appellant, namely that it fails to allow for the lost evidence that would have come to light had the more efficient investigation taken place in 1983-84. Betts does not compel that issue to be decided in the plaintiff's favour. The issue had to be addressed and decided by Studdert J on the basis of the evidence before him at the trial. To suggest otherwise is a species of the fallacy which I sought to identify at pars 102-105 above, namely the fallacy of inferring a particular harm as distinct from a causal link between a particular breach and a particular harm. 111 But let it be assumed that more vigorous investigation in 1983 would have then established the truth of the cot-tying allegation. Non sequitur that YACS would have (a) sought and (b) obtained the removal of the child from his mother. 112 Studdert J explains why this was so at JC §72(v)-(vi). Proof in 1983 that the child was "neglected" under the Child Welfare Act would have been no light matter; and the pendency of the proceedings in the Family Court would have been a significant added complication. Furthermore, the 1983 breaches were confined to investigation of the cot-tying incident. Nothing about them required the inference that such investigation would have brought to light evidence of sexual abuse by persons other than the mother. 113 I also agree with the judge's conclusions as to causation relating to the 1984 delay in briefing Dr Waters (JC §§77-80). The (delayed) report of Dr Waters concluded that it was not in the child's interests to be removed from his mother. As Studdert J pointed out, there is no reason to infer that any different advice would have been given had Dr Waters been able to report earlier in the year. (h) Failure to consider alternative case 114 In grounds 12 and 13 the appellant contends that the trial judge erred in approaching causation on the basis that "the risk of exposure would only have been avoided if the defendant had acted to remove the plaintiff from his mother" (JL §69). The Court was taken to evidence led during the first phase of the trial which suggested that greater supervision of HM by YACS officers may have been an alternative to removal of the child from his mother's custody. The appellant submitted that greater supervision may well have prevented situations from arising in which abuse by persons other than the mother could have taken place. 115 The appellant should not be permitted to endeavour to construct such an alternative case at this stage in the proceedings. It may readily be accepted that YACS' statutory powers extended to monitoring the mother and counselling her. Indeed there is evidence that this is what was done from time to time. However, during the critical causation phase of the trial the appellant never argued that failure to be more effective in this regard was a cause of TC's injury stemming from the sexual abuse practised upon him by a person or persons other than his mother. Prior to the causation hearing in March 2000 the plaintiff filed a detailed statement of particulars as to the matters constituting a causal link between the breaches of duty found and the damage alleged to flow from such breaches (Orange 93). The relevant allegation was: The plaintiff asserts that armed with the information supplied to it pointing to the occurrence of assault, illtreatment or exposure or the existence of statutory neglect, the child should have been removed from the area of abuse or neglect, so as effectively to free him from any prospect of further damage, and that the YACS had the necessary power to do so and that the failure to respond to the duty found to exist, in the form of the breaches of duty which have been found to have occurred, involve a ' material increase in the risk' to which he was exposed or, conversely 'a material contribution to the injury' suffered. 116 There was some flirtation with a broader case during oral submissions at the causation hearing (Supplementary Black 8). But this was not seriously pressed, nor could it have been in light of the particulars. This highly speculative alternative case was not explored at trial and it is now too late to do so. The evidence led at trial on the broader possibilities of YACS' actions had been open-ended and was in no way focused on the small range of specific breaches ultimately established in the plaintiff's favour. Was there a duty of care? 117 Studdert J held that the State through YACS owed a duty to exercise reasonable care in the discharge of the mandatory requirements of both limbs of s145B(5) of the Child Welfare Act (ie investigate properly and take such action as is believed appropriate) (JL §158-191). 118 The learned judge commenced his reasoning by recognising that a duty to provide positive assistance to third parties is exceptional and dependant on what is usually labelled as a special relationship. He cited Hargrave v Goldman (1963) 110 CLR 40 at 65-66 (Windeyer J) and Pyrenees Shire Council v Day (1998) 192 CLR 330 at 368-9 (McHugh J). Reference was made to then current High Court discussion as to the methodology of determining whether or not a duty of care existed, including discussion of the proximity concept and the case law as to when a common law duty may be engrafted upon statutory duties and discretions (JL §§104-120). 119 He then turned to consider s148B in the context of the Child Welfare Act as a whole (JL §§122-150, being the passage set out at par 21 above). As to the terms of s148B(5), his Honour said that: 151 It is to be observed that the need to cause a prompt investigation was mandatory, as was the need to act if investigation satisfied the director the child may have been assaulted, ill treated or exposed but the action the director was then to take involved an element of discretion. 