Court of Appeal Supreme Court New South Wales Medium Neutral Citation: DC v State of New South Wales [2016] NSWCA 198 Hearing dates: 3 and 4 March 2016 Decision date: 10 August 2016 Before: Basten JA at [1]; Ward JA at [161]; Sackville AJA at [373] Decision: (1) Appeal allowed. (2) In each of proceedings 2008/289325 and 2008/289326 set aside the judgment entered in favour of the first defendant and the orders made on 22 May 2015 by Campbell J (other than the order in relation to the costs of the second defendant of the respective proceedings to the extent that the second defendant has incurred costs separate from those of the first defendant in defending the proceedings) and in lieu thereof order (i) in both proceedings that judgment be entered for the plaintiff against the first defendant. (ii) in proceedings 2008/289325 (in which the plaintiff is DC) order the first defendant to pay to the plaintiff damages in the sum of $536,463.60 plus the sum of $790 for interest on past out of pocket expenses (the interest on past out of pocket expenses subject to provision to the respondent's legal representatives of evidence of actual payment of those expenses). (iii) in proceedings 2008/289326 (in which the plaintiff is TB) order the first defendant to pay to the plaintiff damages in the sum of $939,435.60 plus the sum of $4,022 by way of interest on past out of pocket expenses (the interest on past out of pocket expenses subject to provision to the respondent's legal representatives of evidence of actual payment of those expenses). (3) Submissions in relation to the question of costs of the appeal and of the proceedings below (no more than 3 pages) to be filed by the parties within 7 days, with the intent that costs orders will be made on the papers. (4) Liberty to the parties to apply within 3 days if there is any arithmetical error in the calculation of the amounts, having regard to these reasons, in accordance with the respective schedules submitted with the supplementary submissions. Catchwords: TORTS – negligence – liability of statutory authority – where authority notified of child physical and sexual abuse – whether finding that abuse did not continue in period after notification was erroneous – whether duty authority owed appellants in exercise of its statutory powers extended in the circumstances of this case to obligation to report abuse to police – whether failure to notify was a necessary condition of harm suffered by appellants Legislation Cited: Child Welfare Act 1939 (NSW), ss 4, 72(j), 73, 76, 78, 82(2), 125, 133, 134, 135, 136, 146, 148, 148A, 148B, 148C, 149, 158, Pt XIV; Pt XVII Children and Young Persons (Care and Protection) Act 1988 (NSW), s 9; Ch 3 Civil Liability Act 2002 (NSW), Pts 3, 5, ss 5B, 5D, 5E, 43A, 44, 46 Crimes Act 1900 (NSW), s 352 Crown Proceedings Act 1988 (NSW), s 5 Miscellaneous Acts (Community Welfare) Repeal and Amendment Act 1987 (NSW), s 3 Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 Bales v Parmeter (1935) 35 SR (NSW) 182 Board of Fire Commissioners of New South Wales v Ardouin (1961) 109 CLR 105 Bonnington Castings Ltd v Wardlaw [1956] AC 613; 1 All ER 615 Bowman v Farnell (1886) 7 NSWR 1 Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 Clarke v Bailey (1933) 33 SR (NSW) 303 Commonwealth v McLean (1996) 41 NSWLR 389 DC v State of New South Wales [2009] NSWSC 297 DC v New South Wales [2010] NSWCA 15 Farnell v Bowman (1887) 12 App Cas 643 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 Maguire v Simpson (1977) 139 CLR 362 Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 Michael v The Chief Constable of South Wales Police [2015] UKSC 2 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 Nicholson v Nicholson (1994) 35 NSWLR 308 Petchell v Du Pradal [2015] QCA 132 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 Pyrenees Shire Council v Day (1998) 192 CLR 330; [1998] HCA 3 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 Robinson Helicopter Company Inc v McDermott [2016] HCA 22 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; [1998] HCA 5 Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; 3 DDCR 1 State of New South Wales v Burton [2006] NSWCA 12 State of New South Wales v Burton [2008] NSWCA 319 Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215 Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537 TB v State of New South Wales [2009] NSWSC 326 TB v State of New South Wales and Quinn; DC v State of New South Wales and Quinn [2015] NSWSC 575 TC v State of New South Wales [2001] NSWCA 380 Van Colle v Chief Constable of the Hertfordshire Police; Smith v Chief Constable of Sussex Police [2009] AC 225 Wallace v Kam [2013] HCA 19; 250 CLR 375 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 X (Minors) v Bedfordshire County Council [1995] 2 AC 633 Texts Cited: Harold Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2003, LexisNexis Butterworths) Category: Principal judgment Parties: DC (First Appellant) TB (Second Appellant) State of New South Wales (Respondent) Representation: Counsel: A S Morrison SC with K Pryde and N Morrissey (Appellants) Ms P Wass SC with I Harvey (Respondent) Solicitors: Graham Jones Lawyers (Appellants) Crown Solicitor's Office (Respondent) File Number(s): 2015/00176396 Publication restriction: Restriction on identification of appellants Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2015] NSWSC 575 Date of Decision: 22 May 2015 Before: Campbell J File Number(s): 2008/00289325; 2008/00289326 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This Headnote is not to be read as part of the judgment] The appellants, DC and TB, are sisters who, as children, suffered ongoing sexual and physical abuse by their stepfather. They commenced proceedings against the State of New South Wales and Ms Quinn, a case officer with what was then the Department of Youth and Community Services (the Department), claiming damages for the alleged breach of a duty of care owed to them. An extension of the limitation period was granted for the bringing of those claims. The claims relate to a period of a few months commencing from the time TB first complained of the abuse to the Department in April 1983. The appellants contended that the Department breached its duty by not reporting the abuse to the police and that, had it done so, they would have been protected from the possibility of any further abuse on the basis that the step-father would have been charged. In 2001, the appellants reported the abuse to the police. After the commencement of the criminal trial in 2005, the stepfather pleaded guilty to nine charges. At the time of the abuse, the powers and obligations of the Department's officers were governed by the Child Welfare Act 1939 (NSW). Under s 148B of that Act, on notification to the Director of certain matters involving the abuse or neglect of children, the Director was required to cause an investigation to be undertaken. Where satisfied that abuse had occurred, reporting to police was a possible but not mandatory course of action. At trial, the appellants argued that the duty of care owed to them by the Department extended to a requirement that their complaints should have been reported to the police, pursuant to the power conferred on the Director by s 148B(5) of the Child Welfare Act. The State did not contend that the statutory power relied upon (s 148B(5)) had not been engaged in the present case and conceded that it owed a common law duty to exercise its statutory powers with reasonable care, but disputed that the duty extended to a duty to report the abuse to the police, argued for a finding that the abuse had been reported, and denied that any abuse had occurred in the post-April 1983 period. The primary judge gave judgment in favour of the State and Ms Quinn. His Honour found that the Department owed each of the appellants a duty to use reasonable care in the exercise of its powers under s 148B(5) of the Child Welfare Act, that the scope of that duty included a duty to report the abuse to the police, and that the complaints had not been so reported; but was not satisfied that the step-father had, on the balance of probabilities, continued to abuse the appellants in the period after complaint was made to the Department. The claim against Ms Quinn failed on the basis that she owed no duty in relation to the s 148B(5) powers and that, even if she did, she had discharged that duty. His Honour made contingent findings as to the damages he would have awarded had he given judgment for the appellants, applying a discount of 70% on account of pre-notification abuse (for which the Department had no legal responsibility). On appeal, the appellants challenged the factual finding that the abuse did not continue after the complaint to the Department. There was no challenge to the findings in relation to Ms Quinn and she was not a party to the appeal. By way of notice of contention, the State challenged his Honour's findings as to the scope and content of the duty, namely that the duty encompassed an obligation to report the abuse to the police. The State accepted that, if the appellants succeeded in establishing liability, no challenge was made to the allowance of 30% of the total loss as their damages. Held, allowing the appeal by majority: per Ward JA (Sackville AJA agreeing at [373]): (1) The primary judge's finding that the abuse had not continued post-April 1983 was based largely, if not wholly, on the lack of a report of such abuse in the contemporaneous documentation rather than on the credibility of the respective witnesses. Hence the appellate restraint mandated in this regard by Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 does not preclude an assessment by this Court of the documentation on which his Honour relied in coming to that conclusion. Taking all the evidence together, the abuse continued in the period after April 1983: [179], [242], [253]. (2) The duty of care owed to the appellants was a duty in the exercise of the statutory powers under the Child Welfare Act to take all reasonable steps in the circumstances of the appellants' case to protect them from the risk of further physical and sexual abuse and notification of the abuse to the police was required in order to satisfy this duty: [275]-[276]. (3) The primary judge did not err in concluding that, had there been further ongoing abuse in the period post-April 1983, this would have made a material contribution to the appellants' harm: [349]. (4) Having regard to the position adopted by the parties on the appeal, there should be an award of damages in favour of each of the respective appellants as provisionally assessed by the primary judge: [181]; [357]. per the Court: (5) By Ward JA (at [322]), (Basten JA (at [96]) and Sackville AJA (at [373]) agreeing), the primary judge did not err in finding that the complaints of abuse against the step-father were not reported to the police. per Basten JA (in dissent): (6) The scope of the duty of care owed to the appellants by the State through its officers in the Department, was to take reasonable steps in exercising statutory powers to protect victims of child abuse; it did not extend to an obligation to report to police the allegations of criminality. The powers conferred by s 148B to report to police were discretionary and their primary statutory purpose was child protection; not prosecution: [79]; [81]; [93]. (7) The primary judge did not err in failing to be satisfied as to the continuation of the abuse on the evidence before him. His Honour's conclusion that the abuse did not continue after complaint to the Department were based on credibility findings with respect to DC, TB and Ms Quinn; there is nothing to suggest that those findings were erroneous on any of the bases identified in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118: [8]; [151]-[152]. (8) In the absence of any finding of ongoing abuse after the complaints were made, the officers in the Department were not in breach of their duty of care to the appellants: [159]. (9) It was arguable that s 148B(5) was not engaged at all because this case was not concerned with a "notification" of child abuse and there was no evidence as to the state of satisfaction of the Director. However, as the State did not dispute that s 148B(5) was engaged, the case cannot be determined on those grounds: [93] (obiter). Judgment INDEX BASTEN JA 1 A Introduction 2 B Scope of duty of care (1) The pleaded duty 12 (2) Findings of trial judge 23 (3) State's contention on appeal 26 (4) Principles for determining scope of duty 32 (a) statutory context – Child Welfare Act 33 (b) reliance on inter-departmental guidelines 56 (c) general principles 62 (d) operation of the Civil Liability Act 77 (5) Scope of duty – application of principles (a) did the duty encompass an obligation to report to police 79 (b) what triggered the duty? 87 (c) error in judgement at trial 88 (6) Scope of duty – conclusions 93 C Breach of duty (1) Finding of breach by State 96 (2) Finding of no negligence by Ms Quinn 102 (3) Negligence of other officers 120 (4) Did the abuse continue after complaint to YACS? (a) whether complaints of on-going abuse 133 (b) continuing abuse of TB 138 (c) continuing abuse of DC 143 (d) no basis for interference 150 D Damages 153 E Conclusions 159 WARD JA: 161 Appeal 176 Additional Background 182 Proceedings 207 Grounds 1-15 of the grounds of appeal – finding that sexual abuse did not continue after notification to Department of abuse in April 1983 217 Relevant Findings 218 Appellants' submissions 230 Respondent's submissions 238 Determination 241 Notice of Contention 255 Relevant Findings 256 Ground 1 of the notice of contention – whether duty of care required report to the CMU/police 266 Determination 270 Grounds 2 and 3 of the notice of contention – breach of duty 277 Relevant Findings 278 Respondent's submissions 284 Appellants' submissions 316 Determination 318 Grounds 16 and 17 of the grounds of appeal – damages 329 Relevant findings 331 Appellants' submissions 332 Respondent's submissions 338 Supplementary submissions as to damages 342 Non-economic loss 344 Interest on past loss of superannuation 346 Interest on past out of pocket expenses 347 Determination 349 Orders 372 SACKVILLE AJA: 373 The Civil Liability Act 375 The Post-April 1983 Abuse 378 The State's Liability for Damages 388 Additional Observations 404 1. BASTEN JA: A INTRODUCTION 1. The appellants are two women who, as young girls, suffered appalling sexual abuse at the hands of their stepfather, LX. Their entitlement, both moral and legal, to substantial compensation for the very serious psychiatric harm done to them, is undeniable. However, this was not a claim against the tortfeasor whose conduct directly caused the harm; rather, it was brought against the State for failing to prevent the criminal acts of another person. Thus the appellants lodged claims against the State of New South Wales and Carolyn Quinn, a district officer in the Department of Youth and Community Services. The allegation on which the claims were founded was that the second defendant, Ms Quinn, while taking appropriate steps to protect the appellants under the child welfare legislation, failed to report the conduct to the police. The legal question is at what point did the failure of officers in the employ of the State who were actively seeking to protect the claimants result in the State bearing the liability for any ongoing abuse? 2. There were numerous difficulties which confronted the appellants in pursuing these claims. First, they did not commence proceedings until 2008, 24 years after the conduct in question terminated. They required a lengthy extension of time, which was granted. Nevertheless, that lapse of time affected the available evidence. Records which would have been available at an earlier point in time are not available; memories have deteriorated. 3. Secondly, the abuse relied upon occurred within a period of a few months, the precise period differing in respect of each appellant. Whether any abuse took place in that period was itself contested. The relevant period commenced no earlier than the first complaint to the then Department of Youth and Community Services (YACS) and concluded less than a year later. However, the first sexual assault on TB had occurred more than eight years earlier, when she was seven and a half years old. The first assault on DC occurred some six months after the first assault on TB, when DC was four years old. The assaults included penile/vaginal intercourse and fellatio. The fact that the children suffered shocking abuse for many years and at such young ages made it difficult for them to establish that any identifiable part of the psychiatric harm suffered resulted from the abuse which occurred after the conduct of the stepfather was drawn to the attention of the welfare authorities. 4. Thirdly, there was a large question as to the scope and content of the duty of care owed to abused children by the State, or by individual officers in the YACS, once the abuse came to their attention. 5. Fourthly, even assuming that, in the circumstances of each case, there was a legal duty of care requiring that the district officer (or a superior) inform the police of the criminal conduct perpetrated by the stepfather, it was necessary to prove that the police would have taken steps which would have been effective to prevent the continuation of that conduct, in circumstances where orders made by the Children's Court failed. 6. The relevant welfare legislation in force in 1983-84, when the causes of action relied upon by the appellants were said to have arisen, was the Child Welfare Act 1939 (NSW). [1] The appeal requires consideration of the terms of the specific provisions relied on by the parties, which will be addressed below. The trial judgment focused on two factual questions, namely (a) whether the complaints of child abuse were reported to the police and (b) whether the abuse continued after the complaints were made. The appellants succeeded on (a), the trial judge being satisfied that there was no reporting to police, but failed on (b), the trial judge not being satisfied that LX continued to abuse them after the report to YACS. [2] 7. I am not persuaded that the judge was wrong in failing to be satisfied as to the continuation of the abuse, on the evidence before him. In particular, the issue depended critically on his assessment of the reliability of evidence given by the appellants. This Court has not seen the appellants give evidence and, in accordance with standard principles of restraint in such circumstances, those findings should not be overturned. 8. There are, however, also large questions as to the correct legal analysis; that adopted by the trial judge was for the most part favourable to the appellants. A notice of contention filed by the State challenged the claim that the scope of the common law duty of care included a duty to report the child abuse to the police. Senior counsel for the State argued that that duty was potentially inconsistent with the statutory functions imposed on officers in YACS and should not have been accepted. That contention should be accepted. 9. Further, whether or not the abuse continued after the complaints were made and vigorously investigated and proceedings taken in the Children's Court, there was no evidence that the district officer (or anyone else in YACS) knew of the continuing abuse; hence any duty to take further steps to protect the children was not triggered. 10. The end result is that the appeal of each appellant should be dismissed. B SCOPE OF DUTY OF CARE (1) The pleaded duty 1. Although the principal ground of appeal challenged the factual finding that the abuse did not continue after the complaints to YACS, it is logical to commence with the State's contention that the trial judge erred in finding that its duty of care extended to reporting the complaints of abuse to the police. 2. The scope of any duty of care owed to the appellants must be identified at a level of generality consistent with the need for it to arise prospectively and not retrospectively in the light of the deleterious consequences suffered by the appellants. Nevertheless, any formulation, particularly in circumstances where the conduct of the respondents derives from the exercise of, or failure to exercise, statutory powers, must relate specifically to the nature of the power and the circumstances in which it is engaged. 3. It is also necessary to be precise as to the duty owed by the respondent. While the claim against Ms Quinn failed on the basis that she did not breach any duty of care, a finding not challenged on the appeal, the basis of the proposed liability of the State must be articulated. 4. The statement of claim alleged both that the State itself owed the appellants a duty, and that it was vicariously liable for the negligence of officers in YACS. The direct duty was based upon "the relationship" between the State and each appellant, which was described as "close" and envisaged the State "considering the conduct of [LX]." [3] It alleged numerous particulars of both defendants' "awareness" of the circumstances of the complainants. [4] However, the legal basis for a direct duty owed by the State was not identified. The State is a juristic person, but, like a corporation, it will act through individuals and its "awareness" of facts will derive from that of its officers. No statute or common law principle was identified which imposed duties on the State, as an entity. While the State was sued pursuant to s 5(2) of the Crown Proceedings Act 1988 (NSW), neither that section nor its predecessors created a cause of action. [5] 5. Almost identical allegations were made with respect to Ms Quinn, which involved at least an implicit acknowledgment that it was the knowledge and actions of a public officer which lay at the heart of the liability of the State. It was otherwise inherently implausible that a junior public employee would have the same legal status and obligations as the State. [6] Indeed, the trial judge, in dismissing the claim against Ms Quinn, expressly so concluded. [7] 6. The claimants also pleaded that the State was vicariously liable for the acts and conduct of both Ms Quinn and, generically, "YACS' officers and employees." [8] That claim was soundly based in legal principle. It was no doubt the last element which led the trial judge to speak in terms of a duty of care owed by "the Department". However, a department of government is not, absent statutory provision to the contrary, a juristic person and there is a real risk in identifying a duty of care by reference to such an organisation. If the State is to be held vicariously liable for the negligence of an officer, the officer should be identified in some way (even by reference to an office) in order to prove that he or she was negligent. The duty to report to police was founded in the functions of Ms Quinn's supervisors. 7. There is a further question raised as to the pleading of the particular duty in the present case, which was in broad terms: "(a) to take all reasonable steps to ensure the welfare of the plaintiff and the plaintiff's sister; and (b) to take all reasonable steps to protect the plaintiff and the plaintiff's sister from any further physical, emotional or sexual abuse by [LX]." 1. There is a difficulty with the formulation of a duty in such broad terms. As a matter of political theory, it may be accepted that there are reciprocal obligations between the State and its citizens. The obligations of the State include a duty to protect citizens from harm. The establishment and maintenance of a police force and officers responsible for enforcing child welfare legislation provide core elements of the response to that duty. The failure to provide minimal acceptable protection to classes of citizens who fall within specified categories may attract the surrogate protections provided under international law, such as the 1951 Convention Relating to the Status of Refugees. However, for domestic legal purposes, the obligation of the State requires more precise definition. In relation to children, the State does not bear the primary obligation to care for and protect them. Rather, the primary obligation lies with the parents or broader family. It is only where that protection fails that the statutory powers of the State are engaged. 2. The defence pleaded in response: "a. The [State] says that the scope of any duty of care owed by it to the plaintiff is confined by that which arises from the [Child Welfare Act], in particular s 148B of the [Child Welfare Act] read with s 158 [Child Welfare Act]; and b. The [State and Ms Quinn] say that in 1983 and 1984 they did not owe a general duty of care to the plaintiff or a duty of the scope or content apparently contended by the plaintiff …." 1. The terms of s 148B of the Child Welfare Act will be addressed, in its statutory context below; the key provision, subs (5), read as follows: (5) Where the Director has been notified under subsection (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. 1. Section 158(1) was in the terms set out at [50] below, where its effect is discussed. Suffice it to say that it is primarily directed to intentional torts. (2) Findings of trial judge 1. The claimants' case at trial was that the duty of care owed to them by officers in YACS extended to a requirement that their complaints about LX should have been reported to police, pursuant to the power conferred on the Director by s 148B(5). The trial judge accepted that submission, holding: [9] "The Department owed each of TB and DC a duty actionable under the law of negligence to use reasonable care in the exercise of its powers conferred by s 148B(5) [of the Child Welfare Act]." 1. The trial judge correctly distinguished the position of Ms Quinn, stating: [10] "As the evidence in the case makes clear, the District Officer was a relatively junior and young officer accountable in the performance of her duties to the senior officers to whom she reported. It may have fallen to her to implement appropriate action under s 148B(5)(b), but she was not legally responsible for the exercise of the statutory power, or discretion. It is not appropriate to impute the duty owed by the Department, concurrently to the District Officer." 1. At no stage did the trial judge find that the State owed a direct duty of care to the appellants. The absence of such a finding was not challenged on the appeal and, as noted above, the existence of such a duty was at least legally implausible. Further, Ms Quinn was not joined as a party to the appeal and there was no challenge to the finding that she did not owe a duty of care. It follows that the appeal must be assessed on the basis that the State was vicariously liable for negligence of other officers in YACS. (3) State's contention on appeal 1. On appeal the State filed a notice of contention in the following terms: "In the context of an initial finding that the respondent had a legal duty to take reasonable care in the exercise of its statutory powers, his Honour … erred in finding that the common law imposed a duty on the respondent to report a matter of child abuse to the NSW Police Child Mistreatment Unit (CMU)." 1. The appellants understood the State's position as follows: [11] "There is no challenge to his Honour's finding that the Respondent owed each Appellant a common law duty to take reasonable care in the exercise of its statutory powers. The challenge is to the content of the duty." 1. That the State conceded that it owed a duty of care to children in respect of whom protection was sought, to exercise its statutory powers with reasonable care, is unsurprising. The distinction between that concession and the challenge to the alleged scope of the duty is important and reflected in the authorities. For example, in Roads and Traffic Authority of New South Wales v Dederer [12] there was no dispute that the RTA owed a duty of care to all members of the public in the exercise of its bridge building functions. [13] The critical question was, as often in relation to claims against statutory authorities, not whether a duty was owed, but rather the scope of the duty. As Gummow J explained in Dederer, duties of care are not owed in the abstract, but are "obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question." [14] 2. Similar reasoning may be found in many judgments in many cases. Kirby J stated in Romeo v Conservation Commission of the Northern Territory: [15] "[122] It is one thing to hold that a person owes a duty of care of some kind to another. But the critical question is commonly the measure or scope of that duty. The failure to distinguish these concepts can only lead to confusion. [123] The ordinary formulation of the common law is that a body such as the Commission must take reasonable care to avoid foreseeable risks of injury to persons entering an area such as the reserve, including the cliffs, as of common right. [16] However, that expression of the duty must be elaborated if it is to be of any practical guidance." 1. Hayne J, in Romeo, also spoke in emphatic terms: [17] "It was not (and could not be) seriously suggested that the respondent in this case owed no duty of care to members of the public that might go to areas which it manages. The real subject for debate was what that duty required of it, for it is only when the content or scope of the duty is identified that questions of breach and causation of damage can be considered." 1. It is the scope of duty which was in issue in the present case. (4) Principles for determining scope of duty 1. In these circumstances, it is necessary to consider the nature and scope of the "common law duty" conceded to be owed by officers of the State attaching to the exercise of specific "statutory powers", for breach of which it would bear vicarious liability. The starting point for this exercise must be the identification of the statutory power relied upon by the appellants. There are reasons for doubting the assumption that s 148B(5), was engaged, or that it envisaged reporting to police for the purposes of prosecution, rather than the carrying out of functions under the Child Welfare Act itself. As neither of these points of statutory construction was relied on by the State, the case cannot be determined on these grounds. However, because the scope of the common law duty depends on the purpose of the statutory power it is necessary to have regard to the operation of the Child Welfare Act. (a) statutory context - Child Welfare Act 1. The Child Welfare Act reflected a philosophy which has long since been abandoned. Part XIV was headed "Committal of Neglected or Uncontrollable Children or Young Persons [18] or of Juvenile Offenders." (Parental neglect and offences by a child were rolled up in one Part.) Pursuant to s 76, an officer authorised by the Minister, or a police constable, was empowered to apprehend a child "who he has reason to believe is a neglected or uncontrollable child". The term "uncontrollable" meant a child "who is not being or cannot be controlled by his parent or by any person having his care." [19] The definition of "Neglected child", contained in s 72, ran to 16 paragraphs. It included the following: (g) whose parents are drunkards, or, if one be dead, insane, unknown, undergoing imprisonment, or not exercising proper care of the child …, whose other parent is a drunkard; or … (j) who in the opinion of the court is under incompetent or improper guardianship; or … (l) whose parents are unfit to retain the child … in their care…; or … (n) who is falling into bad associations or is exposed to moral danger …. 1. There was power for a justice to issue a warrant for the apprehension of a child or young person where an authorised officer or constable of police, "having made due inquiry,… believes any child … to be a neglected or uncontrollable child". [20] A child apprehended pursuant to such a warrant was to be taken to a shelter and, as soon as practicable thereafter, brought before a court. [21] The court was given power in the following terms: 82. (1) If a court finds that a child … is a neglected or uncontrollable child … it may‑ (a) admonish and discharge the child …; or (b) release the child … on probation upon such terms and conditions as may be prescribed or as the court may, in any special case, think fit, and for such period of time … as the court may think fit; or (c) commit the child … to the care of some person who is willing to undertake such care upon such terms and conditions as may be prescribed or as the court may, in any special case, think fit, and for such period of time … as the court may think fit; or (d) commit the child … to the care of the Minister to be dealt with as a ward admitted to State control; or (e) commit the child … to an institution, either generally or for some specified term … not exceeding three years. (2) If a court finds that a child is a neglected child it may release the child‑ (a) upon such terms and conditions as the court may think fit and as are willingly undertaken to be observed by the child's parents, one of the child's parents or another person approved by the court; and (b) for such period of time … as the court may think fit. 1. The claimants did not discuss these powers, but they were relevant to the steps taken by Ms Quinn involving applications to the Children's Court. Rather, the claimants alleged a failure to exercise a power arising under s 148B(5), which appeared in Pt XVII, entitled "Procedure, Penalties and General Provisions." The first section in that Part (s 125) set out a presumption that the Minister or any officer had authority to do any act or take any proceedings. There were coercive provisions, for example, for medical examinations to determine whether the child or young person was suffering from venereal disease. [22] There were also provisions allowing for the removal of a child to a place of safety and his or her detention there, pending investigation. 135. Any officer authorised by the Minister in that behalf or any constable of police may take any child …, in respect of whom there is reason to believe that an offence has been committed, to a shelter, and such child …, and any child … who seeks refuge in a shelter, may be there detained until he can be brought before a court. 136. (1) Where it appears to a court or any justice that an offence has been committed in the case of any child … brought before such a court or justice, and that the health, welfare or safety of the child … is likely to be endangered unless an order is made under this section, the court or justice may, without prejudice to any other power under this Act, make such order as circumstances require for the care of the child … until a reasonable time has elapsed for the bringing and disposing of any charge against the person who appears to have committed the offence. (2) An order under this section may be enforced notwithstanding that any person claims the custody of the child …. 