152 That the director had a discretion concerning the action he was obliged to take, if satisfied of the possibility of assault or ill treatment or exposure, did not of itself preclude the existence of a common law duty of care. Indeed, there are statements to the contrary to be found in Pyrenees. (He cited Pyrenees at 346 (Brennan CJ), 371 (McHugh J), 376 (Gummow J) and 427-8 (Kirby J).) 120 The judge was satisfied that the Act, s148B in particular, was introduced for the protection of a limited class, namely children at risk. He found no pointer that parliament did not intend to create a source of a private cause of action. Indeed s158 was seen to contemplate otherwise. 121 Studdert J acknowledged that, in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, the House of Lords held that no cause of action existed in English law in analogous circumstances. However, the legislative context was distinguished, particularly because there was no counterpart of s148B(5) in the English legislation (JL §§98-99, 164). 122 Studdert J was satisfied that it was reasonably foreseeable that any failure by YACS to respond appropriately to a notification under s148B could result in harm to the child concerned. He was also satisfied that the Child Welfare Act created the necessary proximity for a duty of care to arise. The vulnerability of a young child considered to be at risk was self evident (JL §§169-170). 123 Finally, his Honour considered whether it was fair, just and reasonable that the common law should impose a duty of care. (See now Sullivan v Moody [2001] HCA 59 at [49].) In this context Studdert J addressed the policy considerations said to negative a duty of care in the Bedfordshire County Council Case at 749-51 (Lord Browne-Wilkinson), Hillman v Black (1996) 67 SASR 490 (Full Court of Supreme Court of South Australia) and other cases; as well as those pointing in the opposite direction in Attorney-General v Prince and Gardiner [1998] 1 NZLR 262 (New Zealand Court of Appeal). 124 Studdert J concluded that YACS owed TC a duty of care in the discharge of the mandatory requirements of s148B upon receipt of notifications falling within that section (JL §§185-191). 125 Much time was spent in the appeal in attacking and defending these conclusions. We were referred to a number of recent cases in Australia, New Zealand and the United Kingdom (including CLT v Connon (2000) 77 SASR 449, B v Attorney General [1999] 2 NZLR 296 and Barrett v Enfield London Borough Council [1999] 3 All ER 193). I would conclude that the issue is an arguable one in the sense that a statement of claim alleging the particular duty found in the present case ought not to be struck out. At the very least the reasoning of Studdert J demonstrates this. See also Williams v The Minister Aboriginal Land Rights Act 1983 and the State of New South Wales [2000] NSWCA 255 at [160]ff. In my view it is unnecessary to go beyond that. The appeal can be disposed of on other grounds. The issue is a difficult one and is best addressed by this Court only when it is necessary to do so and in the light of the latest guidance from the High Court and elsewhere on the issues. The possible impact of s158 of the Child Welfare Act, upon which both sides placed great (and probably excessive reliance) may not be a factor in later litigation (if any), given that the Child Welfare Act was repealed upon the commencement of the Children (Care and Protection) Act 1987. The later Act appears to contain no counterpart to s158. YACS' challenges to the findings of breach (a) The cot-tying allegations 126 On 2 February 1983 HF returned to Mr Finch at the Stanmore office, accompanied by Mrs Denley. She said that she resided near HM and was a friend of HM, although Mr Finch was told later that day by a worker at Marrickville refuge that she was in fact living with HF (JL §§230-1). 127 HF produced three affidavits, two of which referred to an incident in March 1982 where TC was allegedly roped to a cot while the mother was out. This allegation had been made previously by the father and it had been investigated in late 1982 by Mr Plater, in circumstances that the primary judge held to be adequate (JL §§214-220). 128 The YACS officer, Mr Finch, determined that the complaint which was the subject of the affidavits would be "re-examined". Mr Finch went to the refuge that day and spoke to two workers there. They denied the neglect alleged of HM and he believed that what he had been told was reliable (JL §36, 230-1, 236-7). Nevertheless, Mr Finch expected that the report would be followed up by YACS' Sydney office and that HM would be interviewed (JL §233). 129 The three affidavits shown to Mr Finch, and two more, were forwarded to the regional director of YACS (via the Shadow Minister for Health and Community Services, Mrs Rosemary Foot) on 16 March 1983 (JL §233). 130 The trial judge summarised the five affidavits as follows (emphasis added): 234 I now pause to refer to the content of the affidavits which HF had brought to the notice of YACS and which was added to by Mrs Foot in the following month: (i) The affidavit of Margaret Denley was sworn on 1 February 1983. In that affidavit Mrs Denley said she lived at the Marrickville Women's Refuge between July 1982 and September 1982. Her affidavit evidenced several allegations of ill-treatment of TC by HM. The deponent referred to occasions when HM smacked TC with an open hand across his face, his back and his legs, and of an occasion when HM was restrained from hitting TC with a rubber thong. She also stated that HM very often went out at night whilst she was living at the refuge, leaving TC in his room there. The affidavit contained no reference to TC being tied to a cot. (ii) The affidavit of Georgina Daskalopoulos was sworn on 12 October 1982. This deponent stayed at the refuge over the Greek Easter in March 1982. She stated there was an occasion then when she found a baby in a cot, with "a rope tied around its waist with the ends of that rope tied to either side of the cot." Later she said HM returned to the refuge and to the child. (iii) Joanna Papakonstantinou also swore an affidavit of 12 October 1982. She said that she lived at the refuge in February and March 1982 and recalled HM as a resident there then. She said HM left her child in the refuge at night on a frequent basis and she said she recalled an occasion when she observed TC "lying in the cot with a rope tied around his stomach and torso with the ends of the rope being tied to the sides of the cot." She said HM offered no explanation for tying the child to the cot when asked to do so. (iv) The affidavit of Penny Tokatlidis was not sworn until July 1983. The deponent's earlier statement prepared, on or after 4 February 1983, was however provided to the department by Mrs Foot in March 1983. The statement and the affidavit from this source cover much the same ground when the two documents are compared, and each contained a number of allegations against HM in the way she mistreated TC at the refuge. This deponent said that she lived at the refuge in 1980 and 1981. She said that she saw HM hitting TC very hard on the head and other parts of his body. She said she also saw HM kick TC and throw things at him. She also spoke of the Greek Easter incident. Mrs Tokatlidis claims she observed TC tied to his cot with a thick rope: "One end of the rope was held around the side of the cot and the other end had been tied around [TC's] waist." (v) The affidavit of Peggy Brunner was sworn on 7 February 1983, a matter of days after HF and Mrs Denley had attended on Mr Finch. Again this affidavit contained an assertion that during the Greek Easter period of 1982 this witness saw TC tied in his cot at night on an occasion after HM had gone out. Mrs Brunner lived at the refuge between January and June 1982 and in her affidavit she asserted she had seen episodes of physical abuse of TC by HM in that time. She asserted she had seen HM slap TC repeatedly across the face and use abusive language in addressing him. 131 In recording that February-March 1983 was the time of the first notification that, in light of the findings as to breach, is of continuing relevance, I am not overlooking the fact that this material did not come out of the blue. It called for assessment in light of the information already at hand, including information based upon visits and reports after the date of the alleged cot tying incident and before February 1983, as well as the assessment of YACS officers as to the credibility of HF as an accurate and unbiased complainant. Each party to the appeal seeks to make much of this obvious contextual consideration, although the appellant has the benefit of findings as to breach and does not seek to go beyond those findings. 132 The primary judge described the allegations coming from these five sources as serious. He considered the response of Mr Finch, Mr Hanrahan and Mrs Burgess (JL §§235-244). 133 It was held that Mr Finch should have interviewed Mrs Daskalopoulos and not just the workers at the workers at the refuge (JL §§236-8). 134 Mr Hanrahan interviewed HM at home on 25 February 1983 and 7 March 1983. He concentrated on what he then saw and learnt, describing it as "a child in a loving relationship with his mother" (JL §240). He saw no evidence of any abuse. Mr Hanrahan emphasised in evidence that his concern was with the present, although (when shown the Tokatlidis statement for the first time in cross examination) he acknowledged that it described appalling conduct that, had he been aware of it, he would have considered it called for immediate investigation and probably the interview of the mother (JL §§241-2). 135 Mrs Burgess was a YACS manager with relevant oversight at the time. She did not seek to see the affidavits and explained that as manager she would not ordinarily be involved in interviewing unless supervising a junior officer. According to Studdert J (JL §243), she explained her reason for not calling for the affidavits as: (i) the affidavits referred to events that were a year old (T1437); (ii) it was difficult to test affidavits outside the court processes (T1448); (iii) the affidavits were going to be tested in the Family Court (T1437); (iv) Mrs Denley was unfavourably known to her (T1453, 1933). 136 The judge's conclusions were: 247 Each of these officers of YACS impressed me as being an honest witness, and I did not conclude, generally speaking, that any one of them was other than conscientious. Nevertheless, it seems to me that complete investigation into the evidence presented by HF and Mrs Denley on 2 February 1983 warranted the interview of the remaining available witness, Mrs Daskalopoulos, and the interview of HM, in which the deponents (i), (ii) and (iii) were identified to her and the assertions each of those deponents made were expressed, in order to obtain HM's specific response. 