1. There was further provision for a magistrate or justice, on information on oath establishing a reasonable cause to suspect that a child was neglected, "or has been or is being ill-treated or neglected in a manner likely to cause the child …unnecessary suffering, or to be injurious to his health and welfare" to issue a warrant authorising search for and detention of the child by a police constable or officer. If brought before the court, there was power to "commit the child … to the care of some person named by the court or make such other order as to the care of the child … as the court may think fit." [23] 2. Section 148B was placed between provisions making it an offence to neglect to provide for children (s 148(1)), ill-treating any ward (s 148(2)), tattooing a child (s 148A) and a provision concerning assault or ill-treatment of a child (or exposing any child to assault or ill-treatment) which may result in bodily suffering or permanent or serious injury to the health of the child (s 149(1)). 3. By contrast, s 148B was procedural and dealt with "notification of certain injuries to children", [24] while s 148C conferred power on the Director or a constable of police to require a child believed to have been assaulted or ill-treated to be medically examined. The critical provisions in s 148B were as follows: 148B. (1) In this section— "court", except in subsection (7)(d), means any court; "prescribed person" means— (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. (2) Any person who forms the belief upon reasonable grounds that a child— (a) has been assaulted; or (b) is a neglected child within the meaning of Part XIV, may— (c) notify the Director of his belief and the grounds therefor either orally or in writing; or (d) cause the Director to be so notified. (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 subsection (3) shall be guilty of an offence against this Act. (5) Where the Director has been notified under subsection (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. 1. The reference in s 148B(5) to "the Director", was a reference to the permanent head of the Department of Youth and Community Services. [25] The remaining subsections (being subs (6), (7) and (8)) provided protection for a person notifying the Director and conferred immunity from liability in defamation and other torts, immunity from professional discipline and a right not to be required to produce the notification or evidence of its contents. 2. One possible question was whether s 148B was engaged at all on the facts of this case. The trial judge held that it was because the relevant "notification" was either a telephone call from TB immediately prior to 20 April 1983, or statements made to the district officer during an interview with TB at Blacktown High School on 20 April 1983. [26] There are two difficulties with that finding, one factual and one legal; the difficulties are inter-related. The factual difficulty is that Ms Quinn was not the Director. Nor was there a case run that, in referring to "the Director" the section should be read as referring to "any officer of the department". Nor was it suggested that the Director had delegated his or her powers (or that there was a power of delegation), nor that there was some implied authority on the part of Ms Quinn to act for the Director, of the kind implied in Carltona Ltd v Commissioner of Works. [27] There are in any event reasons, to be noted shortly, for rejecting any such express or implied expansion of the role of the Director, a proposition accepted by the trial judge and not challenged on the appeal. 3. The other problem faced by this construction of the section is that it did not envisage, nor is it directed to, a complaint by an abused child. Subsection (2) identified a person who has formed a belief based on reasonable grounds that a child (clearly not the person) has been assaulted. The purpose of the section was to allow members of the community to notify a senior government officer of cases of suspected child abuse, with protection from civil liability where the "notification" was based upon reasonable grounds. Subsection (3) went further: it imposed an obligation on medical practitioners and certain other professionals to report a suspicion of child abuse, again based on reasonable grounds. 4. Once the statutory context is understood, the use of mandatory language in subs (5) with respect to the Director, is readily explained. Where a notification had been made under one of two earlier provisions in the same section, the Director was, in effect, required to take it seriously and cause an investigation to be undertaken. There was no suggestion in the statutory language that all complaints of child abuse were to be treated in this way, no matter what the source, nor that the protections with respect to notifications under the section would apply to complaints generally. The concept of "notification" was not to be equated with any "complaint", nor the unqualified formation of a belief by an authorised officer or a police constable. 5. Further, subs (5) did not expressly envisage that the Director would cause an information to be laid before a court. The powers of the Director on satisfaction that there may have been child abuse would undoubtedly have extended to the provision of the relevant material to an authorised officer or to a police constable, who could then take steps to have the child brought before a magistrate in accordance with the provisions relating to neglected children. 6. Finally, the scope of the powers conferred on the Director were not expressly constrained in subs (5)(b), although the action considered appropriate would ordinarily have referred to action under the Child Welfare Act. The express reference to reporting to a police constable did not involve any limitation on the use which might be made of that information by the police constable. In other words, whether the constable could only exercise powers conferred under the Child Welfare Act (referred to above) or could institute criminal proceedings against a suspected offender was not addressed. However, there are reasons for thinking that reporting to a constable of police was not intended as a mechanism for instituting criminal proceedings. 7. There are several reasons for the last conclusion. First, it is clear that police constables were given specific powers under the Child Welfare Act and the referral of matters to a police constable under a section of the Child Welfare Act would ordinarily be understood as a basis upon which that constable might exercise powers conferred under that Act. Secondly, if the purpose of the power conferred on the Director were to allow the commencement of criminal proceedings, it is curious that the Director (as the head of YACS) did not report to an officer of similar standing in the hierarchy of the Police Force. Thirdly, the protections for the notification in subs (6), (7) and (8) did not expressly address the possibility of the notification becoming relevant in criminal proceedings. 8. The primary purpose of an arrest is not to protect the victim (except, where the offence is being committed or may be repeated). The general principle has always been that the person arrested is to be taken as soon as practicable before a magistrate to be dealt with according to law; that is, to answer a charge which may be laid against the person, usually for the offence for which the arrest was undertaken. That was true, both under the common law, and under the Crimes Act 1900 (NSW), s 352, as in force in 1983. [28] As explained by Jordan CJ in Bales v Parmeter: [29] "But suspicion that a person has committed a crime cannot justify an arrest except for a purpose which that suspicion justifies; and arrest and imprisonment cannot be justified merely for the purpose of asking questions. … But the statute, like the common law, authorises him only to take the person so arrested before a justice to be dealt with according to law, and to do so without unreasonable delay and by the most reasonably direct route …." 1. That is not to suggest that criminal proceedings would be instituted without regard to the interests of the complainant. The psychological fragility of a complainant would almost certainly have been taken into account in determining whether to proceed with a prosecution. The point is, rather, that the purpose of an arrest is to maintain a criminal prosecution and not, primarily, to protect the victim from further assaults. 2. None of this is to say that the Director, having been satisfied by an investigation that child abuse had occurred, would have been precluded from taking steps to have a suspected offender prosecuted. On the other hand, there is no basis for construing s 148B(5) as imposing any duty to take that step: it is a discretionary power. If s 148B(5) were not engaged in the present case, the basis of the common law duty relied on in the proceedings should have fallen away. [30] Nevertheless, no such argument was adopted by the State; on the contrary it embraced the engagement of s 148B(5), and guidelines formulated under it, in support of an inference that the offending conduct was in fact referred to police. 3. Regardless of the foregoing doubts about the application of s 148B, its purpose is, in keeping with its statutory context, to enhance the protection of young persons and children from child abuse. 4. The trial judge also made reference to the provision in the Child Welfare Act which was protective of officers: 158(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. 1. Most powers to which the statutory immunity applies will involve coercion, or otherwise entrench upon general law liberties or rights. [31] It will provide a level of protection in respect of the exercise of statutory functions, including those which may (absent statutory authority) involve intentional torts, or breaches of duty, neither of which is relevant in this case. In any event, s 158 provides a defence; it does not create liability. Because it will not provide a defence to a claim in negligence it can say nothing about whether any such cause of action may arise in carrying out a particular provision of the Act. At best, s 158 could be seen as recognising the existence of a duty of care, which was not in dispute. 2. As with the current legislation, it should be accepted that the Child Welfare Act was required to be administered in accordance with the principle that any action or decision concerning a particular child or young person must treat as paramount the safety, welfare and well-being of the child or young person. [32] The administration of child welfare legislation often involves difficult questions as to where and to what extent protection within the family has failed and as to the best mechanisms for rectifying the situation. These matters require the exercise of judgment and, where persons are to be removed from the family home, a court order. 3. Despite the breadth of the issues engaged, the only aspect of the duty of care relied on was the exercise of the power to report to the police what were described as "notifications". Following the complaints to the district officer, there was a factual assessment to be made (were the complaints reliable?) and a strategic assessment as to the appropriate course to be taken. It is clear that the factual assessment was made by Ms Quinn and was favourable to the complainants: she accepted the allegations of child abuse, as did other officers who dealt with them. A strategic assessment, viewed in the abstract, would have included at least the following possibilities: 1. removing the girls from their home and placing them in institutions or foster care; 2. allowing the girls to remain in their home on condition that the stepfather moved out and had no contact with them; or 3. physically preventing the stepfather from having contact with either of the girls. 1. None of these steps could have been taken by the district officer. With respect to (a) and (b), she could have had the children brought before a Children's Court and sought appropriate orders, as was done. There is no suggestion that she failed in her duty of care in taking those steps. If the court had made an order removing the children from the family home, physically removing the stepfather from their presence would, at least in the first instance, have been unnecessary. (Again, that was what in fact initially happened.) However, to remove the stepfather physically required a police arrest and the institution of criminal proceedings. 2. It may be accepted that the duty of care which arose in the circumstances revealed in April 1983 included a duty to consider the various courses of conduct available to the officers in YACS under the Child Welfare Act. That, however, would fall short of the scope of the duty relied on by the claimants, to which it will be necessary to return shortly. (b) reliance on inter-departmental guidelines 1. The claimants, both at trial and in this Court, sought to obtain assistance in formulating the duty of care by reliance on a document entitled "Guidelines for Officers of the Department of Youth and Community Services, the Police Department and the Health Commission in respect of matters relating to child abuse". The trial judge inferred that the Guidelines had been adopted no later than 26 February 1982. [33] The judge considered the Guidelines in the course of determining whether the abuse was in fact reported to police. The Guidelines, quite properly, played no part in his consideration of whether there was a duty of care which extended to an obligation to report the sexual abuse to the police. [34] However, because the appellants in this Court placed some reliance on the Guidelines as forming the basis for submissions as to the scope of the duty of care, it is necessary to indicate why they provide no support for that conclusion. 2. Emphasis was placed upon the first paragraph in Part 1 of the Guidelines, dealing with "receipt of notifications of suspected child abuse", which read as follows: "All notifications of suspected child abuse are to be reported to any District Office or Child Protection Unit of the Department of Youth and Community Services. The Officer-in-Charge of such office is to ensure that Montrose Child Protection and Family Crisis Service is immediately notified of details of the reported case." 1. The Montrose Service was part of YACS. It maintained a register of child abuse complaints, until the children concerned came of age. Part 3 of the Guidelines was headed "Discretion". It contained two parts, the first dealing with YACS and the second with the Police Department. With respect to YACS, the Guidelines addressed four activities of identified officers in YACS, including (1) the issue of medical examination orders under s 148C of the Child Welfare Act, (2) a decision to lay a complaint under the Child Welfare Act, (3) a decision to involve police in child abuse cases and (4) a decision to "file down" registered child abuse cases. 2. The trial judge concluded, having regard to the elements identified in (3), that the cases of the complainants fell within the category of cases which would be "appropriate" for involvement of the police. However, importantly for present purposes, that section of the Guidelines contained the following statement: "Police involvement is not synonymous with court action which should be the result of a joint decision making process between responsible officers of [YACS], police personnel and health personnel if involved." 1. Consistently with that statement, par 3.2.2, headed "Decision to lay charges under the Crimes Act and/or complaint under the Child Welfare Act", included the following: "Officers of the Police Child Mistreatment Unit may make decisions to lay charges under the Crimes Act and/or complaints under the Child Welfare Act when consensus has been reached after consultation with the SEO (Montrose) or a Senior District Officer or a Resident District Officer of [YACS]. Decisions to take such action should be made in similar circumstances to those listed 3.1.3 above. Where consensus is not reached the matter shall be referred to the Assistant Commissioner (Crime) and to the appropriate Regional Director of [YACS]." 1. This last paragraph patently recognised that there may be conflicting views as to the appropriateness of court action, involving criminal proceedings against the perpetrator of abuse. The potential for conflict in such cases was inconsistent with the proposition that a child welfare authority should be placed under a common law duty which included reporting cases to the police for the purpose of prosecution. This was not an abstract issue: there was unequivocal evidence that this problem affected the thinking of Ms Quinn, considered below. (c) general principles 1. In assessing whether the common law would impose a duty in these circumstances, it is necessary to have regard to two basic principles. First, absent a special relationship involving a duty to control the actions of another, the common law does not generally impose a duty of care on one person to prevent a second person causing harm to a third person. [35] Secondly, the common law will not impose a duty which is "inconsistent with, or have a tendency to discourage, the due performance by the [relevant authority] of its statutory duties". [36] Nor will it require that a discretionary power conferred by statute be exercised in a particular way. In the case of a statutory power the duty will usually be to consider its exercise, if the preconditions are satisfied. 2. The first principle was addressed in a case involving the management of licensed premises, namely Adeels Palace Pty Ltd v Moubarak. [37] The question was whether the proprietor of licensed premises owed a customer a duty to take reasonable care to prevent injury resulting from the violent conduct of others on the premises. In rejecting a submission that Modbury Triangle precluded such a duty of care, the High Court noted that "the particular duty said to have rested on the occupier of the premises (who was the operator of the business that was conducted on the premises) is a duty to take reasonable care to prevent or hinder the occurrence of events which, under the Liquor Act, the licensee was bound to prevent occurring – violent, quarrelsome or disorderly conduct." [38] The existence of such a duty, in relation to event which occurred on New Year's Eve, was expressed in the following terms: [39] "In the circumstances reasonably to be contemplated before the restaurant opened for business on 31 December 2002 as likely to prevail on that night, Adeels Palace owed each plaintiff a duty to take reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other persons. The duty is consistent with the duty imposed by statute upon the licensee and which was a duty enforceable by criminal processes. No question arises of translating a statutory power given to a statutory body into the common law 'ought' [40] . The duty is not absolute; it is a duty to take reasonable care. It is not a duty incapable of performance. It is a duty the performance of which is supported by the provision of statutory power to prevent entry to premises and to remove persons from the premises, if needs be by using reasonable force." 1. The point as to consistency with the statutory power referred to the second principle noted above. In Pyrenees Shire Council v Day, Gummow J said: [41] "Much of the argument in this Court was directed to the particular position of the Shire of Ripon as a public body with statutory powers. Those parties which asserted liability of the Shire to them in tort sought to translate the public law 'may' into the common law 'ought'." 1. The State's submissions directly raised the question of potentially conflicting obligations, as a basis for not imposing a duty in the terms proposed. A similar issue arose in Stuart v Kirkland-Veenstra, [42] in which the wife of a man who had committed suicide sued police officers and the State of Victoria for damages for breach of duty in failing to exercise powers available under the Mental Health Act 1986 (Vic) to apprehend a person who appeared to be mentally ill, where the officer had reasonable grounds for believing that the person was likely to attempt suicide. The High Court held that the claim failed because the power was not engaged, it not having been established that the police officers had formed the relevant belief. [43] 2. Unlike the present case, the basis of the claim in Stuart was that the police ought, in the exercise of their duty of care both to the deceased and his wife, to have taken into custody the deceased, to prevent him committing suicide. That concept differed from that engaged in the present case which involved an assailant and his victims. Nevertheless, the following observations of Gummow, Hayne and Heydon JJ are apposite: [44] "First, the duty must be one that would require exercise of the powers given by equivalent provisions in other jurisdictions. Secondly, and more importantly, the duty of care alleged by the plaintiff could not be confined to a duty to take reasonable care to protect a person from self-harm by exercising statutory powers under applicable mental health legislation. The duty alleged could not be confined to cases of self-harm and could not be confined to cases in which powers under mental health legislation may be engaged. Rather, the duty alleged in this case would necessarily be a particular example of a more general duty of care owed by those who have statutory power to take action in exercise of that power, whenever two conditions are satisfied: it is reasonable to do so and acting will be likely to protect another from physical harm. And although the duty alleged in this case is said to have been owed to Mr Veenstra to take reasonable care to protect him from harm at his own hand, there is no basis upon which the relevant duty of care could be confined to cases of self-harm. If owed, the duty must extend to preventing harm to at least some others. For the reasons given earlier, no such general duty should be found to have been owed by the police officers." 1. The reasoning in Stuart for not imposing a common law duty of care placed weight upon the value of personal autonomy as a factor of predominate importance. [45] However, more broadly, the joint reasons affirmed the approach articulated in Graham Barclay Oysters Pty Ltd v Ryan: [46] "[146] The existence or otherwise of a common law duty of care allegedly owed by a statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime. The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence. … [149] An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial. It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. In particular categories of cases, some features will be of increased significance. For example, in cases of negligent misstatement, such as Tepko Pty Ltd v Water Board, reasonable reliance by the plaintiff on the defendant authority ordinarily will be a significant factor in ascertaining any relevant duty of care." 1. It is also convenient in this context to note the principles adopted by the High Court in Sullivan v Moody, [47] a case involving a claim for damages brought by a father who had been mistakenly accused of sexual abuse of his child, alleging that the medical practitioner and social worker, who had formed the opinions that the child had been abused, acted negligently. That case involved the exercise of a power of notification (indeed an obligation to notify) pursuant to the Community Welfare Act 1972 (SA), being a provision analogous to s 148B of the Child Welfare Act. The facts, in one sense, were the reverse of the present case. That was significant because the Court, in rejecting the existence of a duty of care, relied upon the fact that a duty of care owed to an alleged abuser "would give rise to inconsistent obligations", namely obligations inconsistent with the duty of the professional to the child in whose interest the professional is supposed to act. [48] The Court further noted that "the interests of the children, and those suspected of causing their harm, are diverse, and irreconcilable." [49] 2. Nevertheless, in the course of the reasons, the Court referred, with apparent approval, to two passages from the opinion of Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council. [50] The relevant passages had been relied upon by Matheson J in the South Australian Supreme Court. [51] The first has been set out above at [62]. A further passage was in the following terms: [52] "... the task of the local authority and its servants in dealing with children at risk is extraordinarily delicate. Legislation requires the local authority to have regard not only to the physical wellbeing of the child but also to the advantages of not disrupting the child's family environment.... [I]f a liability in damages were to be imposed, it might well be that local authorities would adopt a more cautious and defensive approach to their duties. ... If the authority is to be made liable in damages for a negligent decision ... there would be a substantial temptation to postpone making such a decision until further inquiries have been made in the hope of getting more concrete facts. Not only would the child in fact being abused be prejudiced by such delay: the increased workload inherent in making such investigations would reduce the time available to deal with other cases and other children." 1. There have been a number of recent cases in the UK Supreme Court dealing with similar issues. Michael v The Chief Constable of South Wales Police [53] involved a claim by the parents and young children of a woman who was murdered by her former partner. The claim against police asserted that they had failed to respond to an emergency call until more than an hour after the call was made, whereas, it was submitted, a prompt response would have prevented the killing. The reasoning is relevant because, as in the present case, the claim was based, not on negligent action, but on a failure to act. 2. After a comprehensive review of cases not only from the UK but from other countries, including Australia, Lord Toulson, with whom Lords Neuberger, Mance, Reed and Hodge agreed, rejected the proposition that the police owed a duty of care to the victim, on receiving her emergency call. The principles were stated in the following terms: "[97] English law does not as a general rule impose liability on a defendant (D) for injury or damage to the person or property of a claimant (C) caused by the conduct of a third party (T): Smith v Littlewoods Organisation Ltd [1987] AC 241, 270 (a Scottish appeal in which a large number of English and Scottish cases were reviewed). The fundamental reason, as Lord Goff explained, is that the common law does not generally impose liability for pure omissions. It is one thing to require a person who embarks on action which may harm others to exercise care. It is another matter to hold a person liable in damages for failing to prevent harm caused by someone else. [98] The rule is not absolute. Apart from statutory exceptions, there are two well recognised types of situation in which the common law may impose liability for a careless omission. [99] The first is where D was in a position of control over T and should have foreseen the likelihood of T causing damage to somebody in close proximity if D failed to take reasonable care in the exercise of that control. Dorset Yacht is the classic example, and in that case Lord Diplock set close limits to the scope of the liability. As Tipping J explained in Couch v Attorney-General, [54] this type of case requires careful analysis of two special relationships, the relationship between D and T and the relationship between D and C. I would not wish to comment on Tipping J's formulation of the criteria for establishing the necessary special relationship between D and C without further argument. It is unnecessary to do so in this case, since Ms Michael's murderer was not under the control of the police, and therefore there is no question of liability under this exception. [100] The second general exception applies where D assumes a positive responsibility to safeguard C under the Hedley Byrne principle, as explained by Lord Goff in Spring v Guardian Assurance Plc. [55] It is not a new principle. It embraces the relationships in which a duty to take positive action typically arises: contract, fiduciary relationships, employer and employee, school and pupil, health professional and patient. The list is not exhaustive. … There has sometimes been a tendency for courts to use the expression 'assumption of responsibility' when in truth the responsibility has been imposed by the court rather than assumed by D. It should not be expanded artificially." 1. Lord Toulson also considered the areas where a duty of care has been imposed. "[112] In some areas, such as health care and education, public authorities provide services which involve relationships with individual members of the public giving rise to a recognised duty of care no different from that which would be owed by any other entity providing the same service. A hospital and its medical staff owe the same duty to a patient whether they are operating within the national health service or the private sector (Roe v Minister of Health [1954] 2 QB 66). A school and its teaching staff owe the same duty to a pupil whether it is a state maintained school or a private school (Woodland v Swimming Teachers Association [2013] UKSC 66; [2014] AC 537). Educational psychology is a professional service linked to education. An organisation which provides an educational psychology service, and its educational staff, owe the same duty to a pupil whether they are operating in the public or the private sector (X (Minors) v Bedfordshire County Council [1995] AC 633). [113] Besides the provision of such services, which are not peculiarly governmental in their nature, it is a feature of our system of government that many areas of life are subject to forms of state controlled licensing, regulation, inspection, intervention and assistance aimed at protecting the general public from physical or economic harm caused by the activities of other members of society (or sometimes from natural disasters). Licensing of firearms, regulation of financial services, inspections of restaurants, factories and children's nurseries, and enforcement of building regulations are random examples. To compile a comprehensive list would be virtually impossible, because the systems designed to protect the public from harm of one kind or another are so extensive. [114] It does not follow from the setting up of a protective system from public resources that if it fails to achieve its purpose, through organisational defects or fault on the part of an individual, the public at large should bear the additional burden of compensating a victim for harm caused by the actions of a third party for whose behaviour the state is not responsible. To impose such a burden would be contrary to the ordinary principles of the common law." 1. Although he did not deal expressly with child welfare cases, Lord Toulson did note that "[c]laims against other emergency services have been treated in a similar way to claims against the police (except in the case of the ambulance service, to which I refer below)." [56] The primary examples given involved calls to the fire brigade and a case involving the Coastguard. 2. The countervailing position (adopted in Michael by Lord Kerr and Lady Hale) involved a variation on the principle expressed by Lord Bingham in dissent in Van Colle v Chief Constable of the Hertfordshire Police; Smith v Chief Constable of Sussex Police. [57] Van Colle involved a claim under the Human Rights Act 1998 (UK) and was not of direct relevance to a common law claim. Smith involved the strike out of a common law claim. The claimant was the victim of a violent attack by a former (male) partner. He had received, and reported to police, "a stream of violent, abusive and threatening messages, including death threats." [58] A week later he was savagely attacked, the police having taken no steps in the meantime to address the reported threats which left the victim believing that he was in danger of his life. Lord Bingham expressed what he described as "the liability principle" in the following terms: [59] "If a member of the public (A) furnishes a police officer (B) with apparently credible evidence that a third party whose identity and whereabouts are known presents a specific and imminent threat to his life or physical safety, B owes A a duty to take reasonable steps to assess such threat and, if appropriate, take reasonable steps to prevent it being executed." 3. In Michael, Lord Kerr added an extra ingredient which he described as "proximity of relationship" and which was identified as "a closeness of association between the claimant [that is the person in fear] and the defendant [the police officer], which can be created by information communicated to the defendant but need not necessarily come into existence in that way". [60] At least in circumstances where there has been a report of a threat, it is not clear that the additional criterion adds much to the succinct statement of principle by Lord Bingham. Although the majority decision in Michael thought that this formulation produced anomalous results, they also supported the view (conformably with the Australian approach) that the common law should develop incrementally and not in giant steps. [61] 4. Whether the approach favoured by Lord Bingham and the minority in Michael would be adopted in Australia, having regard to particular statutory schemes, is an open question: it has not yet been adopted. (d) operation of the Civil Liability Act 1. On the basis that the claimants were relying upon a statutory power arising under the Child Welfare Act, the State pleaded that it was a "special statutory power" within the meaning of s 43A of the Civil Liability Act 2002 (NSW) and that it was therefore necessary for them to establish that the act or omission relied upon was "in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power." [62] 2. The failure or omission relied upon as a breach of duty was the failure to report the conduct of LX to the police. Accepting that the statutory power in s 148B(5) had been available, the trial judge held that it was a "special statutory power" and that the claims were to be addressed by reference to the high standard imposed by s 43A. Neither party suggested that that approach was erroneous. However, the section did not preclude the existence of a duty, nor affect its scope, but should be understood as identifying the standard of care. It will therefore operate in considering whether, assuming that a relevant obligation is established, the conduct of the officers of the State failed to reach the requisite standard of care, thereby breaching the duty. (5) Scope of duty - application of principles (a) Did the duty encompass an obligation to report to police? 1. In considering the formulation of a common law duty, it is necessary to go beyond the proposition that demands for justice strongly favoured the prosecution of LX. No doubt a system for notification of cases of child abuse could increase the likelihood of such prosecutions. However, it is clear that that was not the primary function of s 148B; its purpose was child protection. That follows from its location in the Child Welfare Act, and the identification of the Director of YACS as the recipient of notifications. Even if it be assumed that the powers were also conferred on other officers in YACS, the primary statutory purpose remained. 2. As senior counsel for the State explained in the course of her submissions on the appeal: [63] "It becomes the question then… let's assume for the purpose of the argument that the decision maker is obliged to at least consider, whether [he] or she will involve the police. At the time, in this case, one has two vulnerable complainants, an utterly unsupportive family environment, at least one of the complainants is extremely psychologically precarious, wrist slashing and the like. The question becomes then, if it is assumed that the police, upon notification would then automatically step in and charge and require witness statements and require those complainants to go into a criminal procedure. If the decision maker said, well I'm not going to do that, because I'm exposing those plaintiffs at this time to that procedure and we are already in the Cobham Children's Court and have got orders in place that the Court believes [will] protect them at the time that we're talking about. His Honour's finding, of course, is that that decision to engage the police had to be taken by 28 April very early in the scheme of things. … It may well be to look from the other side of things, that the very last thing in the world one would do in protecting these two complainants would be to notify the police at the time, as at 28 April." 1. The scope of any duty of care, viewed in the statutory context, was to take reasonable steps in exercising statutory powers to protect victims of child abuse. Abuse may come in many different forms. In the present case, it is proper to identify the scope of the duty by reference to the risk of continued sexual abuse (and occasional physical violence) from the stepfather, directed at the claimants. 2. The first question for departmental officers faced with such complaints of child abuse must be to determine their own level of satisfaction that the abuse complained of has occurred and, depending on the nature of the complaint, may continue to occur if no action is taken. The next step is to identify forms of amelioration which may be taken and to assess their likelihood of success. In the present case, the predatory behaviour of LX was, as Ms Quinn learnt on 28 April 1983, condoned by the girls' mother. No doubt that raised a possibility, even a likelihood, that the predatory behaviour might continue if either LX or the girls were not removed from the household. The immediate decision was to seek orders from the Children's Court which would have the effect of barring LX from his own home. On one view, that was a reasonably drastic step. On the other hand, if the alternative were to remove the girls from the home, that might also be seen as a drastic step. If the latter step were taken, it would then be necessary to determine where they would live and in what circumstances they would continue to have contact their mother and stepfather. Decisions were made, about which no complaint is now made. They were appropriate exercises of the statutory powers available to the welfare officers involved in the case. 3. Needless to say, the passage from X (Minors) set out above [64] did not purport to be a comprehensive description of the conflicting factors which might be relevant to decisions made by a welfare officer. Another factor is to be found in the evidence of DC, as to a conversation with Ms Quinn on the day they visited Blacktown Police Station, apparently for a purpose unrelated to her complaints about her stepfather. In a statement dated 22 April 2014, DC stated: [65] "I remember that I asked Carolyn Quinn on that day why Len could not be charged in relation to his sexual and physical assaults of [TB] and myself. Carolyn Quinn said words to the effect 'It can't be done because [TB] is not mentally capable of coping with the stress of it'." 1. In her first account of this event, given on 1 June 2002, prior to the prosecution of LX, DC said that the conversation took place with police at Blacktown, [66] a proposition she denied in cross-examination in her civil claim. [67] The trial judge rejected her evidence that she had attended at Blacktown Police Station as "unreliable" [68] and as a "reconstruction". [69] Whether he rejected the account of the conversation with Ms Quinn is less clear; it was irrelevant to the question whether the complaints were reported to the police. But the circumstances of the conversation were less important than the plausibility of the explanation (whether proffered by the district officer or not). 2. The proposition that Ms Quinn (or a supervisor) should have immediately reported LX to the police, with the intention that he be arrested and thus removed from the household by compulsion of the criminal law, in April 1983, is fraught with difficulties. It ignores the plausibility of the statement made to DC. Some assessment had to be made of the consequences of such a course for the complainants. To fail to do so would have been a breach of the duty the officer undoubtedly owed to the complainants. There was no finding that, if charged, LX would have pleaded guilty, nor could there be such a finding on the evidence. It was not, however, an hypothetical consideration for a welfare officer. If LX was arrested and charged and did not plead, the complainants would be required to give evidence. What would have been the consequences of that course for them? There is no clear answer in the evidence, except that when they were called upon to give evidence against their stepfather some years later, in the course of criminal proceedings, the experience appears to have triggered a psychological collapse in each case. It must be accepted that the senior officer in YACS on whom the hypothesised duty lay to report to police (or at least to consider reporting the matter to police) would have had to consider such matters. Indeed, whether or not a plea was entered, the officer would have had to consider whether LX would be granted bail, would have had to make assumptions about the effectiveness of any conditions imposed on bail and would then have had to consider whether those conditions would be more effective than orders made by the Children's Court. 3. These are not factual questions for this Court (or the trial judge) to answer; they are raised as potential, but legitimate, considerations, which demonstrate the inappropriateness of imposing on the State in the circumstances of the case as known to officers within YACS at the time, a duty to report the criminality of LX to police. (b) what triggered the duty? 1. But even if it did exist, was the duty generic in the sense that it applied to all reports of child abuse? Or was it some specific aspects of the present cases which engaged the duty? If the latter, these circumstances were not identified, except by reference to the Guidelines, and then in a different context. Or was the duty limited to cases where other (appropriate) action had failed? If the last, the duty could only arise where the failure was known (or should have been known) to officers in YACS. That raised a factual question which will be addressed below in considering breach. (c) error in judgment at trial 1. The trial judge undertook a careful analysis of the authorities and identified, correctly, the principles to be applied in determining whether a duty of care with the scope asserted by the claimants was established. In my view, the exercise of applying the principles miscarried in two respects, each of which is readily identifiable by reference to the comprehensive reasons given by the trial judge. 2. The first error arose in the following passage, at [25]. Having dismissed the possibility that a duty would not arise because of the indeterminacy of the class who might benefit, the trial judge continued: "Nor is there any problem with the need to preserve the coherence of other legal principles or of the scheme of [the Child Welfare Act] which governs the Department's relationship with the plaintiffs. On the contrary, the whole purpose of the Act is to protect children at risk, taking action to that end does not conflict with the Department's statutory responsibilities; it gives effect to them. To the extent to which the exercise of the Department's statutory powers may extend to reporting apparently criminal conduct to police, the suggested common law duty operates entirely consistently with the criminal law which under the common law in force at the time made it a felony to fail to report serious crime: Sykes v Director of Public Prosecutions [1962] AC 528. In general terms, the law of torts and the criminal law have common origins. There is no incoherence or inconsistency in them working together." 1. The need for coherence was properly identified, consistently with authorities such as Sullivan v Moody, to which the trial judge had given careful consideration. However, the principle was applied at too high a level of generality. As was sought to be explained above, in a particular case the public interest in protecting a victim of child abuse from further harm and the public interest in prosecuting her abuser may indeed conflict. The potential conflict would arise starkly in a case where it was believed that the child's mental health would be at risk if she were required to be a witness against her abuser (especially if another family member) in criminal proceedings. In that case the imposition of a common law duty to report the investigation to the police for the purpose of protecting the victim, would lead to actual conflict and thus incoherence. That is a powerful (if not conclusive) reason why the duty should not extend so far. 2. The second possible concern with the reasoning of the trial judge does not arise from the passage quoted above (which appears to identify the scope of the duty as relating to the reporting of criminal conduct to police) but rather the conclusion with respect to the common law analysis which was "to impute a legal duty of reasonable care on the Department in the exercise of its statutory powers." [70] If that were understood to be the final conclusion, it operated at a level of generality which involved no issue: what was in issue was the scope of that duty and whether it extended to reporting complaints of child abuse to the police. 3. The preferable inference is that the duty was defined in the passage set out earlier, from [7]. [71] However, because that merely imposed a duty to use reasonable care "in the exercise of" the statutory power which included reporting to police, it obscured the fact that the power was not exercised. If care were to be undertaken in considering whether to exercise a power, quite different issues would arise, revealing the need to resolve conflicting pressures. In the result, the assessment of incoherence was effectively deferred to the discussion of breach (at which point it did not occur). That approach does not accord with the statements of principle with respect to the identification of the duty set out above. (6) Scope of duty – conclusions 1. In its scope, the duty of care owed to the appellants by the State through its officers in YACS did not extend to the statutory power to report to police the allegations of criminality by LX. In reaching that conclusion it is necessary to put aside, because not relied on by the State, the arguable case that s 148B(5) of the Child Welfare Act was not engaged because (a) this case was not concerned with a "notification" of child abuse and (b) there was no evidence as to the state of satisfaction of the Director. It remains relevant that the power to report to a constable of police was for the purpose of child protection, not prosecution. The scope of the duty was limited because the common law will not impose a duty of care in circumstances where it would create obligations to consider interests (in this case, the public interest in the prosecution of offenders) potentially inconsistent with the proper exercise of the statutory function (of child protection). 2. It was clearly arguable that officers in YACS owed a duty of care to the claimants in exercising their powers to protect the children. Had nothing been done following the complaints, that duty might well have been breached. But things were done. It may have been arguable that there was a duty to consider the available options, but that too was done. No doubt for these reasons, the claimants formulated the proposed duty as one requiring that a step be taken which was not taken. To accept that proposition would be to convert a statutory discretionary power, involving a balancing of countervailing considerations, into a common law obligation imposed by the court. That step is not warranted and should be rejected. 3. Any liability of the State was vicarious so that, in the absence of a finding as to a relevant duty breached by its officers, no liability arose. C BREACH OF DUTY (1) Finding of breach by State 1. Once the judge had accepted that the circumstances of the case imposed a duty to report the complaints to police, only two questions remained. The first, a factual question, was whether the complaints were reported to police. The judge was satisfied that they were not, a finding challenged by the State. The challenge to that carefully reasoned finding should be rejected for the reasons given by Ward JA. 2. The second question, a mixed question of fact and law, was whether that breach involved a failure to comply with the standard fixed by s 43A of the Civil Liability Act. The judge made a finding in those terms: [72] "I have already recorded findings that the risk of TB and DC each suffering further or continuing physical and sexual abuse was both foreseeable in the sense of being not fanciful or far-fetched, and not insignificant. … Looking at that matter wholly prospectively as though further and continuing abuse alleged by each plaintiff had not occurred, and looking at the question from the standpoint of a responsible public authority, having the particular expertise and functions of the Department, I have concluded that no authority acting reasonably could properly consider the failure to report the abuse of TB and DC to the police to be a reasonable exercise of the powers conferred upon it by s 148B(5)(b) [of the Child Welfare Act]." 1. The trial judge identified the temporal element, as refined by the claimants in oral argument, as requiring that a report be made to the Child Mistreatment Unit "no later than 28th April 1983 or as soon as practicable thereafter." [73] That was based on the proposition that by 22 April 1983 Ms Quinn had knowledge of the allegations by TB and had the stepfather's criminal record for sexual offences. On 28 April, she and a senior colleague, Mr Frost, interviewed the mother, who confirmed details of the abuse disclosed by TB and DC. In short, the finding was based on the history of pre-complaint abuse, not on anything that happened after the abuse was reported to YACS. 2. Somewhat curiously, having reached a conclusion as to the question of breach, applying the standard in s 43A of the Civil Liability Act, the judge then addressed the issues raised in determining questions of breach in s 5B of the Civil Liability Act. He stated at [105]: "To the extent to which it may be necessary to give separate consideration to the s 5B(1)(c) condition, in my judgment, in the circumstances, and having regard to the s 5B(2) considerations, a reasonable public authority in the Department's position would have taken the precaution of reporting the matter to the police. There can be no question from what the Department knew from as early as 22nd April 1983, of the stepfather's serious criminal record for sexual offences and of the information it received from TB and DC and their mother by 6 May 1983, that there was a high degree of probability that the abuse would continue if care was not taken. Given the nature of the past abuse, if the harm did occur, it was likely to be very serious. The burden of reporting the matter was slight. No more was required than the Department act in accordance with the guidelines for inter-departmental co-operation it had agreed with the police and the Department of Health. It needed only to observe what Mr Maguire, Mr Frost, the District Officer, and Ms Whale regarded as the Department's own invariable practice in any event. That involved no more than the District Officer, after she had notified Montrose, reporting the matter to Mr Frost and him telephoning the New South Wales Police Child Mistreatment Unit. No issue of any difficulty, inconvenience or expense arises capable of displacing these other considerations. Nor does any question of social utility arise in accordance with s 5B(2)(d)." 1. There are two errors revealed in this reasoning. The first reflects the problem flowing from the finding that the abuse did not continue. To conclude that there was "a high degree of probability that the abuse would continue if care was not taken" was not to make a finding of negligence: it was necessary to say why the steps in fact taken did not satisfy the duty. The next step involved an elision: to find that another step could have been taken and usually was taken, was not to say that it was necessary in order to fulfil the duty in the present case. 2. The second error is revealed in the earlier reasoning at [104]. To say that no reasonable officer could have failed to take the omitted step is to assume that it was necessary, without asking if the abuse were continuing. That cannot be right. What was required was a careful analysis of what was done, in the exercise of the very duty of care said to have been breached, before determining that no reasonable authority could have failed to take an additional step. That exercise may be undertaken by reference to the exoneration of Ms Quinn, and having regard to the limited roles played by Mr Maguire, Mr Frost and Ms Whale. Further, although there was a finding that Ms Quinn was not negligent, it is curious that the act which was said to constitute negligence "involved no more than" Ms Quinn, after notifying Montrose, reporting the matter to Mr Frost and him telephoning the police. (2) Finding of no negligence by Ms Quinn 1. Although concluding that "the Department" was negligent, [74] he concluded that, if Ms Quinn owed an independent duty of care, she was not negligent. [75] In particular, the judge explained: [76] "The plaintiffs do not say that any of the other steps taken by the District Officer for their protection were inappropriate. A careful consideration of the extant contemporary records… demonstrates that the District Officer was careful, conscientious and diligent in the exercise of her functions for the protection of TB and DC. Leaving aside for the moment the contentious question of whether complaints of further abuse were made to her by TB and DC, the steps actually undertaken by the District Officer were appropriate action for the purpose of s 148B(5)(b) [of the Child Welfare Act]." 1. There was no challenge on the appeal to this finding and Ms Quinn was not a party to the appeal. However, some further explanation is required with respect to the differential treatment of "the Department" and its district officer, Ms Quinn. 2. First, it is necessary to identify the steps in fact taken by the district officer, about which no complaint was accepted. On 22 April 1983 a "place of safety" order was obtained from the Children's Court under s 136 of the Child Welfare Act, in respect of DC. The report prepared by the officer for a hearing in the Children's Court on 20 June 1983 stated: "Following [DC's] placement, [LX] voluntarily decided to leave the home and for a few weeks he stayed … at Guildford. (He has since returned home.) At this time [TB] became increasingly distressed. She felt her mother, brother and other extended family members blamed her for 'breaking up the family'. She felt ambivalent towards her mother, saying she loved her but resented her for loving her father and wanting to maintain a relationship with him. She felt her mother was siding with her father and that they were acting as if nothing had happened. During this time [TB] cut her wrists on two occasions. The Montrose After House Service became involved and reported on the incident. It seems that [TB] was falling into the 'victim role' feeling responsible for the family's problems and asked the Montrose worker to charge her as uncontrollable and lock her up in 'a home'." 1. The report continued with a careful and detailed history of the various members of the family, their relationships and noted that a child protection worker, a psychologist and another district officer had become involved with members of the family as part of the "case management". After dealing in detail with the different factors, and without ignoring "[LX's] long standing history of inappropriate sexual behaviour" the report concluded: "As this is an extremely complicated family it is felt there is a need for a period of thorough assessment and evaluation to be conducted by the professionals already involved with the family before a firm recommendation can be made. To ensure the safety and emotional well-being of [TB] and [DC] during this period, it is considered necessary that [LX] reside away from the home." 1. The recommendation to the Court was that there be a three month remand during which LX should be required to reside elsewhere. 2. A finding that "the Department" acted totally unreasonably in failing to report LX's conduct to the police Child Mistreatment Unit prior to the matter coming before the Children's Court on 20 June 1983 was inherently inconsistent with the finding that careful steps were taken by Ms Quinn, in terms of the regime put in place with respect to assistance for the family and with the recommendation to the Court, involving no negligence on her part. For there to be any breach of a common law duty up until 20 June 1983, it was necessary to demonstrate that court orders requiring LX not to live at home would be ineffective and would (or should) have been known to officers in the department to be ineffective. That would have required a finding of negligence on the part of the officers in recommending such steps. 3. Not only was no such finding made, but, to the contrary, the case against Ms Quinn was affirmatively rejected. Furthermore, it would have been necessary to formulate a duty of care in a manner which required a departmental officer with professional responsibilities to include in a report to the Children's Court material which, according to the findings of the trial judge, it was not unreasonable to omit. No duty should be imposed which conflicted with the officer's responsibilities to the court. No finding of negligence should have been made for the period from 28 April until 20 June 1983. 4. Thereafter, the family arrangements were those fixed by the Children's Court: there can be no claim for damages based upon the consequences of those orders, including non-compliance with the orders, unless some further negligent conduct was established on the part of the relevant officers. 5. Ms Quinn prepared a second report, dated 19 September 1983 and provided to the Children's Court on that date. The report contained three closely typed pages. Although there was a finding that Ms Quinn did not breach any duty of care in relation to the preparation of this report and the recommendation contained in it, it is necessary to set out parts of the contents of the report because it must have been found that others in the department acted negligently in this period. 6. The opening paragraph referred to the earlier report and continued: "During the remand period, [TB] and [DC] were permitted to return to the care of their mother as [LX] moved out of the family home. He has been residing in a house only a short distance from the family home. It has become evident that [LX] has made frequent visits to the home. This is of great concern as the visits have been very distressing for [TB]." 1. The report then dealt with the circumstances and opinions of each of the children, being TB, DC and their brother B. The report dealt first with TB, in the following terms. "During the remand period, [TB] commenced in the therapy group for adolescent sexual abuse victims. It is hoped this will help her resolve many of the issues of being a sexual abuse victim. At present, [TB] reports feeling depressed and uncomfortable at home. She desperately wants to remain with her mother, brother and sister, for whom she cares greatly, but feels pressured by them. She feels pressured by her mother into agreeing to Len's visits and feels guilty if she states that she does not want him to visit. [TB] is terrified of her step-father, particularly now she has exposed the abuse. [TB] reported that during the time that she was abused, [LX] told her that if she told anyone about the abuse he would 'get her' when the situation was settled. [TB] fears that Len will carry out this threat now that the end of the legal process is near. [TB] reported she does not want to have anything to do with her step-father again." 1. The report stated that the brother, B, was "very fond of his step-father" and resented his absence from the home. The officer opined that B "does not accept the reality of what his step-father has done and makes excuses for him or just ignores what has happened." The report further noted that all the children were aware of the previous sexual offences and the current court proceedings on a rape charge. 2. The report continued with respect to DC: "[DC] continues to have ambivalent feelings for her step-father. There is concern that she is repressing her feelings about him and the abuse, and that this repression is being reinforced at home. [Her mother] and [B] are unable to face the reality of the situation and cannot deal appropriately with the expression of negative feelings. [DC's] emotional distress seems to be expressed in covert ways such as bed wetting. [DC's] behaviour is typical of sexual abuse victims of her age. When her step-father visits, she is reportedly seeking his attention, sitting on his lap, etc. Victims of this age tend to approach the father repeatedly hoping that he will be changed and become the kind of father they had wanted. It is highly likely that as [DC] moves into adolescence the reality and issues of being a sexual abuse victim will emerge and her reactions alter accordingly. Most recently on 16/9/83, [DC] reported that she not care whether her step-father was living at home or not. It is very difficult to assess [DC's] true feelings as she is very ambivalent and largely influenced by the feelings of other members of the family." 1. The report dealt with the attitudes of the mother at some length. It also noted that LX had admitted the sexual interference and expressed hatred of TB, but did not accept responsibility for his abusive behaviour and the problems it had caused. The report noted that there had been a "case conference" held on 13 September 1983 attended by Ms Whale (child protection worker), Ms Davis (regional consultant on child protection), Mr Mazaleigue (psychologist) and Ms Quinn. The issues of concern which were noted included "[LX's] long standing history of inappropriate sexual behaviour and sexual offences" and the dangers to the emotional and physical safety of the girls should their father be allowed to return home. That part of the report concluded with the following statement: "It was considered vital that [TB] and [DC] be protected from the possibility of further abuse and from living in fear of abuse. As [LX] seems unlikely to change this can only be ensured by the girls not residing with him, not being alone with him and only have contact if they requested it. To ensure that pressure to accept [LX's] visits cannot be exerted it would be necessary for contact to occur away from the family home." 1. The recommendations placed before the Children's Court by the "case conference", as reported by Ms Quinn, allowed that both of the girls could be released to the care of their mother, subject to conditions consistent with the conclusions set out above. Significantly, the report contained neither complaints from the girls of ongoing sexual abuse, nor any opinion of those officers involved that physical sexual abuse might be ongoing. 2. The findings as to on-going abuse (and the evidence on which they were based) demonstrated that at no stage while the officers of YACS were seeking protective orders in the Children's Court were they informed that abuse was continuing. Nor was it demonstrated that the officers, and in particular Ms Quinn who was the most likely recipient of any complaint, ought to have realised that the abuse was continuing. 3. Ms Quinn was questioned at some length as to whether she asked TB as to whether the abuse was continuing after the initial conditions were imposed by the Court in April 1983. It was put to her that the statement in her report that "TB cut her wrist on two occasions" suggested that the abuse was continuing and that she would have asked TB as to whether it was. Ms Quinn responded that she knew of self-injurious behaviour happening "whilst abuse was happening and … long after abuse had stopped." [77] The following exchange took place: [78] "Q. It cried out for you to ask TB whether the abuse was continuing, didn't it? A. My difficulty is that in the absence of the case notes I don't know, because those details would be recorded in the case notes, I don't, I don't know. Q. If you asked the question and obtained an answer to it, you would have recorded that answer as being relevant at this point in time, wouldn't you? A. In a court report document? Q. Yes, because it goes directly to the risk to TB, doesn't it? A. I don't think I can actually agree with that, because I had already reached a conclusion that there was risk and expressed that, I believe, to both the senior officers and the court that I had already reached that threshold in my own mind that there was risk. Q. Then where is the evidence that you made any enquiry into whether or not the abuse was continuing in respect of TB and particularly [in] respect of DC who is in the same house as the abuser? A. That would be in the case file." 1. The judge then intervened to ask Ms Quinn whether, if she had received a history "that notwithstanding the intervention of YACS, that abuse, sexual abuse was continuing …. [w]ould that have been a relevant matter to include in your report for the information of the court?" Ms Quinn answered "Yes." [79] (3) Negligence of other officers 1. If Ms Quinn were not negligent in preparing this report for the court, it is difficult to understand on what basis any other officer attending the court conference was negligent. In fact, there was no finding that any officer in the department was negligent in presenting this report to the Court. The Children's Court conducted a hearing, the detail of which need not be recounted because it could not form the basis of any finding of negligence on the part of the State. However, two circumstances should be noted. First, the mother gave evidence in relation to the incidents recounted by the children. The transcript is partly illegible, but one answer was in the following terms: "I cannot give exact dates with [TB] it was I think she was 7 [TB] came and told me on the Saturday and I made arrangements on the Monday with my brother as to where to go. I had phoned the police and told them of incident and they declined to take my name they said that if they took my name they would have to follow through and could be devastating for the family and child." 1. In the record of the submissions made to the Court, YACS and LX being represented, the following statements are found in the exchanges with the magistrate, who said: "I intend to take every possible step to ensure the protection of those children. Mrs [X] I am somewhat amazed at your comments about they are as bad as one another. You accept the word of a person with criminal convictions over your own daughters. … [TB] is suffering emotionally. I cannot be overlooking and sympathise that he has made threats to her. He has raped he[r] … and lived in the house she has emotional fear …. She does not want to see him. I can only go along with the view that [DC] is going to appreciate … what that man has done to her and she will become the same as [TB]. You say that you reported it to the police. MRS [X]: I only said interfered with. BENCH: I can only say if you had used intercourse. I get the impression that you are playing it down and I do not want that. … … I intend to call for psychiatric assessments. I have spoken to [TB] and she has no objection to home. Sexual offences alleged are in relation to girlfriend and involves association. [He] is innocent until proven guilty. I would like [to know] more about that strength of the prosecution case because [of] the nature of the matter. I should have report of psychologist of effect on the children and psychiatric examination. I will allow the children home on basis that he does not attend the home at all." 1. Orders were made in accordance with the indication given by the magistrate and the matter was then adjourned until 24 October 1983. 2. Ms Quinn prepared a further report dated 21 October 1983. It was brief, and maintained the recommendations in the report of 19 September 1983. It referred, however, to the further psychological assessment which had been provided by way of reports from Dr Blow and Ian Skead (psychologist). It was noted that the mother had gone to stay with relatives in Queensland for a week and that alternative arrangements had been made for the care of the children. 3. Mr Skead prepared a detailed report covering three and a half closely typed pages. It included accounts of interviews with TB, carried out at her school on Friday, 14 October 1983 and with DC, at a community welfare office, on Tuesday, 18 October 1983. The mother was interviewed at home on two separate occasions. The recommendations, in a separate document signed by both Ms Quinn and Mr Skead, required that the girls be released to the care of their mother pursuant to s 82(2) of the Child Welfare Act on condition that they not reside with their stepfather, have contact with him only if they requested it and then away from the family home and the grounds of the family home, requiring the mother to accept supervision of the district officer and to allow the girls to attend counselling as recommended by the district officer. Orders were made in those terms by the Children's Court. 4. A number of inferences can comfortably be drawn from this material. First, the YACS officers involved with this family neither disregarded nor disbelieved the complaints of sexual abuse. The accounts given by the two girls were investigated thoroughly and expeditiously; significant resources were deployed. 