248 Then later on, when YACS received the Tokatlidis statement and the affidavit of Mrs Brunner, again having regard to the serious matters raised, their substance warranted the interview of these witnesses, and also further interview with HM concerning such substance. That, of course, was not done. 249 It does not seem to me that the dates of the events referred to in the affidavit material justified the failure to further investigate in the manner I have identified. 250 True it is that the age of the allegations when they came to the notice of YACS was a relevant matter, because if a child was brought before the Children's Court under Part XIV of the Child Welfare Act , it was necessary to prove that the child was at that time a "neglected child" . The language of the statute, and I have referred to the relevant provisions earlier, directs the court to consider the present position. 251 Section 82 requires the court to make a finding in terms that use the present tense. The court may do one or other of the things that it is empowered to do under sub-s (1) if it "finds that a child… is a neglected…child…" . 252 However it does not follow from the language of the Act that an act of mistreatment that occurred twelve months before a child came before the Children's Court would necessarily be irrelevant. Any mistreatment could be indicative of systematic abuse, and in any event it seems to me that the more serious an episode of abuse, the more widespread the need for investigation. Indeed, Whale v Tonkins (9 Fam LR 410) is authority which is in point. In that case the Court of Appeal determined that a magistrate was in error in rejecting evidence from a child's school teacher that had been gathered over a period of several months prior to the matter coming before the court. In a judgment with which the other members of the court agreed, Hutley JA said at 411: "Guardianship is a continuing state. When the court is enquiring whether a child is under incompetent or improper guardianship, though it has to find that existing at a certain date, it is in no way concerned with events close to that date; it is concerned with all evidence which is relevant, that is, evidence which can make more probable or less probable a finding as to the kind of guardianship the child is experiencing. The enquiry may cover years." 253 (I suspect there is a typographical error in the above passage and that "no way" should read " not only" .) 254 It is to be recognised that YACS may well have faced difficulties in assessing the material available had there been a complete investigation. 255 Each of the affidavits above referred to was prepared for the purposes of the proceedings which at all relevant times were pending in the Family Court. Mrs Burgess was aware of those pending proceedings and I consider Mrs Burgess was realistic in acknowledging the difficulty of testing affidavit material outside the court processes. 256 Indeed the difficulties which Mrs Burgess perceived in assessing the reliability of affidavits "outside the court process" were encountered inside that process by the judges who heard the matter in the Family Court. The various deponents gave evidence before Pawley J. (Peggy Brunner's affidavit was introduced in the current proceedings as Exhibit T.) His Honour, in the course of his judgment delivered on 30 August 1983 (part of Exhibit 9 in these proceedings), said he found those witnesses "unsatisfactory" and that he "would hesitate to place reliance on their evidence". Having reviewed their evidence about the cot episode, the judge said that he found it "quite impossible to know where the truth of this matter lies". 257 Later in the ultimate proceedings in the Family Court before Bulley J, his Honour, after hearing evidence from Mrs Tokatlidis and from Mrs Brunner, assessed their evidence thus (at p 123 of his judgment) - Mrs Tokatlidis (Jackas): "I was not impressed by this witness. I felt she was far from careful in giving her evidence, her demeanour was poor, her recollection did not seem to be reliable. I consider it unsafe to place credence on her testimony." Mrs Morund (formerly Brunner): "She had virtually no recollection of the events at the refuge in relation to which she was called to testify. Again I consider it unsafe to rely upon her affidavit at all." 258 I do not regard those judicial findings as binding me as the tribunal of fact in this case, but I refer to them by way of emphasis of the difficulties that would or may have been experienced by YACS officers called upon to assess conflicting statements without the benefit of court process. I accept that Mrs Burgess perceived the difficulties of assessment that she expressed and that those difficulties may have influenced the extent of the investigation undertaken. 259 However, whatever difficulties of evaluation of such evidence may have confronted the officers of YACS, the allegations contained in the sources identified in para 234 (i) to (v) were of such a serious nature I find that they should have been further investigated in the various respects I have identified. The failure to do so was not excusable because of the time that had elapsed since the events asserted were alleged to have occurred nor was such failure excusable on any other basis. I find that the shortcomings in the investigation of such serious allegations amounted to a failure to exercise reasonable care. 260 Even though the misconduct alleged against HM in the material that was made available to YACS in the first quarter of 1983 related to events that had occurred up to twelve months previously, I accept, as Professor Oates opined, that conduct of the nature alleged, if it did occur, was only occasionally of a "one-off" nature. Hence the need for a complete investigation and that need was not met. [In §§261-4, Studdert J considered individual officers to whom the failure might be attributed.] 265 Ultimately it does not matter how it came about that the matter was not sufficiently investigated, because it is clear that the responsibility for the inadequacies of investigation lies with YACS. It was the officers of YACS who failed to do what the exercise of reasonable care required. 266 I should add that if such investigation had achieved nothing more, it may well have prompted the investigating officer to record that he was unable to determine whether the misconduct alleged had happened or not; in a sense an open finding. Such a record could potentially have been more helpful to those later reviewing the history of the matter. For instance, Ms Boulter referred in Exhibit A(jj), (kk) and (ww) to "unsubstantiated" complaints and in Exhibit A(xxx) Mr Lungley recorded "On no occasion has there been any evidence to substantiate the allegations". This latter entry was plainly inaccurate. 267 Nevertheless I do not find established by the evidence an occasion on which an officer of YACS failed to address a fresh complaint because of the history recorded in the YACS file. 137 It is interesting that Studdert J concluded that the physical mistreatment of TC by HM which was the subject of the five affidavits/statements (ie the cot tying incident) was not proved on the balance of probabilities (JL §§268-276). Interesting, but not ultimately relevant because the case now pressed is confined to one based on sexual abuse that would have come to light if the notifications of February-March 1983 and May 1984 had been followed up with reasonable care and diligence. I do not understand the State to argue that the failure to prove the cot tying incident renders the findings of breach irrelevant. 138 Other allegations of HF concerning physical abuse by HM in 1982-May 1984 were investigated at trial and found not to have been established on the balance of probabilities (JL §§268-317). Interspersed with these findings are findings that YACS officers responded appropriately to these allegations when made during this period (eg JL §§290, 297). There were several home visits resulting in conclusions by YACS officers and Family Court counsellors favourable to HM as a continuing custodial parent at the time. The validity of these conclusions was accepted by Studdert J. 139 As regards the investigation concerning the cot-tying incident, YACS' main point is that the alleged incident was almost 12 months old when the additional documentary evidence was first presented to YACS. Reliance is placed on Dr Scott who reported: Given the length of time since the alleged incident, the mother's hospitalisation at the time of the complaint, the refuge workers' denial of the incident and the view expressed by the Family Court Counsellor who was responsible for the case in relation to proceedings occurring in the Family Court at the time, the level of intervention by the Department in relation to this allegation would appear appropriate. 140 It was further submitted that there was no need to interview the available deponents because the information that they could give was already set out in their affidavits. 141 YACS submitted that its statutory duty to "investigate" did not convert it into a detective agency. The judge's conclusion that the mother should have been confronted with the material in the affidavits is said to have been a counsel of perfection. The duty (if it existed) was one of reasonable care. Simply to point to something that might have been done is not to establish that failure to do it constituted breach of duty. 142 I accept these submissions. YACS' proper concern was the current welfare of the child. YACS was not a detective agency set up to hunt down and prosecute past misconduct. True, the past could be an indicator of the present, but there were matters of degree. The cot-tying allegation had been originally investigated by Mr Plater. Mr Finch decided that the matter should be "re-examined" in light of the affidavits. He investigated the matter to some degree by questioning workers at the refuge. Mrs Daskalopoloulos was understandably viewed as unlikely to cast greater relevant light on the issue by being interviewed about her affidavit. HM was receiving regular visits from Mr Hanrahan in 1983 who was able to observe HM's current rapport with the child; the signs were favourable in 1983. The mother had left the refuge in November 1982. Dr Scott provides convincing reasons why pursuit of the mother to investigate this past incident would have been perceived as counter productive (Blue 876-7, Black 1744-5). The YACS manager with relevant oversight (Mrs Burgess) formed a considered and, in my view, defensible decision not to conduct an independent investigation of the material in the affidavits: she took into account the fact that the matters were to be explored in the pending Family Court proceedings. 