5. Secondly, it is clear that the officers identified both the harm which had occurred and the risks of further harm. Careful consideration was given to dealing with the girls as the victims of child abuse and the provision of counselling for them. As to the future risks, they were identified as twofold. As noted in Ms Quinn's report for the hearing on 19 September, the common view of the four officers involved was that it was "vital that [TB] and [DC] be protected from the possibility of further abuse and from living in fear of abuse." It was also accepted that, especially in relation to TB, the presence of LX was both a source of pressure and a source of fear. However, the fear expressed was not that of further abuse, so much as physical violence for having exposed his abusive behaviour. 6. Accepting the finding of the trial judge that there was no report made to the police with respect to LX's criminal conduct, the question is why the officers should have thought such a step reasonably necessary, not in furthering the public interest in prosecuting a criminal, but in order to protect the victims. If, as the trial judge thought, no reasonable departmental officer with appropriate authority could have failed to make such a report, it is surprising that this did not occur to the magistrate at Cobham Children's Court, who gave extensive consideration to the appropriate orders in the course of a number of hearings. As noted above, he was, as would be expected, alert to the possibility of prosecution. However, his question in relation to reporting to the police was raised in the context of the mother reporting the matter to the police, which was directly relevant to his assessment of the capacity of the mother to care for the children and protect them from the stepfather. At no stage did he ask Ms Quinn, who gave evidence, whether the department had reported the complaints to the police, nor suggest that they should. If an independent judicial officer responsible for making orders for the protection of the children and clearly intent on that exercise did not think reporting to the police essential for the purpose of protecting the victims, it reeks of hindsight for a court, 30 years later, to adopt a different view. 7. It is relevant to note how the trial judge came to form such a conclusion. The first step taken, after identifying the relevant issues, was to address the question as to whether, as a factual matter, the abuse was reported to the police. His conclusion that it was not should be accepted; however the focus on the factual issue distracted attention from the properly anterior question, namely whether the accepted duty of care required such conduct. The failure to consider that issue prospectively arose in part from the fact that the State called evidence to prove that the matter had been reported to the police. That evidence asserted that it was routine practice in YACS at that time to do so. It would be easy to infer that, if such were the routine practice of the department, it was something which was reasonably required in all cases. However, that reasoning is fallacious on two counts. First, if there were no reporting in the present case, despite a careful investigation and the involvement of a number of officers, it would appear that the routine practice was not treated as mandatory in all cases. Secondly, and more importantly, the proposition that such a course was routine omits consideration of the purpose for which the course was taken. The issue in the present case was whether the exercise of reasonable care for the safety of the children required that step. As already noted, there were broader public interest concerns which might have warranted such steps being taken for entirely separate reasons. That issue was not addressed. 8. In the context of considering whether any report was made, the trial judge considered a set of "Guidelines in relation to notifications" prepared for officers of YACS, the Police Department and the Health Commission in respect of matters relating to child abuse. [80] These coincided with the commencement of s 148B, although for reasons set out above, the better view may be that this case did not fall within provisions relating to such "notifications". (That the Guidelines may have been applied to all cases of child abuse would be understandable.) The evidence, which included statements and oral testimony of the officer in charge of the Blacktown District Office of YACS in April 1983 (Mr Maguire) and the officer with responsibility for child protection matters in that office (Mr Frost), as well as the evidence of Ms Quinn, did not establish that these Guidelines applied to complaints from victims of child abuse. 9. Nor did the Guidelines establish a uniform practice of reporting all cases of child abuse to the police. The Guidelines indicated that notifications to YACS were to be reported to a specific service within that department, the Montrose Child Protection and Family Crisis Service. [81] As the trial judge noted, the guidelines also provided examples of circumstances in which "[i]t would be appropriate" for a decision to be made to "involve Police Officers". [82] The trial judge stated that in this case, which fell within the categories of examples, reporting was "mandatory", although the Guidelines did not say so in so many words. Furthermore, the decision to lay charges was a matter for the police acting in consultation with the senior executive officer at Montrose and other members of YACS, in order to achieve a "consensus". [83] 10. The finding that the reporting was "mandatory" was relevant to the question as to whether the matters involving DC and TB were in fact reported to police. After considering the evidence of Ms Whale (who spoke with the stepfather) [84] and Ms Quinn (whose evidence as to reporting was rejected), [85] the judge concluded that no report was made. [86] The judge appears to have placed weight on the formality of the procedure in reaching the conclusion that, on the probabilities, in the absence of any record of such reporting, "these matters were not reported to the police". [87] 11. Accepting that finding, and the evidence of Mr Maguire, Mr Frost and Ms Whale that there was an "invariable practice" of reporting to the police, did not establish that a failure to report constituted a breach of the duty of care owed to the children. Indeed, the existence of an "invariable practice" would tend to support a different finding, namely that reporting to the police did not depend upon establishing a need to do so to prevent ongoing abuse of the child. Accordingly, the question to be addressed was whether, in the circumstances of the case, reasonable care for the girls required that the offences be reported to the police. That question depended upon what relevant officers in YACS knew or ought to have known of the risk of ongoing abuse. (4) Did the abuse continue after complaint to YACS? (a) whether complaints of on-going abuse 1. If the evidence failed to demonstrate that responsible officers in YACS had actual knowledge that the steps they had taken to seek to protect the children, had, at some point, failed, the duty to report would not have been breached. That is because the sole relevant purpose of reporting to police was to protect the children. 2. This question was not addressed in this context in the trial judgment. However, after the judge had made a finding of negligence on the part of "the Department", he turned to the question of harm. As the judge correctly noted, "[n]o action for negligence lies unless the plaintiff proves on the balance of probabilities that the negligence I have found caused further and ongoing physical and sexual abuse resulting in consequential mental harm". [88] The position taken by the State at the trial was that the judge could not be satisfied that abuse probably continued after complaints were made by the claimants, but it also asserted, positively, that "no complaints of any continuing abuse were made by either TB or DC, in particular, to the District Officer." [89] The judge said: [90] "[t]he question of whether complaints were made is relevant in two ways. First, it may be probative of whether abuse was actually occurring; and secondly, the complaints may constitute notification for the purpose of s 148B(2) … enlivening a power, perhaps obligation, to further investigate". 1. There was no doubt that the questions were inter-related: that is, absence of abuse would explain absence of complaint, and absence of complaint might imply absence of abuse. The trial judge gave careful consideration to the evidence as to whether further complaints were made. He heard evidence from DC and TB and from the district officer. The judge considered both issues and made complementary findings. With respect to TB, he concluded: [91] "It almost inevitably follows from this, that I am not satisfied that there was any complaint of ongoing abuse to the District Officer. However, I prefer to record my finding that in the absence of any contemporaneous record of complaint in the extant material, I accept the evidence of the District Officer … that she has no recollection of any complaint. Again this is hardly surprising after the effluxion of time. However, from what I regard as the care she took in compiling her reports to the Court, I am of the view, that had such complaints been made, they would have been recorded in those reports and reported to the Children's Court. I am not satisfied on the balance of probabilities that TB complained of ongoing abuse to the District Officer." 1. The trial judge made similar findings with respect to DC, including the statement that "there is no history recorded at all of any further sexual abuse by her stepfather after the Department was notified." [92] 2. These conclusions were supplemented by the judge declining to find that either claimant had suffered on-going abuse after April 1983. In the course of the appeal, these findings were challenged. It is convenient to address first the finding with respect to TB. (b) continuing abuse of TB 1. The finding that TB had not satisfied the onus of establishing any complaint of on-going abuse turned squarely on the credibility of TB and Ms Quinn. In a statement dated 17 March 2014, TB had referred to meetings with Ms Quinn during a six month period from May 1983 to October/November 1983. She said she may have seen Ms Quinn "on 20 or 30 occasions during that time." [93] She said that she told Ms Quinn that "Len was continuing to come round and that nothing had changed". She said Ms Quinn "never specifically asked me if Len was continuing to sexually abuse me. Neither did I explicitly volunteer that fact to her." [94] However, she also said that LX "would take any opportunity to sexually assault me" and that "[t]he sexual assaults from April 1983 to March 1984 were many." [95] The conduct described included putting his fingers in her vagina, fellatio and feeling her breasts. [96] TB also said: [97] "Len's sexual assault on me continued through until the end of 1983. Even though I had entered into employment he would still use every opportunity available to him to put his fingers in my vagina and to put his penis in my mouth." 1. The trial judge had careful regard to the various reports prepared over the year, noting that there was "a lack of any explicit record of any abuse after April 1983." [98] The judge referred to instructions given to Dr Michael Diamond, psychiatrist, by TB's solicitor in December 2007 advising him that the abuse had "occurred 'between 1975 … and early 1983'." [99] Dr Diamond took a detailed history from TB in February 2008, including sexual abuse up until 1983, but recorded no history of abuse after April 1983. [100] 2. The judge had regard to matters which supported a finding that the abuse continued: [101] "Matters which do favour a finding that the abuse continued after the report include the stepfather's abhorrent behaviour; that he committed a sexual assault in January 1983 for which he was later convicted; further allegations of sexual assault in early 1984, which were dropped; the mother's dependency upon the stepfather and her unwillingness to let go of him, despite her knowledge that he had previously abused her daughters; the mother's tendency not to comply with the conditions of orders made by the Children's Court in the interim period between April 1983 and October 1983, in particular, allowing visits from the stepfather to the family home; the stepfather's bad criminal record for sexual offences; and the District Officer's legitimate concern that TB (and DC) continued to be at risk from him." 1. The trial judge then noted that "these factors all go merely to a continuing or increased risk", which did not demonstrate on the probabilities that abuse had continued. His finding in that regard was in the following terms: [102] "In the absence of any contemporary documentation of any significant abuse after the notification to the Department and having regard to the large body of subsequent statements by TB which failed to mention ongoing abuse, I am not satisfied on the balance of probabilities that physical and sexual abuse of the type previously inflicted by the stepfather continued after the report to the Department." 1. Given that this conclusion depended upon a rejection of TB's oral evidence to the effect that the abuse continued, it depended upon a credibility finding. (c) continuing abuse of DC 1. The critical evidence in relation to DC appeared in her statement of 22 April 2014. [103] "51 Before Len moved from Lalor Park to Blacktown and after I had been returned home from the foster homes, Len resumed sexually assaulting me. 52 From the time Carolyn Quinn interviewed me in mid-April 1983, Len did not attempt to rape me by putting his penis in my vagina. However, from April 1983, his sexual assaults involved putting his hand into my underclothes and pushing his fingers into my vagina and putting his penis in my mouth and holding my head with both hands and pushing my head back and forth on his penis." 1. The trial judge referred to this evidence, [104] acceptance of which was central to her claim. As with the evidence of TB, the judge undertook a careful and thorough examination of the documentary record, which he said "does not support DC's evidence about this abuse." [105] With respect to DC's behaviour at the time, the judge said: [106] "It is possible that some of DC's reported behaviour could be explained by ongoing abuse, but it may [be] explained by past abuse. In the absence of any contemporary evidence of abuse, or complaint of abuse, past abuse is the more probable explanation because of the undisputed evidence that it occurred." 1. The judge then noted a number of statements made by TB between 2001 and 2008, including a letter from her solicitor to Dr Diamond, referring to abuse occurring "on an almost daily basis until about April 1983". The judge also said in respect of Dr Diamond's report, following a consultation with DC on 1 February 2008, that it included "no history recorded at all of any further sexual abuse by her stepfather after the Department was notified." [107] 2. However, Dr Diamond did refer to a history noted in a report prepared by a treating psychologist, Dr Janina Szyndler, who first saw DC in 2005. In taking a history in 2006 (more than 20 years after the events), Dr Szyndler noted that "[t]he abuse ended before [DC] turned 13", which would have been before October 1983. However, Dr Szyndler also recounted: [108] "The abuse came to the attention of authorities when [DC's] older sister disclosed to the school counsellor. [DC] was 11 at the time. DoCS removed [DC] and her sister and told their mother that [LX] had to leave the family home. He did very briefly and the girls returned home. However, [LX] then returned. [DC] told me that her mother then chose [LX] over the children. [DC] described her mother taking them to visit [LX] and insisting that they should sit on his lap and kiss him goodnight. She recalled that he would then grope her." 1. It is possible that the trial judge overlooked that evidence, which was equivocal as to the timing: did it occur before or after LX returned home? (Dr Szyndler did not give evidence.) The report was, however, deployed to attack DC's credit. DC was cross-examined to suggest that the reference in the report to "groping" was inconsistent with DC's evidence that oral sex continued. DC she said that she considered oral sex to be "the same as him raping me" and agreed that she would not describe that as "merely groping". [109] This material cannot be relied on to cast doubt on the trial judge's express rejection of DC's evidence: its effect is the opposite. 2. The judge then recorded factors which indicated that DC was at risk of further abuse: [110] "I accept that the mother's dependence on the stepfather; the stepfather's bad record and history of previous abuse; DC's vulnerability as a child sex abuse victim; and the concerns of the District Officer, were all factors which demonstrate that DC was at risk of further abuse by the stepfather whilst in her mother's care, after the Department was notified in April 1983. However, increased risk is insufficient of itself to prove causation." 1. The judge concluded: [111] "I have already expressed the view that DC's evidence about the attendance at Blacktown Police Station was a reconstruction. Such a phenomenon may be informed by her psychiatric condition, raising as it does, aspects of disassociation. The absence of any record of any ongoing abuse in any contemporary document and, indeed, the absence of a history of it in the accounts given to police and Dr Diamond between 2001 and 2008 make comfortable acceptance of her evidence about the post notification abuse difficult. I did not find her account of the post notification abuse, or her evidence about complaining to the District Officer, persuasive." (d) no basis for interference 1. The trial judge having (a) heard oral testimony, over some days, from each of the claimants and from Ms Quinn, and (b) chronicled over many pages the lack of evidence of any complaint until long after the criminal proceedings had been taken against LX, concluded that there had been no continuing abuse after the initial action taken by YACS. It may be accepted that there was a real risk that LX would continue his predatory conduct; but that was the very risk against which Ms Quinn had sought to guard and was expressly considered in assessing the claimants' credibility. It could not be assumed that abuse continued; it was a critical element that had to be proved. The belated evidence of the claimants that it did (without which their claims had to fail) required sceptical evaluation. The analysis of the trial judge was thorough and, with only one possible and immaterial error, impeccable. 2. The credibility findings with respect to TB and DC cannot be rejected on any of the bases identified in Fox v Percy. [112] They were not "glaringly improbable", but rather the contrary, given the absence of documentary records of complaint. In relation to TB, the trial judge was entitled, indeed obliged, to assess her claims of post-complaint abuse against the absence of any supporting evidence until her evidentiary statement made for the purposes of the civil claim, in 2014. In relation to DC, there was the somewhat equivocal reference in the history recorded by the psychologist in 2005-2006, which referred only to being "groped". Otherwise she too made no complaint of such conduct until 2014. 3. The refusal to be satisfied as to the truth of the claimant's evidence was not to make a ruling inconsistent with any incontrovertible fact. There was nothing like the skid mark on the road leading to the rear tyres of the defendant's vehicle, indicating that it was in fact on the correct side of the road, as in Fox v Percy. There is no doubt that, given the long standing predatory behaviour of LX, which formed the basis of the complaints to YACS, each was at risk of continuing abuse. That was, as the trial judge expressly accepted, a factor which placed them at risk of continuing abuse, absent effective intervention. However, there was no incontrovertible evidence that they were in fact abused after YACS' intervention. That the trial judge rested his conclusion on his failure to accept the credibility of the claimants is undeniable, as is the fact that he gave careful consideration to the evidence which might support or not support their claims. There is nothing to demonstrate that the credibility findings were erroneous. It would be inconsistent with the appellate restraint mandated by Fox v Percy, recently affirmed in Robinson Helicopter Company Inc v McDermott, [113] and a long line of authorities to the same effect, for this Court to set aside those findings and conclude that the claimants were telling the truth. It is not open to this court to intervene. D DAMAGES 1. In circumstances where the claimants must fail, if not at the point of establishing a duty of care owed by relevant officers in YACS, at least having regard to the elements relied upon as demonstrating breach of duty, it is preferable not to deal with the questions relating to the assessment of damages. That assessment was replete with difficulties. 2. First, it assumed that abuse had occurred when the judge concluded it had not. How serious was the abuse assumed to be in this counter-factual? There is no doubt that the claimants have suffered serious psychiatric injury as a result of years of sexual abuse inflicted by LX. To the extent that aspects of the symptomology only surfaced at or following the criminal trial in 2005 is beside the point. All the psychiatric harm was consequential upon his conduct over several years. 3. If the claimants had sued LX, no issue would have arisen as to the stages at which the harm arose. However, in bringing a claim in negligence against the State, the claimants had to establish that, at least in part, psychiatric injury resulted from LX's conduct after the complaints to YACS' officers in April 1983, or at some point thereafter when it should have been apparent to the officers that the steps taken to protect the claimants were inadequate and that further steps were required. That could not have been sensibly assessed (by the psychiatrists) or proved before the court without knowing what was found to have occurred and when. 4. Secondly, although the temporal element was significant, it was not adequately addressed. For example, it was necessary to determine, on the assumption that knowledge of the failure of the process was relevant, whether and when those matters became known, or should have become known to officers in YACS. It was also necessary to determine when, if the matter had been reported to police, LX would have been arrested. 5. It would then have been necessary to identify the periods during which each of the claimants was at home and vulnerable. For example, from about 20 April 1983 until about 20 June 1983 DC appears to have been in a foster home. She then returned to the family home for a short period before being sent to Dalmar. She may have been in the family home for one or two weeks, in July 1984, at which point she left. Assessment of what harm occurred after the critical date required identification of the periods during which the harm occurred. 6. Thirdly, if the harm suffered during the post-complaint period materially contributed to the overall injury, the State was arguably liable for the full amount of the loss, not for a proportion. On another view, if the damage had already occurred, it was liable for nothing. The trial judge dealt with the alleged causal factors (having determined as a fact that he was not satisfied that any harm was caused post-complaint) by reducing the damages by a factor of 70%. [114] He did so by seeking to undertake the exercise of "disentanglement" adopted in cases such as Watts v Rake [115] and Purkess v Crittenden. [116] The justification for such an approach was at least contestable. However, given that the assessment of damages is entirely hypothetical, this is an inappropriate vehicle for considering the correct approach to such questions. E CONCLUSIONS 1. These reasons lead to the following conclusions: 1. the State's contention that the duty of care owed to the appellants did not extend to an obligation to report the conduct of LX to the police should be upheld; 2. the challenge by the State to the finding that the complaints of child abuse against LX were not reported to the police should be rejected; 3. the appellants' challenge to the finding that no further abuse was shown to have occurred after the complaints to YACS should be rejected; 4. in the absence of any finding of ongoing abuse after the complaints were made, the State's challenge to the finding that officers in YACS were in breach of their duty of care to the appellants should be upheld; 5. in the absence of any finding of negligence on the part of its officers in the department of YACS, the State is not vicariously liable to the appellants; 6. the ultimate finding that the State was not liable in damages to the appellants should be upheld. 1. I would propose the following orders: 1. Dismiss the appeals brought by the first and second appellants from the judgment in the Common Law Division given on 22 May 2015. 2. Order that the appellants pay the costs of the State of the proceedings in this Court. 1. WARD JA: The appellants, DC and TB, are sisters. They were the victims of ongoing sexual and physical abuse by their step-father over a number of years from the time when they were around five and seven years of age, respectively. The abuse was first the subject of complaint by TB to the then Department of Youth and Community Services (the Department) in April 1983, when TB was 15 years old, although complaints had been made by both the appellants to their mother at a much earlier time (sadly, to no effect). 2. Following the making of the complaint by TB to the Department, both sisters were interviewed by a case officer from the Department (Ms Quinn) – TB on 20 April 1983 and DC on 22 April 1983. The mother was interviewed by Ms Quinn on 28 April 1983. In that interview, the mother admitted awareness of the sexual abuse and acknowledged that her daughters had complained of it to her. 3. Each of TB and DC was then charged, at the instigation of Ms Quinn, under the provisions of the Child Welfare Act 1939 (NSW) with being a neglected child. Those charges were dealt with by a special magistrate in the Children's Court in proceedings culminating in a hearing on 19 September 1983. On 15 September 1983, thus shortly prior to the 19 September hearing, Ms Quinn had interviewed the step-father in the presence of a child protection officer from the Department, Ms Whale. In that interview, the step-father admitted the sexual abuse and appeared to the case officers to be unrepentant. Final orders were made on 7 November 1983 releasing the children into the care of the mother on conditions that were clearly intended to restrict the step-father's access to the appellants. 4. The present proceedings relate to the period between the making of the complaints to the Department by each of TB and DC in April 1983 through until March 1984 (in the case of TB) and July 1984 (in the case of DC), during which time it is not disputed that there was ongoing contact between the appellants and their step-father. The appellants allege that the sexual abuse by their step-father continued in that period. The claim that they ultimately brought against the respondent (the State, representing the Department) relates to the psychiatric harm they have since suffered. 5. Nearly 20 years after the step-father's physical and sexual abuse of the appellants had (on any view of events) ceased, in August 2001, the appellants reported the sexual abuse to the police. Following an investigation then carried out by the police, the step-father was arrested in June 2004 and charged with a number of offences, including the rape and indecent assault of each of DC and TB and assault occasioning actual bodily harm to TB. The charges related to conduct over the period commencing 1 January 1974 through to 1 October 1979 (in the case of TB) and 1 January 1975 through to 1 October 1979 (in the case of DC). The charges did not encompass any post-April 1983 conduct. 6. The step-father was committed for trial in February 2005. The trial commenced on 1 August 2005. At that stage, the step-father pleaded guilty only to one of the nine charges. However, after each of DC and TB had given evidence, and had been cross-examined, the step-father pleaded guilty to the balance of the nine charges. He was in due course sentenced to 10 years' imprisonment with a non-parole period of 4 years. 7. It was known to the Department by at least June 1983 that the step-father had an extensive criminal history involving sexual offences, including against children. Indeed, Ms Quinn was aware of at least some of the step-father's history of sexual offences by as early as April 1983, since her first report to the Children's Court dated 20 June 1983 referred to this. Further, during the period in which the Children's Court proceedings were on foot, the step-father was facing charges relating to the rape with violence of his natural son's 15 year old girlfriend in January 1983, for which he was subsequently convicted and for which, in December 1985, he was sentenced to a total term of imprisonment of 4 years with a 3 year non-parole period. 8. In 2008, the appellants commenced proceedings in the Common Law Division of the Supreme Court against the respondent and Ms Quinn, claiming damages for alleged breach of a duty of care owed to them. An extension of the limitation period was granted for the bringing of those claims. In the proceedings the appellants contended that the Department breached its duty of care to them by not reporting the abuse to the police. They maintained that, had the Department done so, they would have been protected from the possibility of any further abuse on the basis that the step-father would have been charged and, even if released on bail, would have been subject to bail restrictions that would have protected them. The appellants each claimed damages, including aggravated and exemplary damages, by reference to psychiatric injuries occasioned by the abuse – post-traumatic stress disorder. 9. The primary judge gave judgment in favour of the defendants (TB v State of New South Wales and Quinn; DC v State of New South Wales and Quinn [2015] NSWSC 575). 10. In summary, his Honour found that: the Department owed each of TB and DC a duty actionable under the law of negligence to use reasonable care in the exercise of its powers for the protection of children at risk, conferred by s 148B(5) of the Child Welfare Act ([7(a)]; [27]); the Department breached that duty of care by omitting to notify the New South Wales Police Child Mistreatment Unit (CMU) of the serious physical and sexual abuse suffered by TB and DC, as required by the inter-departmental guidelines to which both the Department and the CMU were party [7(c)]; [105]; no authority acting reasonably could properly consider the failure to report the abuse of TB and DC to the police to be a reasonable exercise of the powers conferred upon it by s 148B(5)(b) of the Child Welfare Act ([104]); a reasonable public authority in the Department's position would have taken the precaution of reporting the matter to the police ([105]); the Department was negligent ([106]); the Department should have reported the step-father's abuse to the police by no later than 28 April 1983 ([108]); and that reporting to the police would have led to the step-father being charged and the appellants thereby being protected from any further abuse ([172], [178]). 11. However, his Honour was not satisfied on the balance of probabilities that the step-father had continued to abuse the step-daughters after his previous misconduct was notified to the Department and on that basis his Honour found that the Department's breach was not a necessary condition of the harm suffered by TB and DC ([7(e)-7(f)]; [142]-[143]; [165]; [167]). 12. Had it been necessary to decide, his Honour would have held that, if the matter had been reported to the police, the step-father would have been charged with his serious offending and, if bailed, would have been subject to strict bail conditions that would have protected TB and DC from further abuse while he was at liberty awaiting trial ([7(g)]; [172]; [178]). 13. As to the claim against Ms Quinn, his Honour concluded that she may have owed the appellants a duty of care in the provision of welfare services but said that this duty was not the same as that owed by the Department and that, as the s 148B(5) powers were not conferred upon her, she owed no duty in relation to their exercise ([7(b)]). His Honour also concluded that, if he were wrong about Ms Quinn's duty, she did not breach any duty she may have owed under s 148B(5), having discharged that duty by reporting the abuse to her superior officers who had responsibility to implement the guidelines ([7(d)]). There is no appeal from those findings and Ms Quinn is not a party to the present proceedings. 14. His Honour made contingent findings as to the damages that he would have awarded had he given judgment for the appellants (addressing the issues in relation to quantum from [180] of his reasons). Relevantly, his Honour had no doubt that each of TB and DC had suffered serious psychiatric injury in the form of post-traumatic stress disorder as a result of their childhood physical and sexual abuse. His Honour considered that all of the abuse over the whole period of the step-father's offending had caused that condition ([181]). His Honour was persuaded that the correct approach was to treat the harm suffered by each of TB and DC and all of its consequences as indivisible ([181]). His Honour had no doubt that, had ongoing sexual abuse occurred after notification to the Department, those further assaults would have materially contributed to the totality of the harm suffered by the appellants ([181]). Nevertheless, since the appellants' injuries also resulted from abuse for which the Department had no legal responsibility (i.e., the pre-April 1983 abuse) ([182]; [183]) his Honour considered that the appropriate approach would have been to adopt an across the board discount of 70% corresponding to the harm referable to pre-notification abuse ([184]; [185]). 