143 In cases involving negligence by omission it is always pertinent to remind oneself that the legal standard is reasonableness, not perfection. Very recently the High Court stated in Derrick v Cheung [2001] HCA 48 at [13]: Few occurrences in human affairs, in retrospect, can be said to have been, in absolute terms, inevitable. Different conduct on the part of those involved in them almost always would have produced a different result. But the possibility of a different result is not the issue and does not represent the proper test for negligence. That test remains whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care. 144 Applying this standard I am persuaded to the opposite conclusion to that reached by the trial judge. (b) The sexual abuse allegation 145 The second triggering notification occurred in May 1984. 146 On 7 May 1984 Ms Poppy Harris, a psychologist at the Royal Alexandria Children's Hospital was telephoned by HF and told that TC had requested the father to "suck his cock - saying mo. Does this regularly" (Blue 119). Ms Harris arranged immediately for histories to be taken by Dr Younan and Mr Malak. She also alerted YACS by sending a Child at Risk Notification which was received at the Sydney office of YACS on 11 May 1984 (Blue 119). 147 The following day Dr Goldberg, a clinical psychologist, tested and assessed TC. She concluded that TC had been sexually abused by some experienced female person. Her report recorded that: What is both unusual and significant is the child's interest in actively performing cunnilingus, which by itself is not directly sexually stimulating to the doer and therefore this sort of interest or behaviour cannot have been incidentally learnt, and must have been acquired through active coaching and encouraging reward by some experienced female person, and probably one older than the child. 148 There were proceedings between HM and HF in the Family Court on 14 May 1984. On that day Pawley J made an order for separate representation of TC. A short time later Mr McCourt became his solicitor in the Family Court proceedings. (Mr McCourt was one of the five defendants sued by TC in these proceedings.) 149 YACS' decisions to arrange a case conference for 21 May 1984 and thereafter to obtain a full psychiatric assessment as a prelude to any drastic intervention were held appropriate by Studdert J (JL §§485-6, 493-503, 508). 150 Dr Goldberg's report was received by YACS on 11 July 1984 (JL §74). 151 The specific findings of breach referable to the May 1984 notification were (JL §§507-517): 507 I have earlier traced the sequence of events between the receipt by YACS of the relevant notification of 11 May 1984 and the preparation and receipt of Dr Waters' report on 1 November 1984 (see para 320 and following). It seems to me that there was delay in engaging and instructing Dr Waters. 508 What had emerged in May 1984 was an allegation of a very serious nature, and it was therefore an allegation which in the interests of TC required urgent attention. Whilst I accept that the decision to seek Dr Waters' assessment was the appropriate response, the implementation of that decision warrants criticism. The sequence of events I reviewed earlier does not indicate that the matter did receive urgent attention. 509 I am mindful of the evidence of Dr Scott about this delay and I accept the evidence that she gave. Dr Scott regarded the delay as unacceptable (T1818) and so do I. From the material with which Dr Scott had been provided, which of course comprised all the exhibits, Dr Scott could not account for the delay (T1884). 510 Whilst it was Ms Harris, not an officer of YACS, who apparently undertook to arrange for a prompt psychiatric assessment, Mr Lungley was made case coordinator. 511 It seems to me that it is YACS that must accept responsibility for the failure to arrange for a prompt psychiatric assessment and because of his role in the matter Mr Lungley must be held responsible for this failure. 512 It does not appear that Dr Waters was appointed to undertake the assessment until the conference on 9 July 1984, at which conference it would seem, in the absence of Mr Lungley through illness, no officer of YACS was present. 513 Dr Waters wrote a letter to Mr Lungley on 16 July 1984 seeking any documents that might assist him. For some reason that letter has a receipt stamp in the Sydney office of YACS as late as 2 August 1984, but the relevant material had been forwarded by Mr Lungley the day before, so that it is apparent that Mr Lungley appreciated the need to give Dr Waters material before 2 August. The material which Mr Lungley forwarded was a report which he wrote on 31 July, and that was of a historical nature, and the reports from Mr Malak, Ms Goldberg and Dr Rose. He also forwarded a report of Ms Boulter of 17 June 1983. With the exception of Mr Lungley's report of 31 July 1984, none of that material was new, and the enclosures could have been made available to Dr Waters as soon as he had been appointed. 514 It emerged from the evidence Dr Waters gave that he received no letter of instructions before undertaking his assessment. Indeed, he was not clear as to the source of his instructions, as the following extract of his evidence illustrates (T2140-2141): Q. By whom did you perceive yourself to be retained in this assessment? A. At the time I thought myself to be retained by the - actually by the separate representative, and that's who I addressed the report to. Q. The representative of the child? A. The child, yeah, Robert McCourt. But in fact I think probably technically I was by the department. Q. Did you get any letter of instruction outlining what you were being asked to do, or any letter that sent you documents? A. Well the short answer to that is I don't believe so. I certainly got a lot of documents, but I wrote - I sent out - as a result