15. His Honour thus concluded that, had damages been awarded, TB would be entitled to an allowance of $377,500 (subject to the overall 70% discount) for non-economic loss and DC to the sum of $269,000 for that head of damage (subject to the same discount). His Honour would have allowed $461,312.50 for past care for TB and $319,272 for DC. His Honour would have allowed $439,576 for TB for future care and $316,898.64 for DC, in each case reduced by a further 15% on account of the chance of improvement and that each would need care in any event because of the effects of age. For past economic loss, his Honour said he would allow a total of $643,125 to TB (this figure to be adjusted to bring it up to date) and total of $358,791 for DC. His Honour also made allowances for future economic loss, $670,664 for TB and $341,428.90 for DC. His Honour would have rejected a claim for additional global allowance for past and future economic loss. His Honour made further calculations in respect of out-of-pocket expenses and future treatment costs. Appeal 1. By their amended notice of appeal filed on 12 October 2015 the appellants raise 17 grounds of appeal from the primary judge's decision. The appellants argue that the primary judge erred in: (1) Failing to find, on the balance of probabilities, that physical and sexual abuse of the Appellants continued after the report to the Department on 22 April 1983. (2) Finding that the accuracy of the detail was crucial in respect of the question of whether the Appellants were abused by their stepfather after the report to the Department on 22 April 1983. (3) Placing excessive weight on the contemporaneous materials in circumstances where he accepted that very few existed, and where there was no evidence that any of the authors asked the critical question, namely whether the abuse was continuing. (4) Failing to find that, where no report had been made to the Police, the stepfather was continuing to abuse the Appellants. (5) Placing excessive weight on the lack of written record of sexual abuse after the report to the Department on 22 April 1983. (6) Failing to give any or any sufficient weight to factors suggestive of ongoing sexual abuse of the Appellants after the report to the Department on 22 April 1983. (7) Failing to make adequate findings of: (i) primary facts; and (ii) reliability and/or credibility of witnesses. (8) Failing to place sufficient weight on the District Officer's belief that, having spoken to the stepfather in September 1983, the stepfather was "unlikely to change". (9) Placing excessive weight on the absence of reference to complaint of abuse of the Appellants after 22 April 1983 in documents which came into existence after that time. (10) Making findings in terms of "significant" abuse and abuse of a particular type or types, as opposed to directing himself to the question of whether any abuse occurred after the report to the Department of 22 April 1983. (11) Failing to give any or any sufficient weight to the changed behaviour of each Appellant subsequent to the report to the Department on 22 April 1983. (12) Finding that any complaint of ongoing abuse after 22 April 1983 would have been recorded in reports by the District Officer to the Children's Court had they been made. (13) Placing excessive weight on the absence of record of complaint in reports to the Children's Court made by the District Officer in circumstances where: (i) the District Officer had from the outset 'great concern for the physical and emotional safety of the children' because of the stepfather's record and 'longstanding history of inappropriate sexual behaviour' and knew he had returned to the family home; (ii) the District Officer did not recall asking either Appellant if the abuse was continuing; (iii) the District Officer was aware of altered behaviour on the part of the Appellants, including TB becoming 'increasingly distressed', significant distress on the part of DC, wrist slashing on the part of TB and a desire to be removed from the family home; and; (iv) the District Officer knew the stepfather was having inappropriate access to the Appellants and was of the opinion that the stepfather's access and his nature posed a significant risk to the Appellants; and (v) after interviewing the stepfather in September 1983, the District Officer recorded the belief that the stepfather was "unlikely to change". (14) Finding that the matters favouring a finding that the abuse continued after the report to the Department of 22 April 1983 merely went to a continuing or increased risk, rather than a probability of actual abuse continuing. (15) Failing, having found breach of duty on the part of the Department, and having found that reporting to the Police by the Department would have avoided further inappropriate contact between the stepfather and the Appellants, to find that consequences of contact between the stepfather and the Appellants which post-dated the report of the Department on 22 April 1983, including wrist slashing on the part of the Appellant TB, constituted damage. (16) In relation to the contingent assessment of damages, his Honour erred in treating the harm over the whole period pre- and post-April 1983 as "indivisible" but then proceeded to apportion damages. (17) His Honour erred in apportioning damages when the Respondent had not discharged the evidentiary onus on it, pursuant to Purkess v Crittenden, to adduce evidence of the extent to which damage to the Appellants was caused otherwise than as a result of the Respondent's breach of duty. 1. The respondent has filed a notice of contention in which it contends that the decision should be affirmed on the following grounds: (1) In the context of an initial finding that the respondent had a legal duty to take reasonable care in the exercise of its statutory powers, his Honour in the court below erred in finding that the common law imposed a duty on the respondent to report a matter of child abuse to the NSW Police Child Mistreatment Unit (CMU). (2) In the court below his Honour erred in finding that the respondent had breached a common law duty of care owed to the appellants when: (a) The appellants failed to prove on the balance of probabilities that the respondent did not take reasonable care to discharge a duty of care arising from or informed by s 148B(5) of the Child Welfare Act 1939 (NSW) involving the reporting of matters to police; and (b) The evidence, duly weighed in the balance on the basis of contemporary materials, objectively established facts and the apparent logic of events properly considered, did not establish that the respondent omitted to take reasonable care in the exercise of discretionary powers under s 148B(5) of the Child Welfare Act 1939 (NSW) involving the reporting of matters to police. (3) His Honour erred in finding that in respect of a common law duty owed by the respondent to the appellants, the respondent breached that duty by omitting to notify the CMU of the abuse suffered by the plaintiffs. His Honour ought to have found that: (a) The respondent took reasonable steps to report the abuse to the CMU and/or a constable of police; (b) The abuse was in fact reported to the CMU and/or a constable of police by an officer of the respondent; (c) Alternatively, the evidence does not permit of any inference or finding that the abuse was or was not reported to the CMU and/or a constable of police by an officer of the respondent; and (d) The respondent acted reasonably in the exercise of its statutory powers and discharged any duty of care owed to the appellants. 1. At the hearing of the appeal there was no challenge by the respondent to the approach his Honour indicated he would have taken to the calculation of damages had the appellants succeeded in establishing liability. In the course of oral submissions the respondent's position was explained as being that the appellants did not discharge their onus of establishing what proportion of their damage was attributable to the alleged negligence. The respondent contended that the state of the evidence was such that the apportionment would be almost nothing in any event (relying on the evidence of the psychiatrist called by it, Dr Champion). Ultimately, however, the respondent conceded in the course of oral argument that the amount of the apportionment had not been the subject of any challenge by it and did not seek to argue against the 30% apportionment the primary judge had adopted even though it maintained that, if there were to be a reassessment of the damages, then the apportionment should be less than that. Supplementary submissions as to the calculation of damages were filed by both the appellants and the respondent after the judgment was reserved and I will address in course those submissions. 2. The substance of the appellants' challenges to the primary judge's decision (grounds 1-15 of the amended notice of appeal) is as to the finding that his Honour made, on the balance of probabilities, that the step-father did not continue to abuse the appellants after notification of the abuse to the Department. The appellants argue that, taking all the evidence together, the likelihood that the abuse continued in the period after April 1983 was overwhelming and was not dependent on whether anything was expressly recorded at the time. For the reasons set out below, I agree. I do not accept the respondent's contentions that the primary judge erred in finding that there was a duty of care owed to the appellants and that there had been a breach by the Department of that duty of care by reason of its failure to notify the CMU or the police of the abuse. 3. As to what follows from those conclusions, the appellants seek an order that the judgment in the Court below be set aside and that there be instead a verdict in their favour in a sum to be determined by this Court with the respondent to pay the appellants' costs in the Court below and of the appeal. In submissions in this Court the respondent effectively accepted, as noted above, that if the appellants could show that the post-April 1983 abuse materially contributed to the harm, no challenge was made to the allowance of 30% of the total loss as their damages. The appellants in turn accepted that if this Court concluded that they were not to receive damages assessed at 100% of the value of the harm they sustained, then the 70% across the board discount was not challenged. In those circumstances, given that I do not accept that the primary judge erred in concluding that it was appropriate to apportion the damages, there is no need to remit the matter and nor there is a need for this Court to attempt to assess the correct allowance for the chance that the pre-April 1983 abuse would have led to the same harm. Nevertheless, in the supplementary submissions filed after judgment was reserved, there were competing positions taken as to how aspects of the damages claim should be dealt with. Again I consider those submissions in due course. 4. The judgment below should be set aside and there should be an award of damages in favour of each of the respective appellants as provisionally assessed by the primary judge (subject to the matters raised in the supplementary submissions). Short minutes of order should be prepared by the appellants for that purpose. In the supplementary submissions, the parties jointly requested that the question of costs be reserved until after the parties have considered the judgment of this Court. Additional background 1. It is convenient at this stage to set out the following further matters by way of background. 2. As noted in the introduction to these reasons, each of the sisters was interviewed by Ms Quinn following the initial complaint made by TB by telephone to the Department about sexual and physical abuse. In those interviews, which took place on 20 and 22 April 1983, disclosures were made by each of TB and DC of their step-father having had penile/vaginal intercourse with them and taking photographs of their genitals. TB also disclosed physical abuse and "fiddling"; her step-father touching her "down below"; and that her step-father had made her hold his penis. TB said that she had reported this to her mother. 3. Steps were taken by the Department almost immediately to place both children away from the family home. A volunteer care arrangement was made for TB to stay with the family of a friend. She then subsequently moved into her grandmother's home. A "Child at Risk Notification" was completed by Ms Quinn in relation to DC, who was then aged 12, and she was moved to a place of safety on the night of 21 April 1983. The Child at Risk Notification form noted that the step-father had spent 8 years in gaol for sexual offences and was currently on a rape charge (from which it is apparent that at an early stage of the Department's involvement there was an awareness that the step-father had a history of sexual offending). A "place of safety" order under s 136 of the Child Welfare Act was obtained from the Children's Court in relation to DC, on Ms Quinn's application, on 22 April 1983 to enable DC to be placed in care for 14 days. 4. On 28 April 1983, the mother was interviewed by Ms Quinn in the presence of another Sydney district officer. The mother admitted that the appellants had told her about the sexual abuse by their step-father and said she had told both the girls "if their father tries to do terrible things to them they should scream and kick and bite and anything they can do" (an extraordinary and inappropriate response to disclosure of such serious offending to say the least, even if explicable to some extent by the mother's own experience of childhood sexual abuse). 5. On 2 May 1983, orders were sought by Ms Quinn from the Children's Court in relation to each of TB and DC, both by then having been charged as a neglected child by reference to the definition in s 72(j) of the Child Welfare Act, namely a child or young person "who in the opinion of the court is under incompetent or improper guardianship". It appears from the respective court charge sheets that the orders made on that occasion were that the children be allowed home. 6. In her evidence at the ultimate Children's Court hearing in September 1983, Ms Quinn said that as at 2 May 1983 the step-father was still residing with the mother and DC. However, Ms Quinn deposed in the Common Law Division proceedings that as at 2 May 1983 both TB and DC had been placed in care away from the family home. She deposed that she had a clear recollection of saying to the mother at the time of the Children's Court proceedings in May 1983 that the step-father was to stay out of the family home if the children were to be allowed to return home and that the mother agreed. As later became apparent to Ms Quinn, little reliance could be placed on the mother's compliance with any such undertaking. 7. In the Common Law Division proceedings, Ms Quinn deposed that at some time in May 1983 she became aware of two incidents in which TB had attempted to slash her wrists. She deposed that she had observed in May 1983 that TB was becoming increasingly distressed and felt that other members of her family blamed her for "breaking up the family". 8. On 6 May 1983, Ms Quinn interviewed TB and DC in the presence of their maternal grandmother. Ms Quinn's record of the conversation includes TB confirming her earlier account of physical abuse by the step-father as well as referring to his touching of her breast and him taking photographs of her genitals. In her affidavit in the Common Law Division proceedings Ms Quinn deposed that no new or further incidents or threats were disclosed by the children and that she specifically asked each whether there had been "anything else" or whether "anything else" had happened and neither indicated that there were further or different incidents of abuse beyond those mentioned in previous interviews. 9. On 9 May 1983, the matter was listed in the Children's Court for mention. Release of the children into the custody of their mother was ordered. In the Common Law Division proceedings, Ms Quinn deposed that both girls remained in alternative care until the Department officers had checked that the step-father had moved out of the family home. 10. On 20 June 1983, the matter was due back before the Children's Court. Ms Quinn's evidence was that some time before that date she obtained details of the step-father's prior criminal record for sex offences. (As noted above, there was a reference to that criminal history in the April Child at Risk Notification form.) Reference to those offences was included in Ms Quinn's report prepared for the 20 June 1983 Children's Court hearing. It was noted that some of the "several sexual offences" related to molesting a male child and that the step-father had recently been charged with rape with violence of his son's 15 year old girlfriend. The report stated: It appears [the step-father] has had a continuous and long standing history of dysfunctional sexual behaviour. For this reason their [sic] is great concern for the physical and emotional safety of the children. 1. The report also included reference to the mother being a victim of sexual and physical abuse as a child and to self-injurious behaviour displayed by TB. 2. Ms Quinn's report noted that the step-father had voluntarily left the home for a few weeks following DC's placement but that he had since returned home. Ms Quinn noted the concern for the emotional and physical safety of the children while the step-father remained in the home and that, to ensure their safety and emotional well-being, it was considered necessary that the step-father reside away from the home. The Court charge sheets in relation to the neglected child charges noted an undertaking by the mother that the step-father would leave the home by the coming weekend. 3. The matter was next before the Children's Court on 19 September 1983. A report prepared for that hearing by Ms Quinn disclosed that it had been evident that the step-father, who had been residing in a house only a short distance from the family home, had been making frequent visits to the home and that those visits had been extremely distressing for TB; that TB had reported the making of threats by her step-father; and that DC had been wetting the bed and displaying attention-seeking behaviour towards her step-father, "sitting on his lap". The 19 September 1983 report noted that the mother was extremely emotionally dependent on the step-father; that she had requested the girls to agree to their step-father visiting the home and that those visits had "recently [been] almost daily". 4. The report also referred to an interview with the step-father on 15 September 1983 in which he had "freely" admitted having sexually interfered with TB and DC. In the report, Ms Quinn noted that his attitude was "considered extremely destructive for the children's emotional welfare and appears unlikely to change". Ms Quinn also noted that the mother had been made fully aware of the extent of the step-father's abuse of her daughters and details of his previous sexual offences. When Ms Quinn later gave a statement to the police in January 2005, she said that the step-father had been winking at her and the female child protection officer who was also present during the interview; conduct that she said she regarded (presumably at the time of the interview) as extremely inappropriate since they were discussing the sexual assault of his step-children. 5. In the report, Ms Quinn reiterated the concern as to the step-father's longstanding history of inappropriate sexual behaviour and sexual offences; his lack of amenability to change through therapy; his inappropriate attitude and lack of acceptance of responsibility for his behaviour; and her concern for the emotional and physical safety of the children should he return to reside in the home or be alone with them. The report stated: It was considered vital that [TB] and [DC] be protected from the possibility of further abuse and from living in fear of abuse. As [the step-father] seems unlikely to change this can only be ensured by the girls not residing with him, not being alone with him and only having contact if they requested it. To ensure that pressure to accept [the step-father's] visits cannot be exerted it would be necessary for contact to occur away from the family home. (my emphasis) 1. The report recommended that TB and DC be released to the care of their mother under s 82(2) of the Child Welfare Act until 18 and 16 years of age respectively, with certain conditions. 2. At the hearing on 19 September 1983, evidence was given both by the mother and Ms Quinn. The mother referred in her evidence to DC sitting on the step-father's lap during visits to the home in terms that suggested she considered the behaviour to be innocuous and normal family behaviour (her description of this being to the effect that they were just "muck[ing] around"). 3. There was a factual dispute at the hearing before the primary judge as to whether the appellants were present at the 19 September 1983 hearing. This was of relevance only insofar as it went to the reliability of the appellants' evidence. Nothing turns on it for present purposes. Nevertheless, for completeness I note that the transcript of oral submissions at the separate hearings for each of TB and DC, at which the children had separate legal representation, suggests that they were in attendance. At the hearing in relation to TB, the magistrate made a statement to the effect that he intended to call for psychiatric assessments and that he had spoken to TB and she had "no objection to [going] home". More telling is the fact that the children's representative asked that the girls be excused when the matter was back before the Court (the matter being adjourned to 24 October 1983 for decision); and the transcript of the DC hearing on 19 September 1983 records that the prosecutor requested that the children leave the Court. (The transcript also makes reference to the committal proceedings in relation to the alleged sexual assault by the step-father of his son's girlfriend being listed for 20 October 1983.) 4. The magistrate found that a prima facie case of improper guardianship had been made out and adjourned the matter to 24 October 1983 for decision. Both children were allowed home on condition that supervision of the district officer was accepted and the step-father was not to approach the family home. 5. Prior to the matter coming back before the Children's Court on 24 October 1983, an updated report (dated 21 October 1983) was prepared by Ms Quinn. In that report the Department's recommendations remained unchanged. They were consistent with a subsequent report dated 24 October 1983 prepared by a departmental psychologist, Mr Skead. Mr Skead considered that the future placement of the children with their mother should be conditional upon the step-father's separation from the mother and him not residing with the family. Later, in a statement dated 25 November 2004 prepared for the police in the context of the criminal proceedings brought against the step-father for the abuse occasioned on the appellants, Mr Skead expressed the professional opinion, based on his 1983 interviews with TB and DC, that their allegations of abuse were truthful and that a number of their behaviours were indicative of sexual interference. 6. On 24 October 1983 the magistrate formally found that the complaints were established as to each of the appellants (whether as to improper guardianship or neglect was not made clear on the charge sheets). The matter was then adjourned to 7 November 1983. On 23 October 1983, the day before the magistrate made the formal finding, TB had left home to stay with friends. She returned home of her own accord on 27 October 1983. 7. On 7 November 1983, the magistrate made orders for the release of the children to the care of their mother until the ages of 18 and 16 years, respectively, on conditions including that the girls not reside with the step-father; that there be contact between the girls and the step-father only if the girls requested contact; that any contact between them and the step-father occur away from the family home; and that the mother accept the supervision of the district officer. Those conditions reflected the recommendations that Mr Skead and Ms Quinn had jointly made. 8. Subsequently, in February 1984, TB discovered indecent photographs of several women in her step-father's belongings. Also in February 1984, the step-father was arrested and charged with the rape of a 16 year old girl at a club. Later, on 12 May 1984, the appellants' brother discovered a brown paper parcel containing handcuffs as well as a number of pornographic photos of TB under the seat of the step-father's motorbike. The mother identified TB in the photographs and estimated that she was aged 12 years in those photographs. 9. According to a subsequent report dated 22 June 1984 by Ms Quinn, following the February 1984 arrest the step-father was held in custody for "several weeks" before being released. Also according to that report: the mother had continued regular contact with the step-father and he had "recently" moved back into the home; TB was living elsewhere (she had left home in March 1984); and DC, who had been placed at her request at Wesley Dalmar (an institution which provides foster care homes for children) and had then gone to a refuge, was refusing to live with any members of her family or extended family. Ms Quinn noted in that report that DC was refusing to live with her mother because her step-father was coming there "all the time". DC returned to her mother's care on 9 July 1984, at which time, according to a subsequent report by Ms Quinn, the step-father was no longer in the home. The final step in the Children's Court proceedings was that on 25 July 1984, DC was brought back before the Court to be "admonished and discharged" (having run away from home) in accordance with the Department's recommendation to that effect. 10. In the Common Law Division proceedings, reports were tendered from expert psychiatrists (Dr Diamond and Dr Champion). In the report of their joint conference, both experts agreed that the cause of the illnesses in the case of both the appellants was the childhood sexual abuse but Dr Diamond went on to say that "[t]he long term nature of the childhood sexual abuse and the inability for the plaintiffs to be protected from it or to escape from it, constitute significant causes of the disease or impairment in each case". Dr Diamond expressed the opinion that the experience for both appellants between April 1984 and about 1985 was that they could not be protected "and they had to endure further abuse at the hands of the perpetrator". He described the experience of helplessness and defencelessness of the appellants as vulnerable children and said that: The extent to which the recognised psychiatric condition was significantly affected by the fact that there was no notification to police or prosecution of the perpetrator of the sexual abuse, was and remains a significant cause of the psychiatric condition. …Part of the cumulative nature of the trauma relates to the feeling of vulnerability and ultimately helplessness. The helplessness experienced by both plaintiffs as children was profound. Not only was their mother incapable and unwilling to protect them from the perpetrator but the experience was re-enacted when the authorities failed to do so as well. Proceedings 1. As pleaded (DC's second further amended statement of claim filed 21 March 2013 and TB's second further amended statement of claim filed the same date), what was alleged by each of the appellants was that in the "Pre-YACS Period" both she and her sister were frequently subjected to and apprehended physical assault and sexual assault by the step-father (see [9] and [10] of the respective pleadings). 2. The Pre-YACS Period was defined in both pleadings as being between about late 1974/early 1975 and 20 April 1983 ([7]). Particulars were provided (at [9] of the respective pleadings) of the alleged physical and sexual assaults and those were there defined as the "Pre-YACS Physical Assaults" and the "Pre-YACS Sexual Assaults". Although the physical assaults were not particularised in identical terms (DC's including the step-father holding her head and moving it forward and backward during forced fellatio; TB's including on one occasion holding his hand over her mouth until she could not breathe and actual physical violence during the so-called Tennis Court Incident), the sexual assaults were particularised in substantially identical terms as follows: (a) Inappropriate touching of the Plaintiff's genitals by [the step-father]. (b) Oral and vaginal, digital and penile penetration by [the step-father]. (c) Forcing the Plaintiff to perform fellatio upon [the step-father]. (d) Forcing the Plaintiff to pose [in the case of DC] with her vagina held open so that [the step-father] could take photos showing the Plaintiff's genitals [and in the case of TB] naked with her legs spread so that [the step-father] could take photos showing the Plaintiff's genitals and [his] penis. 1. The respective pleadings allege (at [40]) that during the "Post-YACS Access" (defined as the period from 20 April 1983, when it is alleged each appellant was required by her mother to allow the step-father to visit the family home and to visit the step-father where he was otherwise residing), the step-father: continued sexually to assault both the particular appellant (defined as "the Post-YACS Abuse") and that appellant's sister (defined as "the Post-YACS Abuse on the Plaintiff's Sister") (these forms of abuse being jointly defined as "the Post-YACS Abuse on the 2 Sisters"). No particularisation of the continued sexual assaults was there provided. The appellants' case as explained on the appeal, as I understand it, is not that any further penile/vaginal penetration occurred after April 1983, nor that any further indecent or pornographic photographs were taken; but rather, that abuse at least in the form of "groping" continued to occur in the Post-YACS Period. (Both TB and DC in their evidentiary statements in the Common Law Division proceedings stated that the on-going sexual abuse included digital penetration of the vagina, forced fellatio and inappropriate touching and kissing.) 2. Returning to the pleaded claims, at [41] of the respective pleadings it is alleged that: Between April 1983 and some time in 1984, the Plaintiff and the Plaintiff's Sister each complained to the Second Defendant [Ms Quinn] about the Post-YACS Access and the Post-YACS Abuse on the 2 Sisters [that in turn being defined as "the Complaints re the Post-YACS Abuse"]. 1. In the case of both appellants, it is alleged that they had no further contact with the step-father, and the Post-YACS Abuse ceased, subsequent to their leaving home in about July 1984 in the case of DC and March 1984 in the case of TB (see [45] of the respective pleadings). 2. The respective pleadings then relevantly allege (at [50]) that between 20 April 1983 and the reports made by the respective appellants to the police (on 26 August 2001 and 30 August 2001 respectively) no report was made by the Department to the police of the Pre-YACS Abuse, the Post-YACS Abuse or the step-father's admissions (defined at [31] as the admissions made by the step-father during the course of his interview with Ms Quinn on 15 September 1983 that he had sexually interfered with the plaintiffs). 3. Each of the appellants alleged (at [52]) that the Department owed her a duty of care (between 20 April 1983 and the 2001 report to the police), particularised as being to take all reasonable steps to ensure her welfare and to protect her from any further physical, emotional or sexual abuse by the step-father. At [54] the allegation as to the Department's breach of that duty of care is made. Particulars of the alleged breach of the duty of care are set out at [54(a)-(j)] of the respective pleadings. They include: (a) a failure to report to the police a reasonable suspicion of and/or belief in felonious conduct by the step-father; (b) failure to report to the police the Pre-YACS Abuse, Post-YACS Abuse or step-father's admissions; (i) failure to ascertain whether the step-father was continuing to abuse them; and (j) failure to act on a recommendation made by the magistrate on 19 September 1983 during the listing of the Children's Court proceedings urging the parties to report any threats by the step-father and TB to the police. (The last of those particulars relates to what the magistrate was recorded as having said during the hearing of TB's case on 19 September 1983, namely that "I would urge on you that any threat made to [TB] be bought [sic] to the attention of the authorities".) 4. At [56] of their respective pleadings, the appellants alleged that the State was vicariously liable for the acts and conduct of both Ms Quinn and the Department's officers and employees. The respondent ([56] of its respective defences) accepted that it was vicariously liable in respect of any civil liability incurred by any officer or employee of the Department in doing any act or engaging in any conduct in the course of, and purporting to be done for the purpose of, carrying out the provisions of the Child Welfare Act in relation to the respective appellants. 5. In this appeal, the respondent accepts that no issue has been taken or raised by any party about the amenability of the Crown to suit and that, although at trial it sought to rely upon certain provisions of Pt 5 the Civil Liability Act (ss 43A, 44, 46), it has otherwise not sought to invoke any principle of immunity in relation to acts or omissions of the Director appointed under the Child Welfare Act (beyond the application of s 158 of that Act). 6. There was no finding by the primary judge of liability on the part of Ms Quinn in respect of the alleged breach of duty on her part. Insofar as the primary judge found that the Department breached its duty of care (by omitting to notify the Child Mistreatment Unit of the serious sexual physical and sexual abuse suffered by TB and DC, as required by the inter-departmental guidelines to which both agencies were party) (see [8(c)]), his Honour's finding must be understood as relating to a failure by the relevant superior officer or employee of the Department to whom Ms Quinn reported the abuse and who had the responsibility to implement the guidelines (see [8(d)]). Grounds 1-15 of the grounds of appeal – finding that sexual abuse did not continue after notification to Department of abuse in April 1983 1. I propose to deal first with the principal complaint by the appellants, namely the finding by the primary judge as to whether the sexual abuse continued after the April 1983 notification of abuse to the Department, before turning to the issues raised by the respondent's notice of contention. Relevant findings 1. The primary judge addressed this question from [121]-[167] of his reasons. His Honour had earlier noted (at [117]) that in the circumstances of the case, for ethical reasons senior counsel for the respondent did not put to either appellant as a positive proposition that the abuse did not recur after April 1983. Nor did the respondent submit that to the primary judge. Rather, the respondent argued that the court could not be satisfied on the balance of probabilities that such abuse had continued. The respondent did, however, submit that the primary judge should take into account that no complaints of any continuing abuse had been made by either TB or DC to Ms Quinn. 2. As to TB, his Honour noted (at [121]) the content of her evidentiary statement as to the continuing sexual assaults during the period in question (April 1983 to March 1984) and that in that statement TB said she had informed Ms Quinn at various meetings that the step-father "was continuing to come around and that nothing had changed" and that Ms Quinn had not specifically asked her if the step-father was continuing sexually to abuse her and that "[n]either did I explicitly volunteer that fact to her". His Honour accepted that in both her evidentiary statement and in examination in chief TB had said that she had told Ms Quinn on more than one occasion that "nothing's changed, he's still doing it" and that he was coming to the house ([122]). 3. His Honour accepted that the lack of significant detail in this account might be understandable given the lapse of time and the fact that some victims may cope by suppressing memories ([123]). In that context, his Honour reiterated what he had earlier (at [11]) said, namely that this was a case where the accuracy of the details was crucial (there referring to what had been said by McHugh J in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 534, namely that in a case where accuracy of recollection was vital, discrepancies and inconsistencies in a witness' account might make it impossible to accept that evidence no matter how honest the witness appeared to be). 4. At [125], his Honour observed that there was a lack, in "all the documents compiled over all the years", of any explicit record of any abuse after April 1983, though noting that the records were made by people other than TB and that not all of them were necessarily internally consistent. In particular, his Honour referred to the reports prepared by the Department for the Children's Court, which recorded concern for the safety of the children but did not record any complaint of ongoing physical or sexual abuse ([126]-[127]); to the comments made by the magistrate at the hearing on 19 September 1983 ([128]); to reports made by Mr Skead and by a psychiatrist Dr Blow, in 1983 ([129]-[130]); and to the statements given by TB to the police ([131]-[132]), commenting that the absence of any charge relating to conduct after the report to the Department was "not without significance". The primary judge also referred to various medical reports that were in evidence ([134]-[137]). 5. At [140], his Honour referred to a number of matters that he considered favoured a finding that the abuse had continued after the April 1983 notification, namely: … the stepfather's abhorrent behaviour; that he committed a sexual assault in January 1983 for which he was later convicted; further allegations of sexual assault in early 1984, which were dropped; the mother's dependency upon the stepfather and her unwillingness to let go of him, despite her knowledge that he had previously abused her daughters; the mother's tendency not to comply with the conditions of orders made by the Children's Court in the interim period between April 1983 and October 1983, in particular, allowing visits from the stepfather to the family home; the stepfather's bad criminal record for sexual offences; and the District Officer's legitimate concern that TB (and DC) continued to be at risk from him. However, his Honour went on to say that those factors merely went to a continuing or increased risk, which his Honour said was insufficient to satisfy the "but for" test ([141]). 1. His Honour's ultimate conclusion, that TB had failed to prove on the balance of probabilities that physical and sexual abuse had continued, was expressly based on the lack of any contemporaneous documentation of significant abuse and the subsequent statements by TB which had "failed to mention ongoing abuse" ([142]). His Honour then concluded that TB had not proved that the Department's negligence was a necessary condition of the "undoubted harm" suffered by her ([143]). 2. His Honour also went on to record his view that, having regard to the care Ms Quinn took in compiling her reports to the Children's Court, had any complaint of post-notification abuse been made by TB they would have been recorded in those reports and reported to the Children's Court. His Honour was not satisfied on the balance of probabilities that TB had complained of ongoing abuse to Ms Quinn ([144]). 3. As to DC, the primary judge again recounted the matters contained in her evidentiary statement as to the ongoing sexual abuse (forced fellatio, digital penetration and indecent assault) and her evidence in chief and in cross-examination on that issue ([145]-[148]); and reviewed the extant contemporaneous material, medical reports and statements made by DC to the police ([149]-[162]). 4. Commenting on a report by Dr Diamond, who had been retained in 2008 to assess DC's awareness of the psychological import of the assaults (in connection with her application for an extension of the relevant limitation period), the primary judge noted (at [163]) that Dr Diamond had received a detailed history of the sexual abuse. The primary judge referred to the fact that Dr Diamond reported DC as having described "a chaotic, distressing and terrible time from about the age of 13", after the notification to the Department, and that Dr Diamond said that when DC began to talk about this in the interview she demonstrated "objective signs of disassociation during the interview". The primary judge went on to say that there was "no history recorded at all of any further sexual abuse by her stepfather after the Department was notified". 5. Pausing there, it should be noted that in Dr Diamond's subsequent 1 December 2010 report, he made reference to a 2006 report by Dr Szyndler (DC's treating psychologist from about 2005), which Dr Diamond said provided additional information about the history of childhood sexual abuse by the step-father that was consistent with the history he had obtained when he examined DC in 2008. In Dr Szyndler's report, she recounted that DC had described how (at a time after the Department had been notified of the abuse) her mother took the children to visit the step-father and insisted "that they should sit on his lap and kiss him goodnight" and that DC recalled that "he would then grope her". The primary judge did not refer to this aspect of Dr Szyndler's report. It was therefore not correct for the primary judge to say that there was no history recorded "at all" of any further sexual abuse by the step-father in the period after notification. Rather, there was evidence of a report made by DC to her psychologist (at a time before the commencement of the proceedings against the State) to the step-father "groping" her and it is relevant to note that the context in which the groping was said to have occurred (the sisters being made to sit on the step-father's lap and kiss him goodnight) was something supported both by the evidence that the mother gave at the 19 September 1983 hearing and by the report from Ms Quinn around that time to the Children's Court that DC had been sitting on her step-father's lap (albeit that she attributed this to "attention-seeking behaviour" on DC's part). 6. The primary judge reached a similar conclusion on this issue in relation to DC as he had in relation to TB, saying (at [163]): I accept that the mother's dependence on the stepfather; the stepfather's bad record and history of previous abuse; DC's vulnerability as a child sex abuse victim; and the concerns of the District Officer, were all factors which demonstrate that DC was at risk of further abuse by the stepfather whilst in her mother's care, after the Department was notified in April 1983. However, increased risk is insufficient of itself to prove causation. 1. Having expressed the view that DC's evidence about an attendance at Blacktown Police Station was a reconstruction (a matter again going to the reliability of her recollection), his Honour concluded, as he had with TB, that the absence of any record of ongoing abuse in any contemporaneous documents "and, indeed, the absence of a history of it in the accounts given to police and Dr Diamond between 2001 and 2008" made "comfortable acceptance" of DC's evidence about the post-notification abuse difficult. He did not find DC's account of the post-notification abuse, or her evidence about complaining to Ms Quinn, persuasive. His Honour thus reached the same conclusions as to the continuation of the sexual abuse and post-notification complaints in DC's case as he did in relation to TB ([165]-[166]). Appellants' submissions 1. The appellants place weight on the step-father's extensive history of sexual offences; his apparent lack of inhibition in the commission of sexual offences in the presence of the mother (referring to TB's evidence as to the groping of her breast while the family were on holiday in the car together and her statement to that effect to Ms Quinn); the fact that he committed various sexual offences against them (prior to the report to the Department) while he was on bail in relation to existing criminal charges; and the severity and intimidatory nature of the step-father's violence towards them (referring to the so-called "Tennis Court Incident" in respect of TB); the step-father holding his hand over TB's mouth until she could not breathe; his verbal threats to TB, which were reported to Ms Quinn, and to DC; and a throat slitting gesture made to the appellants at his 2005 criminal trial in open court. (To that must be added the remarkably brazen attitude the step-father was recorded as having adopted when interviewed by Ms Quinn in September 1983 and when he admitted to the mother in October 1983 that he had raped his son's girlfriend.) 2. Emphasis is placed on the level of concern expressed at the time of the Children's Court proceedings as to the step-father's nature and propensities (referring to Ms Quinn's reports of 20 June 1983, 19 September 1983 and 21 October 1983; as well as the comments made by the magistrate in the Children's Court on 19 September 1983) and to the evidence given by Ms Quinn in the Common Law Division proceedings both as to the concern she had at the relevant time about the appellants spending time with the step-father "in any access and opportunity situation at all" and as to the way in which (in hindsight and with the benefit of her additional professional experience) she would now have perceived the risk of ongoing sexual and physical abuse. As to the last, the appellants point to Ms Quinn's evidence that: her concern was that the step-father would in all probability continue to abuse the appellants sexually and physically, and that she perceived him to be a serious risk to safety; she now considered DC sitting on her step-father's lap when he visited (a matter to which she referred in her 19 September 1983 report) to be very concerning (although it is relevant to note her qualification that she could not remember what she thought of that behaviour at the time she became aware of it); the step-father having continued opportunity to access the girls put them at very serious physical and sexual risk; and that, as a professional in 2014, she was very concerned about the safety and well-being, physically and emotionally, from sexual abuse. Ms Quinn, rating the risk as at 2014, accepted that TB (and one would assume also DC) had been at grave risk. 3. The appellants note that the contemporaneous documents make clear the lack of capacity of the mother to protect them from the step-father (referring to the mother's preparedness to continue in a relationship with the step-father notwithstanding his lengthy history of sexual abuse of the appellants; the mother's own history of sexual abuse in her childhood, which officers of the Department recognised as involving unresolved issues; the mother's failure to respond appropriately to the appellants' complaints to her of the abuse (so, for example, the advice she gave to them when she first became aware of the abuse) and her failure to recognise, and attempt to downplay, the severity of the abuse; and her submission to the Children's Court magistrate that the step-father should be permitted to return home). Reference is also made to the mother's acquiescence in breach of the conditions on which the children were allowed to return to the family home during the period of the Children's Court proceedings. Ms Quinn's 19 September 1983 report noted that the step-father's visits had been frequent and recently had been almost daily. Ms Quinn agreed in cross-examination that the mother could not be trusted to protect the appellants and considered that the mother not following the conditions of the Children's Court represented a serious problem. 4. The appellants point to the fact that the agreed summary of facts tendered in the 2006 criminal proceedings against the step-father (after he had pleaded guilty to all the charges) included indecent assault while TB was sitting on his lap - conduct of which DC complained in her evidence in the proceedings before the primary judge as having occurred in the period after notification of the abuse to the Department, and part of which (namely, sitting on his lap) was confirmed by the mother's earlier evidence in the Children's Court. 5. The appellants emphasise that the assessment of the step-father as unlikely to change makes the frequent access in the period after notification to the Department something strongly suggestive of ongoing abuse. The appellants point to the following as indicia of ongoing abuse: DC's bed-wetting at 12 years of age and dramatic change of attitude; TB's two episodes of wrist-slashing and other self-harm; TB running away from home in October 1983 and asking an emergency service to have her charged as uncontrollable, so she could be placed in a home, despite having earlier been desperate to get back in the family home; and TB being terrified of her step-father. They note that Ms Quinn's opinion, in the course of cross-examination, was that TB's self-injurious behaviour was consistent with current abuse (even if also with past abuse). 6. As to the primary judge's inability to accept the evidence as to the making of complaints of ongoing abuse to Ms Quinn, the appellants emphasise that Ms Quinn did not positively assert that the appellants did not complain to her of continuing to be abused or did not speak of ongoing abuse in her presence; rather, her evidence was that she was unable to say one way or another whether she was told or was aware of continuing abuse and had no recollection of the appellants complaining to her of ongoing abuse. The appellants argue that Ms Quinn's statement that, had she asked if abuse were continuing and received a negative answer, that would also have been reported to the Children's Court, inferentially amounts to a concession that Ms Quinn never asked whether there was any ongoing abuse (since there was no such report to the Children's Court). They complain that his Honour made no finding as to whether, as was their evidence, they were never asked by Ms Quinn whether abuse was continuing. 7. As to the weight placed by the primary judge on the fact that the contemporaneous documents did not record complaints of ongoing abuse, the appellants point toward a number of reasons why reticence to talk further about their experiences would be understandable. Among other things, the appellants point in this regard to the psychiatric evidence as to the profound psychological impact the abuse had on each of the appellants and that each was recognised as being unable to deal properly with what had occurred to her until the time of disclosure to the police. They also point to the psychiatric evidence as to the further impact on each appellant of the trial of the step-father in 2005. 8. The appellants also submit that the absence of reference to post-notification abuse in the police statements and Court documents relating to the step-father's prosecution is explicable having regard to the fact that the Children's Court documents were obtained when the appellants decided to notify the police and can be assumed to have formed the basis of the police interviews in 2001/2002, culminating in the statements which became the subject matter of the charges laid by the police. Hence it is submitted that the primary judge over-emphasised the absence of reference to post-notification abuse in those documents. Respondent's submissions 1. The respondent argues that the appellants have not established any material error in the process of fact-finding undertaken by the primary judge. The respondent points to the fact that the primary judge took into account the various factors relied upon by the appellants, such as: the history of sexual offences by the step-father (raised by grounds 1, 6, 7, 14) ([140]); the mother's lack of capacity to protect the appellants from the step-father; the reports of Ms Quinn as to his frequent visits to the home and her belief that the step-father was unlikely to change (grounds 3, 5, 8, 9,12,13); the behavioural changes displayed by the appellants subsequent to the notification to the Department (grounds 11 and 15); and the matters in Dr Diamond's report. 2. The respondent maintains that there was no logical explanation for the failure of the appellants, as adults, to report to the police in 2001/2002 any ongoing sexual abuse that had occurred after notification of the abuse to the Department. The respondent also points to the instructions given by the appellants' solicitors to Dr Diamond when instructing him on 20 December 2007 to prepare reports in relation to TB and DC addressing issues required for the purposes of the application to extend time for the bringing of the proceedings against the State. Those letters include a summary of relevant documentation and instructions from the respective appellants and ask Dr Diamond to assume, among other things, that the abuse continued "until about April 1983". 3. As to whether his Honour erred in making findings in terms of abuse of a particular type or types, rather than directing himself to the question whether abuse of any kind occurred after the Department was first notified in April 1983 (ground 10), the respondent submits that his Honour properly confined his enquiry to the type of abuse pleaded as having given rise to the appellants' recognised psychiatric illness (namely, post-traumatic stress disorder). It submits that the primary judge took into account the relevant reports noting the appellants' behavioural changes and the evidence of Dr Diamond as to those matters. The respondent argues that the complex psychological and other factors affecting both TB and DC over a lengthy period of time were not demonstrated to be the result of any ongoing, post-notification assault on them by the step-father, noting Ms Quinn's evidence that self-harming behaviour could occur long after abuse had stopped. Determination 1. The question whether the appellants had been abused by the step-father after the notification made to the Department was a question of fact that the appellants were required to establish on the balance of probabilities in order to prove the case that they had pleaded, damage proved on the balance of probabilities being the gist of the cause of action in negligence. 2. As can be seen from the summary of the primary judge's findings on this issue, his Honour's reasons for finding unpersuasive the evidence of TB and DC as to the alleged ongoing sexual abuse were based largely, if not wholly, on the lack of a report of such abuse in the contemporaneous documentation and subsequent medical or other documentation. While the respondent points to the primary judge's statement (at [164]) that he did not find persuasive DC's account of the post-notification abuse or her evidence about complaining about it to Ms Quinn, the only aspect of DC's evidence that the primary judge found to be a reconstruction and not credible was her evidence as to an attendance at Blacktown Police Station (that his Honour addressed at [94]-[101]). This is not a case where the relevant finding (as to whether the abuse had continued post-notification) was based on the credibility of the respective witnesses (whom the primary judge had the obvious advantage of seeing and hearing given their evidence). Hence the limitations on appellate review of the fact-finding process explained in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 do not preclude an assessment by this Court of the inferences to be drawn from the documentation on which his Honour relied so heavily in concluding that the sexual abuse had not continued post-notification. 3. The matters identified by the primary judge at [140] establish in my opinion a very powerful case for the proposition that, on the balance of probabilities, the appellants continued to be sexually abused after April 1983. The significance of those matters goes far beyond the continuation, or increase, of a "risk" of sexual abuse. They strongly point to the probability that, if given the opportunity - as the step-father clearly was during the post-notification period - to have access to the appellants, the step-father would have continued to abuse the appellants. 4. Those matters were not in dispute. It is not only the contemporaneous documentation that provides a reliable indication as to whether the sexual abuse continued. If the established facts suggest that the abuse continued, then they, too, must be given very considerable weight. One of those established facts is that the complaints made by the appellants in 1983 to the Department were truthful and basically accurate, as reflected in the ultimate plea of guilty in the subsequent criminal proceedings. 5. There is also evidence that DC described to Dr Szyndler, before the institution of legal proceedings against the State, that the mother would take the appellants to visit the step-father and insist that the children sit on his lap and kiss him goodnight; and that he would then "grope her". True it is, that what DC meant by the word "grope" was not made specific in Dr Szyndler's report. However, the step-father himself admitted having engaged in conduct that included inappropriate touching of TB's vagina while she was sitting on his lap. Both appellants had complained of digital penetration of the vagina in their evidentiary statements, though DC's cross-examination is not consistent with a complaint of digital penetration. The opportunity for the step-father to have continued to engage in such conduct during the so-called Post-YACS Period was clearly established and his propensity to do so cannot be doubted. The reference to groping in Dr Szyndler's report, understood as it must be in the context of the previous history of sexual offences, is likely to have been a reference to continued abuse of the kind that the step-father had admitted had previously occurred. 6. There is nothing in the report of the 15 September 1983 interview that Ms Quinn conducted with the step-father to suggest that his admission that he had sexually abused the appellants was limited to any particular time or that it related only to events occurring before April 1983. I do not place particular weight on this (not least because the potential ambit of the admission was not addressed in argument during the appeal), but it does point to the need for care in relying on contemporaneous documents that are not (and were conceded not to be) complete. Pausing there, I note that the lack of records seems in part to have been explicable by reference to the fact that a large volume of departmental files had been produced to a Royal Commission held in the intervening period and those files appear not to have been returned intact. 7. In Ms Quinn's later statements to the police (in 2005), she refers to her then practice of recording in her handwritten notes the exact words that a person said. The Court was not taken to any handwritten note of the interview that took place on 15 September 1983 and I have been unable to locate any in the appeal books. That is not surprising as the case file has been mislaid and any handwritten notes would presumably have been placed in the case file. While the first police statement might suggest that those handwritten notes may have been an exhibit to that statement, the description of the exhibit as "a copy of those notes for the 19th of September, 1983 for presentation at the Cobham Children's Court" is more likely to refer to the typewritten report produced to the Children's Court than handwritten notes from which it was prepared. The second police statement refers to the exhibit as a three page document dated 19 September 1983. Therefore, I would infer that the only document in evidence was the typed report. 8. DC, in cross-examination, denied that the extent of the contact with the step-father post-April 1983 was limited to the step-father, in the presence of her mother, putting her on his lap and cuddling her. She was cross-examined about what she had told Dr Szyndler and what was said in the application made to the Victims Compensation Tribunal. She rejected the suggestion that she had not made any complaints about sexual assaults post-dating April 1983. Her evidence was that she did tell Dr Szyndler that the step-father required her to perform oral sex after she returned to the family home, though no such complaint is recorded in Dr Szyndler's report. The primary judge did not find DC's account of the post notification abuse, or her evidence about complaining to Ms Quinn, persuasive ([165]), observing that the absence of a record of ongoing abuse in the contemporary document or of a history of it in the accounts given to police and Dr Diamond made comfortable acceptance of the post-notification abuse difficult. 9. The respondent maintains that the first specific claim of post-notification sexual abuse is made in the appellants' statements in the Common Law Division proceedings. However, the witness statement given by DC to the police in August 2001 includes that, at the time of the Department's interviews, she was told to use boy and girl dolls "to show what [the step-father] was doing [i.e., not had done] to me". There is no way of knowing what significance can safely be placed on the particular tense used in a statement that I would infer was prepared by someone other than the appellant(s). This highlights the need to take care in drawing inferences from documents prepared by others. 10. Insofar as the respondent places weight on the instructions given by the appellants' solicitors to Dr Diamond, it is certainly the case that, on their face, the letters suggest that the lawyers' instructions were that the sexual abuse had ceased in "about" April 1983. However, if that were the case then there would have been no point in seeking an extension of time for the appellants to bring proceedings against the State (since on any view of the facts the Department only became involved in April 1983). In any event it does not seem that the appellants were cross-examined as to whether they had given instructions to their lawyers that the abuse had ended in April 1983. They therefore did not have an opportunity to address the inference the respondent seeks to draw from that letter. 11. Insofar as the respondent emphasises the primary judge's finding that, had complaints been made to Ms Quinn of ongoing abuse, she would have made a record of them, the cross-examination of Ms Quinn on this issue was somewhat equivocal as to precisely what she had asked the appellants and how it would have been recorded. Ms Quinn was unable, in the absence of the case notes, to say whether or not she made any enquiry as to whether or not the abuse was continuing. She seems to have seen the purpose of the court report as providing information as to the "threshold question" about "whether things had got to that point where action is required", which point she considered had already been reached. Particularly in the absence of all the relevant case notes and contemporaneous documentation, the absence of reference to complaints as to continued abuse in what material is available does not make less probable a continuation of the abuse whenever the step-father had the opportunity so to do. 12. It is not necessary to explore the reasons proffered by the appellants in their submissions as to why they may have been hesitant to talk further about abuse occurring after the notification had occurred. It is sufficient to note that the contemporaneous records were not complete; that the appellants were aged around 15 and 12 when the disclosure of abuse was first made to the Department and were in what must have been a highly distressing and stressful situation; and that the records from that period were prepared by others and were not necessarily either precise or comprehensive. Similarly, it is not helpful to speculate on the reason for the fact that the charges laid against the step-father were limited to the period prior to April 1983 and hence as to the absence of reference to post-April 1983 abuse in the criminal proceedings brought against the step-father. 13. With respect to the primary judge, the overwhelming inference from the material before the Court is that the step-father, who was clearly a shameless sexual predator, continued to avail himself of the obvious opportunity he had sexually to abuse the appellants during the period after notification to the Department. The appellants should have been found to have established on the balance of probabilities that the sexual abuse continued in the post-notification period. Hence the finding that the appellants failed to establish continuing sexual abuse after April 1983 should be overturned. 14. This makes it unnecessary to consider the appellants' further argument (referring to Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666 at 668; Petchell v Du Pradal [2015] QCA 132 [39]) to the effect that the acceptance by the Department (noted by the primary judge at [119]) that requiring the appellants to kiss the step-father or to sit on his lap was a "kind of abuse" that the appellants might find abhorrent should itself have led to a verdict for them irrespective of whether there was any ongoing abuse of the type previously inflicted; on the basis that they did establish (through Dr Diamond's evidence) that the helplessness they experienced after notification to the Department had itself caused them to suffer trauma. Notice of Contention 1. Before addressing the remaining grounds of appeal, which go to the question of damages, it is convenient to consider the challenges made by the respondent to the findings as to the existence, and breach, of a duty of care owed by it. Relevant findings 1. The primary judge noted (at [14]) that when the matter had earlier been before this Court (DC v New South Wales [2010] NSWCA 15) the Department seemed to accept that it owed to each of the appellants a duty of care but had disputed that it extended to requiring it to report suspected sexual abuse to the police (there referring to the acknowledgment recorded as having been made by counsel for the respondents in Sackville AJA's reasons for judgment at [48]-[49]). The respondent does not demur from this proposition. 2. His Honour found (at [27]) that it was appropriate in the circumstances that there be imputed to the Department a legal duty of reasonable care in the exercise of the statutory power that was conferred on the Director (defined in s 4 of the Child Welfare Act as the permanent head of the Department or a person acting as head of the Department) by s 148B(5)(b) of the Child Welfare Act ([15]; [19]; [31]). 3. In reaching that conclusion, his Honour noted that it was reasonably foreseeable, at the time of the initial notification of the abuse, that further harm would ensue if the Department did not take action to protect TB's welfare ([19]), so as to engage s 148B of the Act; as was similarly the case in relation to DC ([21]). His Honour considered that the powers engaged on the facts of the case were, first, the power promptly to cause an investigation to be made into the matters notified and, secondly, if satisfied as to the assault/neglect, to take such action as the Department believed appropriate, which might include reporting the matter to the police ([20]). There is no dispute as to those findings. 4. The primary judge considered that the terms of the statutory powers and the purpose for which they were conferred created a special relationship between the Department and children who the Director was satisfied, after investigation, had been assaulted, neglected or ill-treated ([24]). At [26], his Honour listed those matters that he considered favoured the imputation of a common law duty of care. Those included the foreseeability of harm; the nature of harm (the personal safety of a child); and that any failure to exercise the Department's powers was likely to expose the appellants to a high degree of risk of ongoing harm at the hands of the step-father. 5. The relevant risk of harm was identified by the primary judge at [35], for the purposes of s 5B of the Civil Liability Act and s 43A of that Act, as being the risk of further injury and mental harm being suffered by each of the appellants by ongoing sexual and physical abuse at the hands of the step-father. His Honour considered that there was a foreseeable risk of ongoing physical and sexual abuse and that the risk was not insignificant ([37]-[38]). His Honour next addressed two matters: whether a reasonable person in the Department's position would have taken the suggested precaution (that being to report the matter to the police as the appellants contended it failed to do) and whether, for the purposes of s 43A, a failure to notify the police was in the circumstances so unreasonable that no government authority having the powers conferred by s 148B(5) could properly consider that omission to be a reasonable exercise of its power. His Honour concluded that both questions should be answered in the appellants' favour. 6. The primary judge did not expressly address the content or scope of the duty of care; rather he addressed it implicitly in considering whether there was a breach by reason of the failure to report the matter to the police. 7. From [47], his Honour considered the inter-departmental guidelines in relation to child abuse (the relevant departments being the Department, the NSW Police Service and the Health Department). His Honour considered that those guidelines, which he inferred had been adopted by 26 February 1982, provided a detailed protocol for dealing with matters involving child physical and sexual abuse. 8. The guidelines relevantly provided that (1.1): All notifications of suspected child abuse are to be reported to any District Office or Child Protection Unit or the Department Youth and Community Service. The officer-in-Charge of such office is to ensure that Montrose Child Protection and Family Crisis Service is immediately notified of details of the reported case. 1. Clause 3.1 of the guidelines dealt, under the heading "Discretion", with the making of decisions by particular officers of the Department to lay a complaint under the Child Welfare Act (3.1.2) and to involve police in child abuse cases (3.1.3). 