of this July meeting I sent out a number of letters under my own letterhead requesting documents. I think that that's where I got most of them from. 515 As late as 11 September 1984, Dr Waters wrote to Mr McCourt (see Exhibit 10G), apparently then considering that he had been retained by Mr McCourt, and explaining that he had only just received the documents he needed: Further to our meeting in July, I have only just received the majority of the documentation which I desired prior to my seeing [TC] and his parents. For your information, I have scheduled an appointment with [HM] and [TC] for 10.30 Thursday September 13th, and an appointment with [HF] and [TC] for Thursday September 20th at 10.30am. I anticipate that further appointments will be necessary to complete the assessment, however I will attempt to complete my report in as short a time as possible. 516 It is to be appreciated that once Dr Waters was equipped with the material he needed he could not complete his assignment overnight, including as it did so many interviews. Nevertheless, accepting that Dr Waters' engagement was part of the YACS investigative process arising from the notification in May 1984, it seems to me that Mr Lungley, in the discharge of his duty to exercise reasonable care in making a prompt investigation, should have taken the following steps: (a) to engage Dr Waters promptly; (b) to give him clear written instructions as to what was being sought of him; (c) to inquire of the doctor promptly what material he needed and to furnish such material as soon as possible, so as to see to it as best he could that the assessment proceeded expeditiously. 517 I find that Mr Lungley failed in those three requirements and that this amounted to a failure to exercise reasonable care in the circumstances, which was causative of such delay as there was up to 10 September 1984. 152 Also relevant to these findings were the YACS instructions (Ex L) that had been issued some time after the passing of s148B in 1977: In conjunction with recent legislation it is proposed to establish a Central Index of cases of child abuse known to or notified to the Department, in the Child Life Protection Unit being established. The basis for this central index will be the cases previously referred to the Stanmore District Office under existing circular instructions, plus other cases known to the Department and under supervision, but not previously notified to Stanmore. … The cases concerned are those which fall within the following definition - "Any child under the age of 16 years who has sustained non accidental injury as a result of actions on the part of a parent having his or her care, these actions usually being associated with a degree of violence on the part of such a person." 153 On a further sheet of exhibit L the following notification procedure was recorded: The notification procedures establish the basis for intake, assessment, case planning and management, and review. These procedures are important to the safety of the child; and they aim to give additional protection to the children through the Central Register. All cases of suspected child abuse and neglect which come to the notice of a Departmental Officer MUST be officially notified to the Montrose Family Crisis Service. At the time of notification a Departmental Officer is nominated as Case Co-ordinator. He/she is responsible for ensuring that action to obtain assessment is taken. Assessment is a critical process in the management of child protection cases. Poor or inadequate assessment may: - lead to an insufficient response to the family which, in turn, might more likely result in failure to take such action or offer such assistance as may be needed to help those caregivers responsible for the 'at risk' child, to avoid situations where further injury or neglect occurs; - result in continued involvement of officers that is wasteful of scarce resources of the Department, and an unnecessary invasion of family privacy, when intervention is not justified; or - result in unnecessary and wasteful contention between the professionals and other service deliverers involved in the case. An initial assessment must take place as soon as possible after initial notification. Further assessment, however, needs to canvass all the relevant issues outlined in Form 2; not necessarily in one or even two interviews. The Form is not a substitute for a thorough written assessment. 154 As regards delay in obtaining Dr Waters' report, YACS' principal submission is that it was not its responsibility. Dr Waters had never been "retained" by YACS. The reports that he gave in late 1984 were always addressed to Mr McCourt, the solicitor who had been appointed by the Family Court to act as separate representative for TC. It was therefore Mr McCourt's responsibility to give Dr Waters clear instructions of what being sought of him and to do so promptly. In the circumstances, YACS was entitled to assume that Mr McCourt would follow matters up with proper dispatch. On 16 July 1984 Dr Waters wrote to Mr Lungley requesting previous reports and assessments. These were supplied on 1 August 1984. YACS submits that a delay of this magnitude could not constitute a breach of any duty of care. 155 Secondly, YACS submitted that time was not acutely of the essence because the Family Court was involved in decision-making about the interim custody of TC during this period. 