2. Having considered evidence from the then officer-in-charge of the Blacktown District Office, Mr Maguire, and his second in charge, Mr Frost ([49]-[50]; [53]), the primary judge concluded (at [55]) that in April 1983 there was a "highly developed system" for co-operation between the Department, the police and, in some cases, the Health Department on serious cases such as the present and that, "[a]lthough entitled guidelines", it was mandatory for such cases to be reported not only to a specialist child protection unit headed by the Department, Montrose Child Protection and Family Crisis Service (Montrose) (cl 1.1), but, where cl 3.1.3 applied, to the officer in charge of the CMU. Ground 1 of the notice of contention – whether duty of care required report to the CMU/police 1. The respondent does not challenge the finding that a common law duty of care was owed to the appellants in the exercise by the Department of the statutory powers conferred on it under the Child Welfare Act, as such. Rather, ground 1 of the notice of contention challenges the content or scope of the identified duty; i.e., that the common law duty of care imposed on the respondent a duty to report a matter of child abuse to the police. 2. The respondent says that the primary judge correctly accepted that s 46 of the Civil Liability Act (which provides in effect that the fact that a public or other authority exercises a particular function does not indicate that it was under a duty to do so or that the function should be exercised in particular circumstances or a particular way) applied in the present case ([30]). However, the respondent contends that the primary judge erred in treating the guidelines as establishing the requisite standard to be met by the respondent in the discharge of the identified common law duty of care. The respondent submits (at [43]) that in so doing, his Honour failed to apply the principle articulated in Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 requiring "a contextual and balanced assessment of the reasonable response to a foreseeable risk" (referring to what was said in Dederer at [69]). 3. In particular, it is submitted that the primary judge did not consider whether the system that was put in place by the respondent was, in itself, evidence of the taking of reasonable steps to fulfil any duty of care owed to the appellants ([44]) (something that would go to the discharge of the duty of care not the content of the duty of care as such). The respondent contends that his Honour elevated the guidelines to the standard required to be met by the respondent through its officers, such that any failure to comply strictly with those guidelines would be a negligent omission ([44]). 4. The respondent maintains that the guidelines were no more than procedural and did not impose an obligation on any officer of the Department to make a decision to "involve" police in any particular matter. It is submitted that his Honour wrongly treated the guidelines as synonymous with the common law standard required to be observed, and thus misdirected himself as to the required criterion of reasonableness and overlooked other means by which the duty to take reasonable care in the exercise of the available powers under s 148B of the Child Welfare Act could be achieved. The respondent argues that the primary judge erred in translating a common law duty of reasonable care into a duty to ensure a particular result by a particular procedure, namely notification of alleged child abuse to the CMU, and wrongly elevated the scope of the duty to ensure that a report had been received by a particular unit of the NSW police (see [45]-[47]). Determination 1. I accept that in their terms the guidelines are procedural and that they do not impose on the Department a mandatory obligation to report suspected child abuse to the police or to any particular unit within the police (such as the CMU) in all matters. I do not, however, accept that the primary judge treated the guidelines as synonymous with the common law standard required to be observed in all cases or translated a common law duty of reasonable care into a duty to ensure that the CMU receive a report of child abuse in this particular case. 2. The relevance of the guidelines in my opinion, and the guidance that the primary judge derived from them, was that they indicated what those who had formulated and adopted them considered to be a proper and reasonable response in cases of suspected child abuse. What the guidelines in mandatory terms required was that all notifications of child abuse be reported to Montrose (cl 1.1). However, they also envisaged that consideration be given to "involving" the police (which can only sensibly be read as encompassing notification of the abuse to the police) in child abuse cases and they gave an indication as to when it would be considered appropriate for the police to be involved. 3. Therefore, in giving content to the common law duty to exercise reasonable care in exercising the powers available under s 148B(5), the guidelines give a clear indication that in matters of suspected child abuse one precaution that might reasonably be taken, depending no doubt on the circumstances of any particular case, in order to avoid the foreseeable risk of further harm to the child, would be notification of the abuse to the police. Relevant to be taken into consideration in determining whether such a precaution was reasonably necessary in the present case would surely be that the suspicion of child abuse can only have been heightened by the step-father's known criminal history/sexual proclivities and the mother's admission, at an early stage of the Department's involvement, that the appellants had complained of abuse at an earlier time. Another relevant factor would no doubt be the nature of the abuse of which complaint was made. Here, on any view of things, it was very serious – penile/vaginal intercourse of children (at a time when they were, according to the initial notification, under 10) by someone in a position of trust and responsibility within the family unit. 4. Contrary to the assumption implicit in ground 1 of the notice of contention, I do not read his Honour's reasons as determining that the common law duty of reasonable care to be imputed to the Department imposed a mandatory requirement to report all matters of child abuse to the CMU/police or to ensure that a report of abuse be received by the CMU. Rather, I read his Honour's reasons as concluding that, in the circumstances of this particular case, given the matters to which his Honour had referred, which included the serious nature of the reported abuse and the high degree of risk of ongoing harm to which the appellants were exposed, as well as the relatively low burden involved in reporting the matter (as described by Mr Frost (see [54] of his Honour's reasons)), performance of the duty to take reasonable care in the exercise of the Department's powers did require the Department to notify the police. 5. The reasonableness of such a step, given what the Department knew in April 1983 (including that there had been some previous sexual misconduct on the part of the step-father, as referred to in the Child at Risk Notification, and that the mother had been aware of the complained abuse and appeared to have been incapable or unwilling to take appropriate steps to address it) is obvious. As Sackville AJA observed when this matter was previously before this Court (at [52]) it is difficult to think of a more vulnerable class of persons than children subjected to sexual abuse by parents or guardians. It cannot seriously be contended that it would have been sufficient in the exercise of reasonable care in the performance of the Director's statutory powers in the present case, that there was in place a protocol that might or might not be followed (which is what the respondent's submission at [44] seems to envisage). 6. Hence, I do not consider that his Honour erred in finding, in effect, that what was required in order to satisfy the duty to exercise reasonable care in the performance of the statutory powers under the Child Welfare Act was notification to the CMU (or the police), as contemplated might be a reasonable precaution under the terms of the guidelines. The need to protect the children from access to them by the step-father was obvious to the Department by late April 1983, when the mother was interviewed. It must have been even more obvious by June 1983, when the mother's acquiescence in the step-father continuing to have contact with and access to the children had made it apparent to the Department that she was incapable or unwilling to protect them and the children's distress at this had become apparent. It must have been yet more obvious by September 1983, by which time there could be no doubt that the step-father had not only sexually abused the children but was both brazen and unrepentant about the abuse. Throughout, the Department's own case officer was expressing a high level of concern as to the very real risk to the appellants' well-being given the unlikelihood of change on the part of the step-father. 7. His Honour did not err in concluding that in the present case the Department owed a duty of care to the appellants. I would describe the content of that duty as a duty in the exercise of the statutory powers under the Child Welfare Act so as to take all reasonable steps in the circumstances of the appellants' case to protect them from the risk of further physical and sexual abuse (and consequent physical and mental harm) at the hands of the step-father. The Department certainly took a number of steps to do so: carrying out a prompt investigation, placing the children away from the home, and instigating proceedings in the Children's Court. The question whether, in addition to or separately from those steps, the Department should have reported the notification of the abuse to the police is one that in essence goes to whether there was a failure to exercise reasonable care – the question raised by grounds 2 and 3 of the notice of contention. So far as ground 1 of the notice of contention contends that the primary judge erred in formulating the content of care, in my opinion it is not made out. The finding his Honour must be read as having made is that there was a duty of care owed to the appellants, the content of which, in all the circumstances of the case, required the Department in discharging that duty to report the matter to the police. Grounds 2 and 3 of the notice of contention – breach of duty 1. The respondent contends that the primary judge erred in finding a breach of the common law duty of care and ought to have found that the Department took reasonable steps to report the abuse to the CMU and/or a constable of police or, alternatively, that the evidence did not permit of any inference or finding that the abuse was not so reported. Relevant findings 1. The primary judge concluded (at [85]) that the appellants had established on the balance of probabilities, that the abuse was not reported to the police in accordance with the well-established procedures to which he had earlier referred (i.e., the inter-departmental guidelines and evidence as to the practice adopted within the Department at the time). The officer in charge at the time, Mr Maguire, gave evidence that there was a formal requirement that police be notified in cases of serious, particularly sexual, abuse and Mr Frost also gave evidence as to the practice of notifying police if there was sexual abuse. 2. At [90], his Honour considered an argument by the respondent that a report to the police might have been made informally and said that this was inconsistent both with the inter-departmental guidelines and with the evidence by Mr Maguire and Mr Frost. The primary judge accepted that Mr Frost attended the interview with the appellants' mother on 28 April 1983 ([110]). Mr Frost's evidence was that his practice on receipt of reports from his subordinates as to allegations of child sexual abuse was: We would ensure the child was safe, we would ensure we'd let the police know if there was sexual abuse and also we would place a child on a complaint before the Children's Court, it would be part of the practice and that his practice in that regard would be to call the CMU. 1. His Honour rejected a suggestion that the CMU might have directed the Department to the local police, observing that the suggestion was premised on an unproven assumption that the cases were in fact reported to the CMU in accordance with the guidelines ([91]). In his Honour's view (at [92]), the respondent was not assisted by the practice of not interviewing parents suspected of offending if there was a chance of a police case being pursued. The step-father had been interviewed on 15 September 1983, but it could not be inferred that the interview took place because the police had been notified of the abuse but had decided not to charge the step-father. His Honour considered that the suggestion that there was a practice not to interview parents suspected of offending if there was a chance of a police case being pursued (something relied on, as I understand it, by the Department to argue that it could be inferred from the fact of the 15 September 1983 interview with the step-father that the matter had already been reported to the police) suffered from the same flawed logic ([92]). 2. The primary judge did not consider that the Department's access to a copy of the step-father's criminal record was persuasive evidence that the abuse had been reported, taking into account the contemporary record of evidence given in the Children's Court (at [93]). The information was obtained not because a suspected offence had been reported to the police, but because a request had been made to the police prosecutor dealing with juvenile justice matters at the Children's Court. 3. His Honour described (at [94]) evidence by DC that she had attended Blacktown Police Station as the strongest factor supporting the respondent's position. However, his Honour was not satisfied that any such attendance had occurred. DC had given different versions of her attendance at the police station and her evidence appeared to be a reconstruction that had the flavour of an attempt to rebut a criticism that she had not reported the abuse to police in a timely fashion. Furthermore, her account of the circumstances of the attendance could not be considered reliable (at [101]). 4. The primary judge considered (at [102]) that the preferable inference from the evidence was that the abuse had not been reported to the police. There was "absolutely no mention in the contemporaneous records", including those of the Children's Court proceedings, of any report having been made. None of the District Officer's reports referred to any report to the police or attendance at the police station. In addition, the Department's explanation for the absence of records was not "completely satisfactory". Respondent's submissions 1. The respondent refers (submissions at [49]) to the statement by French CJ in Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215 (at [49]), when considering the application of private law notions of duty in the field of the exercise of powers under public statutes, that: A claim for damages for breach of a duty of care may be made against the repository of a statutory power in circumstances in which: (i) a decision has been made not to exercise the power; or (ii) a decision has been made to exercise the power and the claim relates to the manner of its exercise. 1. The respondent argues that the present case was one where a decision had been made to exercise the relevant power (reporting notifications of serious child sexual abuse to police) and therefore the appellants' claim could only concern an alleged failure in the manner of that exercise, which required an enquiry into particular steps taken by relevant officers of the respondent following the notification of the abuse by TB. (As I read that submission, the "decision" to report notifications of serious child sexual abuse to the police is a reference to the protocol established in the inter-departmental guidelines since there was no evidence that in fact a decision was made in this case to refer the matter to the police. If so, such a submission flies in the face of the respondent's earlier submission that the guidelines were procedural only.) 2. The respondent maintains that, in the absence of the relevant records of the respective agencies, the appellants did not establish, by probative evidence, "the links in the chain of events that contextualised and defined the 'manner' of the exercise of the power by the Department" ([51]). 3. Various criticisms are made as to the reasoning adopted by the primary judge. In essence, the respondent argues that the enquiry by his Honour involved a speculative reconstruction of what one agency, the CMU, may have done had it been possessed of the information known to the Department. It argues that it cannot be inferred, from the fact that no charges were laid against the step-father, that no report of the abuse was made to the CMU. 4. The respondent argues that the finding that there was a "general expectation" that serious cases of repeated and severe abuse would not only involve discussions between the Department and the CMU but would also lead to charges being laid, is tendentious and unsupported by the evidence. 5. In this regard, the respondent points to the evidence by a former detective attached to the CMU of the North West Regional Crime Squad from 1989 to 1990, Mr Peter Maxwell, that the CMU maintained a central book in which notifications of child mistreatment received by the CMU were recorded but that the book could not be located. Reference is also made to the evidence to the effect that many records of the enquiry by the Wood Royal Commission in 1994 were returned, destroyed or transferred to the Police Integrity Commission. 6. The respondent also points to the evidence of Ms Quinn (based, as I read the transcript, on reports she had read prepared by other people based on their review of cases in 1982 and 1994 – reports that were not adduced in evidence) that a report to police did not automatically mean an interview by the police and did not automatically mean a charge or result in court action against the perpetrator. 7. The respondent thus submits that the evidence did not support a view that there was in 1983 a general expectation that notification of serious child abuse would lead to criminal charges being brought by the CMU against an alleged perpetrator of child abuse in respect of whom a notice had been received ([55]). 8. The respondent also complains that the primary judge took into account, as supportive of the premise that reports of child sexual abuse by the Department to the CMU would have been acted upon by the CMU, opinions from legal practitioners not qualified on the basis of any particular knowledge of the operations of the CMU (Mr Cowdery QC and Mr Terracini SC). It submits that their evidence provided no foundation for findings about the systems in place by the CMU in April 1983 to deal with matters of child sexual abuse and the interaction of that unit with the Department through communications with district officers at Blacktown and Montrose. 9. The respondent next argues that the primary judge's conclusion (that if the inter-departmental guidelines had been followed then it is probable that the abuse of the appellants would have been reported to the CMU) relies on flawed reasoning: the major premise that the Department had a policy of reporting to the CMU all child sexual abuse notifications in accordance with guideline procedures and the minor premise that reports received by the CMU from the Department in 1983 were acted upon by the CMU to charge the reported offender; from which it could be concluded that it was probable that no report was made to the police. 10. The respondent submits that this flawed reasoning leads to the erroneous conclusion that the Department was negligent for two reasons: first, because it assumes that the CMU had a system in place for recording and using reports of the Department in order to initiate prosecution action (whereas it says there was no evidence before the court of such a system) and, second, because there was no direct or primary evidence from which it could be inferred that such a notification would have caused the CMU to bring charges against the step-father immediately or within a very short time of that communication taking place. 11. The respondent argues that there are a number of other scenarios of equal force (including that a report was made but not recorded or was misplaced by officers of the CMU; or was made but not further acted upon by the CMU). 12. The respondent accepts that in matters of the kind notified by the appellants to the Director in April 1983 the discretion contemplated by s 148B(5)(b) would "as a general matter or policy" be exercised by, amongst other things, reporting the matter to the police but disputes that reporting a relevant matter to the police was the only step open to be taken in discharge of any common law duty owed to the appellants in the reasonable exercise of statutory powers. (This substance of this submission would go to the content of the duty rather than its discharge). 13. The respondent also provided lengthy written submissions in support of the proposition that the evidence did not support the finding that there was no notification of the abuse to the police. 14. First, the respondent points to the evidence as to the actions taken by Ms Quinn. 15. It notes that the primary judge found (at [65]) that Ms Quinn had notified Montrose of the notifications of abuse at the time of completion of the Child at Risk Notification. Ms Quinn's evidence was that she believed that when she notified Montrose she had become aware of some of the step-father's criminal history and the current rape charge against him. She could not recall the way that she became aware of that information. Her evidence was also that she believed there had been a communication to the police but could not say she was the one that had communicated the information because she did not remember. She formed that belief because of the detail she had included in her reports to the Children's Court as to the step-father's criminal record, the source of which she believed would have been the police, though it appears that she accepted she could have obtained at least some information of that kind by simply telephoning the police in her capacity as a district officer. At the time of her 2005 police statement, Ms Quinn appears to have assumed that the matter had not been reported to the police. She had no recollection of making a notification to the police. 16. The respondent argues that the primary judge wrongly attributed to Ms Quinn evidence as to a belief that she would have reported the matter to the police (at [64]), there referring to evidence in which Ms Quinn in fact said that she believed she would have told her supervisor that the matter qualified as one to be reported to the police. 17. The respondent argues that the inescapable logic is that Ms Quinn obtained the information as to the step-father's criminal history and pending rape charge when she or another district officer, or an officer at Montrose, contacted police on about 22 April 1983 and gave the police sufficient detail of the reported abuse to justify the request for information about the step-father; and that the primary judge should have so concluded. The respondent points out that in cross-examination Ms Quinn said that the Department would have to give the police information about the case in order to obtain information about a person, which would involve describing what the Department knew. She could not recall calling the police herself to find out as part of the investigation what the police knew. 18. The respondent submits that the primary judge's view (at [67]) that Ms Quinn's evidence as to the manner in which she obtained the information as to the step-father's criminal record conflicted with the evidence she gave to the Children's Court on 19 September 1983 is unsustainable. In the Children's Court, Ms Quinn had answered a question as to whether she caused enquiries to be made in regard to any criminal convictions that "Yes. The prosecutor here got the record." The respondent submits that it is clear from the context that what Ms Quinn was acknowledging was that the criminal record that was there being tendered had been obtained by the police prosecutor for the purposes of those proceedings; i.e., that Ms Quinn was simply referring to the physical evidentiary document to be tendered by the police prosecutor in those proceedings; and there is no inconsistency between that answer and her evidence that she had already obtained information about the step-father's criminal history at the time of her notification to Montrose on or about 22 April 1983. 19. The respondent further submits that the fact that a police prosecutor was present and taking an active role in the Children's Court proceedings is of some contextual significance. Thus it is submitted that even if a report to the CMU was not made under the procedures established pursuant to the inter-departmental guidelines, it cannot reasonably be disputed: first, that an officer of the Department, whether from the Blacktown District Office or Montrose, must have involved police in April 1983 at least to the extent of obtaining the step-father's criminal record, which it is submitted would have required the police to be informed of what the Department knew as at that time; and, second, that through the attendance of the police prosecutor at the Children's Court, the police had a reasonable basis upon which to be apprised of the intelligence that was otherwise within the knowledge of departmental officers at all material times. 20. The respondent also argues that DC's statement in 2002 to the police in which she said that she was taken to the Blacktown Police Station and "they [whether the police or a departmental officer being immaterial for the respondent's submission] said they could not charge" the step-father as both she and TB had to make a complaint and TB could not cope with court, is further evidence that some consideration was given in 1983 to the question of bringing charges against the step-father. The respondent further argues that some support for the conclusion that police officers may have formed a view about the impact on the appellants of any action taken against the step-father can be found in the mother's evidence to the Children's Court in 1983 (repeated in an affidavit sworn by her in 1985) that she had contacted police at an earlier time to report the step-father's abuse of TB only to be told by police that if they followed through on the complaint "it would be devastating for the whole family". The respondent argues that, whether or not the available evidence supported a finding that DC attended Blacktown Police Station, an assessment of all the evidence lends probative weight to the probability of relevant involvement of police at the time as a result of action taken by the Department in or about April 1983 and to there being a decision by police not to proceed with action against the step-father at that time. 21. Second, the respondent also argues that the inference drawn by the primary judge as to the failure of a relevant Department officer to report the matter to the police is also the product of flawed logic having regard to the evidence of Mr Frost. 22. The respondent notes that there was no finding by the primary judge that Mr Frost failed to report the matter following his attendance at the interview with the mother; nor that the Senior Executive Officer at Montrose who had authority under the guidelines to make decisions to involve police failed to report to a police officer the matters notified to the Montrose office by the district officer on 22 April 1983. The respondent argues that it was not put to Mr Frost that he failed, or may have failed, to follow his usual practice on any occasion or that, in particular circumstances, he may have decided, as an exception to that practice, to refrain from or defer communicating with the CMU on a notified matter of child abuse. The respondent argues that, as a matter of procedural fairness, that was an important matter to raise with Mr Frost if it were to be suggested that he failed to do something which a reasonable man in his position would do. It is submitted that this was an essential matter if facts were to be objectively established to enable the primary judge to draw inferences after considering the apparent logic of events. 23. The respondent submits that what steps Mr Frost took in adopting the practice of communicating with the CMU was a critical primary matter to establish before it could reasonably be inferred by the primary judge that responsibility for a break-down in one aspect of the detailed protocol set out in the guidelines should be sheeted home to Mr Frost, and before this could form the basis for a finding of a negligent omission by the respondent to discharge a duty to the appellants to take reasonable care in the exercise of an available statutory power involving reporting a matter to police. 24. It is further submitted that any finding that Mr Frost failed to act, and thereby displayed a want of good faith and reasonable care within the meaning of s 158 of the Child Welfare Act on such a serious matter as presented in April 1983, must be set against the fact that the practice of communicating with the CMU was a practice established by Mr Frost and approved by his supervisor Mr Maguire and must also be viewed in the context of the working relationship between Mr Frost and Ms Quinn. On the advice of Mr Frost, Ms Quinn had, among other things, acted promptly to interview TB on 20 April 1983 and to take DC into care and remove her from the home on 21 April 1983; to arrange for a place of safety for TB the following day; had notified Montrose; and had taken steps to obtain a court order in relation to DC, interview the mother and commence Children's Court proceedings. 25. The respondent submits that none of the evidence given by Ms Quinn about the steps she took to advance the proceedings in the Children's Court and to obtain the criminal record of the step-father at the outset of her enquiry is inconsistent with Mr Frost's evidence that he was the person responsible for making contact with the CMU and that there is no reasonable inference available from the evidence of Ms Quinn that Mr Frost failed to report to police. 26. It is submitted that it cannot be inferred that Mr Frost failed to notify the CMU of the abuse on or about 28 April 1983; nor can it be concluded that the respondent was negligent in the manner of its exercise of a statutory discretion under the Child Welfare Act and that such a finding would necessarily involve a conclusion that Mr Frost deliberately or recklessly disregarded the very practice that he and Mr Maguire had established at the Blacktown District Office as to the reporting of serious child abuse matters to police. It is submitted that the evidence does not lead to the establishment of relevant primary facts from which any inference of such a disregard could reasonably be drawn adversely to Mr Frost and the respondent. 27. Finally, the respondent submits that even if Mr Frost omitted to take steps of the kind contemplated by the guidelines to involve police, the issue of reasonable care still needs to be assessed in the context of and upon a balanced assessment of the reasonableness of the overall response by the Department to the notification received on 20 April 1983, including the steps taken by Ms Quinn to obtain, either directly or indirectly, the criminal record of the step-father. 28. It is submitted that it is an inescapable inference from that established fact that a departmental officer (from Blacktown District Office or Montrose) gave at least a sufficient report of the abuse of the appellants by the step-father to police in order to obtain information about his past criminal record; that being information that could only reasonably have been sourced from police. 29. The respondent points to the finding that the steps actually undertaken by Ms Quinn constituted appropriate action by her for the purpose of s 148B(5)(b) of the Child Welfare Act ([111]). It is submitted that this finding, viewed in the context of the communications between the relevant agencies, the obtaining of the step-father's criminal record and involvement of a police prosecutor in the Children's Court proceedings, provides a firm foundation for a finding that the respondent did not breach any duty of care it owed to the appellants. 30. It is submitted that it does not logically follow, from the fact that the police did not charge the step-father on or shortly after 28 April 1983 with the same offences with which he was charged in 2003 (or at all), that the relevant officer (Mr Frost) must have negligently failed to report a notified matter to police on behalf of the Director in the exercise of powers under the Child Welfare Act and in pursuance of the guidelines. 31. It is submitted that in the absence of any evidence about the procedures or processes of the CMU in April 1983, it is not possible to make essential primary findings as to those matters leading to the drawing of reasonable inferences about the conduct of Mr Frost in April 1983; and that it is not possible to go further than consider it possible that a report may not have been received by police or may have been received but not acted upon for any number of possible reasons (including clerical error, misplacement by a CMU officer of any note of a telephone conversation with Mr Frost, concern for the vulnerability of the appellants if their abuser was charged or other internal CMU considerations). It is submitted that the method of inference used by the primary judge in effect was one of mere speculation or conjecture. Appellants' submissions 1. The appellants accept that there was an issue as to how the Department came to have knowledge of the step-father's criminal record and that his Honour found that there was some informal contact with the police. However, they submit that informal contact with the police does not equate to reporting to the police in the relevant sense (referring to his Honour's reasons at [47], [93], [102]). It is submitted that the primary judge gave persuasive reasons for rejecting the respondent's case on the issue as to whether or not reporting had actually occurred. They note that Ms Quinn's evidence on this issue was based entirely on reconstruction. 