156 Thirdly, YACS relied upon the father's delay (until 22 June 1984) in giving consent to Dr Waters' psychological assessment of TC. No psychological assessment of TC could be made without the consent of both his father and mother. The consent of the mother was given immediately, but the father did not consent until 22 June 1984 (JL §328). YACS therefore submits that no delay prior to this date can be attributable to its action or inaction. 157 As regards the period between 1 August and 10 September 1984 (when responsibility for any further delay passed out of YACS' hands (see JL §§516-517)) YACS' submission is that the matter was then under the control of Dr Waters. It would not have been reasonable for YACS to have taken further steps while awaiting the expert's assessment in this most delicate matter. Studdert J's findings at JL §504 support this. 158 As indicated above, the breaches found by Studdert J were attributable to Mr Lungley and his failure to brief Dr Waters promptly. Mr Lungley did not give evidence at the trial and YACS has been unable to locate him. He had resigned from the Department and left Australia. There was therefore no suggestion that an adverse inference should be drawn against YACS because of its failure to call this witness. 159 Studdent J's findings referable to this breach have already been set out (par 151). It is clear from JL §509 that the judge relied in part upon the evidence of Dr Scott at T1818 (Black 1768). There Dr Scott indicated that the type of behaviour in the child that had been revealed was one that required "vigorous assessment" and "urgency in terms of proceeding with further exploration". The witness cautioned against any sudden removal of the child from his primary figure of attachment, but clearly thought that Dr Waters' investigation should have been brought to a head faster than it was. In answer to a question as to how long it might take to carry out sufficient investigation of the position to enable a decision to be made Dr Scott said: What I would have liked to have seen in this instance was a more rapid psychiatric assessment than occurred, not in the sense that it was more superficial, the same number of interviews which were actually very extensive, but to have been carried out a little faster and for the report to have been made available earlier. But I think the correct course of action was to proceed with an assessment of the child and the child in the presence of both parents separately so that I think that the assessment of Dr Brent Waters was a very appropriate intervention. I think the delay in it was not what I would like to have seen. See also Black 1792. 160 This evidence made no attempt to attribute or apportion blame for the time lapse between 11 May 1984 (notification) and 1 November 1984 (Dr Waters' report). It is clear that YACS was not responsible for at least some of this delay. 161 The pendency of proceedings in the Family Court did not relieve YACS of its statutory duties stemming from s148B(5). But the pendency of those proceedings was clearly relevant to any issue of breach. Three days after Ms Harris' Child at Risk Notification on 11 May 1984, the Family Court ordered separate representation for the child (Mr McCourt). On 30 May 1984 there was a contested hearing of an application by HF for interim custody and guardianship. This application was dismissed and the Family Court (Ellis J) ordered that TC be surrendered to HM. 162 The seriousness of an allegation of sexual abuse, supported as it was by Dr Goldberg's report received by YACS on 11 July 1984, meant that time was of the essence. The very fact that it was inappropriate to disturb the interim custody arrangements touching this unfortunate child and his warring parents only heightened the need for prompt action. It was clearly appropriate for YACS to use Dr Waters' investigation for its own investigative purposes, but YACS was bound to act with despatch in giving him every assistance within its power. As soon as the father's consent was forthcoming on 22 June 1984 YACS (ie Mr Lungley) should have acted with greater dispatch. It is true that his delay was ultimately found to have had no causative impact. Nevertheless, if one addresses the breach issue separately (as Studdert J did) and assumes the relevant duty of care, I am not disposed to disagree with the trial judge's conclusion, even though the period of breach spanned only a matter of weeks. 163 Since the notice of cross appeal sought no orders beyond dismissal of the main appeal it really served the function of a notice of contention. It has been treated that way. 164 I propose the following orders: 1. Notice of cross appeal struck out. 2. Appeal dismissed with costs. 165 PRIESTLEY JA: In pars 78 and 79 of his reasons Mason P sets out the passages from the reasons of Studdert J which were critical to his conclusions, adverse to the plaintiff, on the causation issue in the case. Mason P then explained why , in his opinion, the plaintiff's submissions on appeal were unsuccessful in their attack on Studdert J's reasoning. I agree with both Studdert J and Mason P on that aspect of the case. 166 It follows from this that, in my opinion, the orders proposed by Mason P should be made, without any need to express final opinions on the other, and difficult, issues argued in the appeal. I add however, within that qualification, that nothing in the plaintiff's arguments on appeal appeared to me to justify interfering with any part of the trial judge's reasoning or conclusions. 167 I agree with the orders proposed by Mason P. 168 BEAZLEY JA: I agree with Mason P. **************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.