2. The appellants emphasise the primary judge's finding that, if reported, it would have been extremely likely that the step-father would have been charged ([56]) and submit that his Honour was entitled to take into account, as he did, the evidence given concurrently of the expert criminal lawyers, particularly that of the former Director of Public Prosecutions (Mr Cowdery QC) that the police would almost certainly have acted on a complaint made in the appellants' circumstances. They submit that that opinion powerfully supports the inference which the primary judge drew that no complaint was made to police. Determination 1. The lack of records (from the CMU, the Department or elsewhere) meant that direct proof of notification or a lack of notification to the police could not be established. There certainly was no record of any notification. Nor could Ms Quinn (the case officer most closely involved in the case albeit not the officer with the primary responsibility in the Blacktown office to have made such a notification) recall the making of such a notification. It might perhaps have been thought likely for someone in her position, expressing such a level of concern as to the risk of harm to the children, to have recalled if such a notification had been made though there can be no criticism given the lapse of time that she was unable to recall one way or the other whether a notification had been made. Similarly, her apparent readiness, at the time of the criminal proceedings, to proceed on the assumption that there had been no notification to the police points at the very least to her not having had a strong recollection of that kind to the contrary. 2. In those circumstances, his Honour was faced with determining, on the balance of probabilities, whether (as the Department had contended and the respondent still contends his Honour should have found) notification to the police had in fact been made. 3. Looked at in simple terms, there was on the one hand evidence by officers of the Department as to their usual practice when allegations of serious child abuse were made (consistent with the content of the inter-departmental guidelines as to the protocol or procedures generally to be followed in such a case) and, on the other hand, there was a dearth of evidence to suggest that the police took any step at all in relation to the matter (beyond the fact that a police prosecutor was involved in the conduct of the Children's Court proceedings and had provided a copy of the step-father's police record). 4. Not only was the step-father not charged with any offence (which might have been explicable if there were concerns as to ability of the appellants to withstand the stress of a trial) but there was also no evidence of even the most cursory investigation by the police at the time. So, for example, there was no evidence of any interview being undertaken by a member of the CMU or other police officer with either of the children or their mother (let alone of any interview with the step-father himself). Had there been one or more interviews of that kind, it seems unlikely that the Department officers in charge of the case would not have been made aware of it; and had that happened it seems unlikely that reference to it would not have been somewhere in the reports put before the Children's Court. 5. The most probable inference from the lack of any evidence of police involvement at all (particularly in circumstances where the reliability of the appellants' complaints was supported by the accounts given by the mother and ultimately by the step-father's admission of abuse in the September interview) and from the fact that there seems to have been no similar inaction when complaints of other sexual offences were made in relation to the step-father (such as was the case with the rape of the son's girlfriend and the reported sexual abuse in February 1984 of a young woman at the local club) is that there was no formal notification or referral of the matter to the CMU or to the police. 6. True it is that implicit in such a finding is the conclusion that, for whatever reason, Mr Frost did not follow the "general practice", or his usual practice, in this particular case. That does not require a finding that he recklessly disregarded his duties (as the respondent suggests) nor was there some denial of procedural fairness to the respondent arising from the fact that it was not put to him in cross-examination that he had not followed his usual practice in this instance. Mr Frost's professional reputation was not in issue. 7. The existence of other possible explanations for the lack of any police investigation or charge does not assist the respondent. The primary judge considered the relevant evidence and concluded that on the balance of probabilities the most probable inference was that no formal notification had been made. Nor does it assist the respondent to point to the likelihood that there was some level of informal contact with the police (assuming that was the means by which Ms Quinn originally obtained information as to the step-father's criminal history). It can readily be inferred that the significance of a formal notification procedure was that one could expect it to trigger some form of response by police, which might not necessarily be the case had there been merely an informal enquiry as to the criminal antecedents of someone about whom a complaint of abuse had been made. Insofar as his Honour may have mischaracterised the evidence of Ms Quinn (as referred to above) this was not dispositive in his Honour's reasoning on this issue. 8. The primary judge gave cogent reasons for discounting the suggestion that a meeting had taken place between the children and a member of the police force. One of the powerful factors in favour of that finding is that there is no mention of any such meeting in the reports prepared by Ms Quinn for the Children's Court. 9. The fact that an interview took place between Ms Quinn and the step-father on 15 September 1983 is equivocal. At one level, departmental practice was not to interview the alleged abuser until criminal proceedings had been instituted or perhaps resolved. On the other hand, if the police had taken no action by September 1983 there may have been considered to be no obstacle to the interview taking place. In any event, since the record of that interview has been lost, no inference adverse to the appellants should be drawn from the fact that the interview took place. 10. In my opinion, the finding that on the balance of probabilities the step-father's abuse of the appellants was not reported to the police at any time prior to March 1984 should be upheld. 11. I am therefore not persuaded that his Honour's finding as to breach of the duty of care was in error. Grounds 16 and 17 of the grounds of appeal – damages 1. The final two grounds of appeal (grounds 16 and 17) go to the contingent findings made by the primary judge as to damages. 2. The appellants submit that the primary judge erred in apportioning damages, in circumstances where he treated the loss as indivisible and where it is said that the respondent did not discharge an evidentiary onus to adduce evidence of the extent to which damage to them was caused otherwise than as a result of the Department's breach of duty. They contend therefore that the damages assessed by the primary judge should not be discounted, whether by 70% (as his Honour found) or any other percentage. Relevant findings 1. The primary judge concluded (at [181]) that the correct approach was to treat the harm suffered by each of the appellants, and all of its consequences, as indivisible. His Honour also considered that there could be doubt that, had there been ongoing sexual abuse, those further assaults would have materially contributed to the totality of the harm suffered ([181]). However, this did not mean that the appellants were entitled to receive damages for the whole of their loss (at [182]). In the circumstances his Honour considered that the appropriate course was to apply the principle discussed by Ipp JA in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [101], on the basis that the injuries TB and DC had sustained also resulted from abuse for which the respondent had no legal responsibility ([182]). In his Honour's view, the appellants would have sustained injury even if the Department not been negligent. Over compensation could be avoided by applying an "across the board" discount to the damages that would otherwise have been awarded had the State's negligence been the sole cause of the appellants sustaining injuries. This approach was appropriate given the difficulty of evaluating the significance of the pre-existing abuse for each of the various heads of damage (at [185]). Appellants' submissions 1. The appellants rely on the principles articulated in Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 for the proposition that where the plaintiff's loss was indivisible, there was an evidentiary onus on the defendant (here, the respondent) to establish what portion of the loss was caused by a cause for which the defendant was not liable. 2. In Watts v Rake, Dixon CJ said at 160: If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory case. If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred. For myself I do not think that he has proved more than that at an earlier time than other men the plaintiff would have reached a stage of disability but not the same disability. 1. In Purkess v Crittenden, Barwick CJ, Kitto and Taylor JJ referred to Watts v Rake and said at 168-169: We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial... it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence. In the present case the evidence accepted by the learned trial judge by no means established with any reasonable degree of precision the extent of the appellant's pre-existing affliction or what its future effects, apart from the result of the defendant's negligence, were likely to be. That being so we think it was proper for him to deal with the case on the basis that the defendant's negligence was the cause of the appellant's permanent disability and, accordingly, we propose to deal with this appeal on the same basis. 1. The appellants submit that insofar as the primary judge suggests (at [184]) that Purkess v Crittenden only applies where no injury may have occurred at all if there had been no negligence, the suggestion is inconsistent with what was said by Ipp JA in Seltsam Pty Ltd v Ghaleb at [101]-[103]. (Pausing there, I do not read the primary judge as making that suggestion since his Honour also extracted (at [183]) the passage by Ipp JA at [105]-[106], making it clear that the evidential onus remains on the defendant where it is alleged that the plaintiff suffered from a pre-condition. Rather, at [184] I read the primary judge as drawing a distinction between the appellants merely being susceptible to injury as a result of the pre-April 1983 abuse and the situation where the pre-April 1983 abuse would have resulted in much the same harm as the appellants ultimately experienced as a result of the whole period of abuse.) 2. The appellants argue that Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, to which Ipp JA referred in Seltsam, was a case dealing with the likelihood of future or hypothetical events occurring; not to the apportionment of damages by reference to different causes. 3. The appellants do not challenge the primary judge's assessment of damages but contend that the apportionment (by reducing the damages referable to each of the appellants' total loss by 70% (see [185])) should be set aside. Respondent's submissions 1. The respondent submits that there was ample evidence before the court below that the onset of the appellants' diagnosable psychiatric injury occurred as a result of the events in 2005 (the "trigger" provided by the criminal proceedings); not by reason of a pre-existing condition in the sense described in Watts v Rake and Purkess v Crittenden. In any event, it argues that to the extent that it had any evidentiary onus to adduce evidence of the extent to which, assuming liability, damage suffered by the appellants was due to a pre-existing condition, that burden had been discharged. 2. The respondent points to the joint opinion of the psychiatric experts that the cause of mental harm in respect of both appellants was the "childhood sexual abuse itself". It notes Dr Champion's opinion that TB's behavioural changes (as identified by Dr Diamond following the April 1983 notification to the Department) were likely to have been related to the assaults as then notified to the Department, and to Dr Diamond's opinion that it was in 2005 that TB developed the chronic post-traumatic stress disorder which now incapacitated her. In the case of DC, reference is made to Dr Champion's opinion to similar effect. The respondent maintains that both the appellants were in a position of vulnerability prior to 1 August 2005, but that prior to that time they had no ongoing psychiatric disorder. It submits that there was a level of agreement between the medical experts in respect of both TB and DC that the particular events of 2005 were, in themselves, a substantial trigger either "fully" manifesting the appellants' mental condition or giving rise to it. It maintains that the underlying condition that the primary judge said had been made manifest on the confrontation with the step-father was itself a recognised psychiatric illness within the meaning of Pt 3 of the Civil Liability Act (referring to the passages in his Honour's reasons at [187], [189], [190]). 3. The respondent submits that his Honour's approach in apportioning damages was not misconceived and refers to what was said in Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537 by Hayne and Bell JJ (agreeing with Kiefel J) (at [66]), namely: For the purposes of the law of negligence, "damage" refers to some difference to the plaintiff. The difference must be detrimental. What must be demonstrated (in the sense that the tribunal of fact must be persuaded that it is more probable than not) is that a difference has been brought about and that the defendant's negligence was a cause of that difference. The comparison invoked by reference to "difference" is between the relevant state of affairs as they existed after the negligent act or omission, and the state of affairs that would have existed had the negligent act or omission not occurred. (emphasis in original) (footnotes omitted) 1. The respondent argues that, in assessing damages which depend upon a view as to what would have happened in terms of the appellants' mental harm if the respondent had (on the appellants' case) not failed to report the step-father to the police in April 1983, an hypothetical exercise is involved in the making of an estimate of the chances of the harm happening and that in those circumstances the adoption of an "across the board" methodology for the purpose of making a contingent assessment of damages discloses, in itself, no material error of law. Supplementary submissions as to damages 1. The appellants' supplementary submissions as to the calculation of damages summarised the areas of disagreement between the respective parties as to the heads of damages accepted by the primary judge and indicated that, in the event that the appeal were to be allowed, the parties did not wish to be heard in relation to the question of damages beyond those submissions. Annexed to the supplementary submissions were two schedules setting out the calculations of damages based on the findings of the primary judge. The parties accept that the respective schedules set out the ultimate damages calculation which each party contends would be consistent with the heads of damages accepted by the primary judge. 2. In essence, there is agreement as to the calculations in relation to all but three heads of damage: non-economic loss; interest on past loss of superannuation; and interest on past out of pocket expenses. Non-economic loss 1. The issue in contention between the parties on this aspect of the matter relates to whether, having regard to the outcome of the appeal, this Court is involved in a re-assessment of the damages such that the approach in Nicholson v Nicholson (1994) 35 NSWLR 308 (at 315F, 332F and 334E) would require the adoption of the most recent non-economic loss figures as the basis for the calculation. The appellants argue that in that event the Court should calculate non-economic loss on the basis that the applicable figure for the most extreme case is $594,000 (not the figure used by the primary judge - $572,000). 2. The respondent accepts that if the appellants are successful in relation to the Watts v Rake issue then it is open to the Court to re-assess damages and, as such, to adopt the non-economic loss calculation contended for by the appellants but it submits that if the appeal is allowed only on grounds other than grounds 16 and 17 of the amended notice of appeal, with the consequence that the Court confirms the 70% reduction contingently determined by the primary judge, then the Court is not involved in re-assessing damages and therefore the approach adopted in Nicholson v Nicholson does not apply. Interest on past loss of superannuation 1. As to interest on past loss of superannuation, the appellants argue that this is available as a matter of principle and they submit that an allowance for such interest is implied in the comments made by the primary judge at [220]. The respondent on the other hand points to the fact that the primary judge, though making express provision for interest on past loss of earning capacity ([220]), did not make any express provision for interest on past superannuation. The respondent contends that it does not follow that the award of such interest is either available as a matter of principle or implied in his Honour's reasons. Interest on past out of pocket expenses 1. Similarly, the appellants argue that such interest is available as a matter of principle and prima facie is allowable on the past out-of-pocket expenses discussed by the primary judge. They submit that interest should apply from the average date of accrual of the respective past out of pocket expenses. The respondent, as it does in relation to the previous disputed head of damage, argues that it does not follow that such interest is available as a matter of principle or that the primary judge intended such an award. The respondent notes that the primary judge made no provision for interest on past out of pocket expenses and submits that there is no evidence that the amounts were actually paid. 2. In summary, the difference in the total of the damages calculation taking into account the difference in the parties' positions on those three heads of damage (and assuming that the 70% reduction contingently determined by the primary judge is confirmed) is, in the case of TB, $15,776 and, in the case of DC, $7,521. Determination 1. In my opinion, it cannot be said that his Honour erred in concluding that had there been further ongoing sexual abuse in the post-notification period this would have made a material contribution to the appellants' harm. So much is evident from Dr Diamond's supplementary report. His first report (which suggested that all the harm was attributable to pre-April 1983 events) must be understood in the context that it proceeded on the mistaken assumption, corrected by reference to Dr Szyndler's report, that the whole of the abuse occurred in the period to April 1983. 2. The appellants submit that Dr Diamond's view was that the post-traumatic stress disorder had arisen prior to the 2005 criminal trial but manifested itself at the time of the trial, and that part of the cause of the evolution of that disorder was the step-father's ongoing abuse post-April 1983. Dr Diamond did not identify the onset of the psychological damage, it being accepted by the experts that the appellants only became aware of their condition after the acute onset of symptoms following the criminal trial. Dr Diamond did, however, state the opinion that chronic post-traumatic stress had arisen "at the time of the abuse and continued through to the present with some exacerbation at the time of the Court hearing". The appellants point out in this context that there was no evidence of the behavioural disorders (in particular, DC's bed-wetting and TB's self-harm) prior to April 1983. 3. I am not persuaded that the respondent adduced evidence that established what portion of the harm or damage was harm or damage to which the post-April 1983 abuse had contributed (for the purposes of satisfying the evidential burden imposed by Watts v Rake) though the respondent certainly adduced evidence which established that there was another contributing cause to the ultimate harm, i.e., a cause that went beyond the Department's negligence. 4. However, insofar as the appellants rely on the respondent's failure to discharge the Watts v Rake evidentiary onus as entitling them to the whole of their damages, there is a tension between the Watts v Rake and Purkess v Crittenden line of authority on the one hand and that considered in and following Malec, as pointed out by Professor Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2003, LexisNexis Butterworths). 5. At [1.9.11] in that text, Professor Luntz, discussing the principle derived from the House of Lords decision in Bonnington Castings Ltd v Wardlaw [1956] AC 613; 1 All ER 615 (that where an external cause may also have contributed to the plaintiff's condition, the onus of proving causation was satisfied once the plaintiff proved that the defendant had contributed materially to the condition, and where it was impossible to apportion the loss the plaintiff would recover the full amount of its loss; thus there being an evidential onus on the defendant to disentangle the causes (and see the discussion at [1.9.10])), argues that logically the application of the principle of Malec where there is an external contributing cause to indivisible loss would require the Court to evaluate the chance that the harm would have occurred without the defendant's contribution and to reduce the damages recoverable from the defendant accordingly. While it is noted at [1.9.11] that an argument to that effect was rejected in Commonwealth v McLean (1996) 41 NSWLR 389 at 410-411, Professor Luntz postulates (at fn 662) that the "innocent" cause there was one that in any event would be taken into account when making an allowance for contingencies or vicissitudes. 6. Professor Luntz goes on to say at [1.9.14] that: To reconcile these different lines of authority, it is necessary to say that the plaintiff must prove on the balance of probabilities that the defendant's negligence did contribute materially to the present symptoms (this is the legal onus that rests on the plaintiff). Once that is satisfied, there is an evidential onus on the defendant of proving that the alleged pre-existing or subsequent natural condition did exist and that this condition in its natural progression would have produced similar symptoms. If the defendant is unable to satisfy the evidential burden, the court will reduce the plaintiff's damages for contingencies to no greater extent than in the ordinary case. If, however, the defendant shows that there was a real chance that the plaintiff would have developed similar symptoms from a natural condition attaching to the plaintiff, the court will make a greater reduction than normal to reflect this increased chance. (footnotes omitted) 1. I consider that the reasoning of Professor Luntz is apposite in the present case. Accepting that the respondent did not satisfy the evidential burden (the Watts v Rake burden) of disentangling the relevant causes of harm, the evidence nevertheless established that there was a real chance that the appellants would have developed similar symptoms even in the absence of the respondent's negligence. 2. Both Dr Diamond and Dr Champion established that there was a real chance that the post-traumatic stress disorder would have developed even had the Department reported the matter to the police in around April 1983 and that had led to the cessation of abuse as at April 1983. The appellants accepted in oral submissions that there was such a chance. (Indeed given that the criminal trial seems to have been accepted as the trigger for the condition to become manifest in 2005 there might be an argument that the condition would have manifested itself much earlier had the Department reported the abuse to the police and the step-father been charged at an earlier time.) Another element of Dr Diamond's second report is that the onset of the psychiatric conditions and the severity of the conditions was influenced by the view that the appellants had felt that the authorities had let them down. 3. As referred to earlier, the appellants accepted on the hearing of the appeal that if the primary judge was correct in apportioning damages the appellants cannot do better than 30% of the total assessed damages. Having regard to the position adopted by each party on the appeal in this respect, I would not interfere with the decision of the primary judge as to the apportionment of damages (though I would have reached such a result on the basis of somewhat different reasoning). Grounds 16 and 17 are not therefore made out. The primary judge's allowance of 30% of the total damages sustained therefore should not be disturbed. 4. That being the conclusion I have reached on grounds 16 and 17, I accept the respondent's submission that the appropriate starting point for the calculation of non-economic loss is that which the primary judge applied (namely $572,000). The primary judge assessed TB at 66% of the most extreme case and DC at 47% of the most extreme case. Therefore, the amounts to be awarded for non-economic loss for the appellants should be $113,250 (being 30% of $377,500) for TB and $80,700 (being 30% of $269,000) for DC. 5. As to the question whether interest should be awarded for past superannuation loss and/or past out of pocket expenses, little weight can be placed on the fact that the primary judge did not make express reference to such amounts. It is clear that the primary judge was only briefly setting out his views on the heads of damages claimed and that there would be a need for some recalculation (at least of the past economic loss figures for TB – see [214]). 6. No reason in principle has been advanced as to why interest should not be awarded in respect of the claimed past superannuation loss and I would include the amounts specified in the appellants' schedule in that regard. Subject to the complaint by the respondent that there was no evidence of actual payment of out of pocket expenses, I would adopt the same position in relation to the interest on out of pocket expenses. The concern expressed by the respondent would be met by making the order for such interest subject to provision of evidence of actual payment of those expenses. 7. Therefore, on my calculations, the amount to be awarded to TB should be $939,435.60 (being 30% of the sum of $3,131,452) plus $4,022 by way of interest on the past out of pocket expenses allowed by the primary judge subject to provision to the respondent's legal representatives of evidence of actual payment of those expenses. Similarly, the amount to be awarded to DC would be $536,463.60 (being 30% of the sum of $1,788,212), plus the sum of $790 for interest on past out of pocket expenses, again subject to evidence of the actual payment of those expenses. In that regard, given the relatively small amounts in issue in relation to the interest on past out of pocket expenses, I would have expected the respondent, as a model litigant, to accept some form of verified statement by the appellants or their legal representatives as to the payment of the expenses. 8. In light of the joint request for the question of costs to be reserved, no order should be made at this stage for the costs. By way of indication, however, there is nothing to suggest that costs ought not follow the event. 9. Finally, I should add that since having written the above I have had the opportunity to read in draft the reasons of Basten JA in which (among other things) his Honour expresses doubt as to the correctness of the assumption that s 148B of the Child Welfare Act was engaged in the present case (see [32]-[48]) and has concluded that the duty of care owed by the respondent to the appellants through its officers in the Department did not extend to the statutory power to report to the police the allegations of criminality by the step-father ([92]). 10. As I understand the submissions made by the respondent, and as I have earlier noted, on this appeal the respondent did not challenge the finding that a common law duty of care was owed to the appellants in the exercise of the statutory powers conferred on it under the Child Welfare Act (simply challenging the content or scope of the common law duty of care), nor did it contend that the statutory power relied upon (s 148B(5) of the Child Welfare Act) had not been engaged in the present case. 11. A finding that s 148B(5) had been engaged was made in earlier proceedings involving the present parties by Mathews AJ – see DC v State of New South Wales [2009] NSWSC 297 at [39]; TB v State of New South Wales [2009] NSWSC 326 at [39]. On appeal from the decision of Mathews AJ in the respective cases that finding was not put in issue, the respondent conceding that (presumably having regard to the question there being determined as to the application for an extension of time for the respective causes of action), her Honour was required to accept, on the authority of TC v State of New South Wales [2001] NSWCA 380, that the respondent owed to the appellants a duty of care in the discharge of the mandatory requirements of s 148B of the Child Welfare Act once the step-father's sexual abuse had been reported to the Department in April 1983 (see DC v State of New South Wales [2010] NSWCA 15 at [48]). That may explain the stance adopted by the respondent when the proceedings now the subject of appeal were conducted. 12. The respondent's respective defences in the proceedings before the primary judge answered the allegation of the duty of care at [52] by pleading that the scope of any duty of care owed by it was confined by that which arises from the Child Welfare Act (s 148B read with s 158); that in 1983 and 1984 it did not owe a "general duty of care to the plaintiff or a duty of the scope or content apparently contended by the plaintiff"; and otherwise did not admit the allegation. 13. In oral submissions on the appeal, Senior Counsel for the respondent did not suggest that s 148B(5) had not been enlivened. Rather, the submission was that the obligation or duty under s 148B(5) was a duty to consider what is appropriate (Senior Counsel accepting that in so considering there was a duty to exercise reasonable care). The respondent emphasised that there was no mandatory obligation to refer the matter to the police and argued that there was not necessarily an obligation always to consider whether or not to inform the police (see T 82.24-T 84.34). The respondent should in my opinion be bound by the manner in which it contested the proceedings. 14. By way of further observation, I accept that the duty of care owed by the relevant Departmental officers (in this case Ms Quinn's superior officers) in April 1983 included a duty to consider the various courses available (see [55] per Basten JA) though, as I have earlier noted, Senior Counsel for the State did not accept that there was necessarily a duty to consider reporting the matter to the police. There was an inherent inconsistency in the respondent's position in this regard in that, as Basten JA has noted (at [128]), its position before the primary judge was that on the balance of probabilities it should be found that the abuse had in fact been reported to the police. I have already referred to the evidence of Mr Frost on which the respondent relied for that proposition (see [279] above). 15. The primary judge accepted Mr Frost's evidence as to his practice on receipt of reports from his subordinates on allegations of child sexual abuse. Mr Frost attended the 28 April 1983 interview with the appellants' mother, at which she confirmed the complaint as to abuse. In those circumstances, the available inference arising from the finding that the abuse was not reported to the police following that interview is that, for whatever reason, there was a failure to consider/implement (or to exercise reasonable care in the process of considering/implementing) that step. 16. Insofar as Basten JA has referred at [83] to unequivocal evidence (from DC) that the problem of the effect of criminal proceedings affected the thinking of Ms Quinn, the reliability of that evidence was treated by the primary judge with caution. His Honour did not accept that there had been a visit to the police station at that time, that being very much in doubt. There was nothing in the contemporaneous reports to suggest that the impact of notification (or subsequent court proceedings) on the appellants' psychological or emotional state was a matter considered by the Departmental officers handling the case nor that it was a matter that informed any decision on their part not to notify the police. Similarly, the mother's evidence to the Children's Court as to her earlier notification to the police should be treated with caution, not least because of her tendency before that court to seek to downplay the step-father's conduct and the fact that she gave no detail as to what was said to the police on that occasion. 17. Finally, without wishing to revisit matters discussed earlier in these reasons, in my opinion the question posed by Basten JA at [132] must be answered (by reference to Ms Quinn's own reports in September 1983) by saying that the Departmental officers (Ms Quinn and anyone to whom that report was sent) did indeed know that there was a serious risk of ongoing abuse. That was the very basis for the level of concern that was being expressed in the reports to the Children's Court after the interview with the step-father, and Ms Quinn was certainly aware that there was some kind of inappropriate conduct at least between one of the children and the step-father (and the mother's unwillingness or inability to prevent it), she having made reference to it in her report. Orders 1. I propose the following orders: 1. Appeal allowed. 2. In each of proceedings 2008/289325 and 2008/289326 set aside the judgment entered in favour of the first defendant and the orders made on 22 May 2015 by Campbell J (other than the order in relation to the costs of the second defendant of the respective proceedings to the extent that the second defendant has incurred costs separate from those of the first defendant in defending the proceedings) and in lieu thereof order 1. in both proceedings that judgment be entered for the plaintiff against the first defendant. 2. in proceedings 2008/289325 (in which the plaintiff is DC) order the first defendant to pay to the plaintiff damages in the sum of $536,463.60 plus the sum of $790 for interest on past out of pocket expenses (the interest on past out of pocket expenses subject to provision to the respondent's legal representatives of evidence of actual payment of those expenses). 3. in proceedings 2008/289326 (in which the plaintiff is TB) order the first defendant to pay to the plaintiff damages in the sum of $939,435.60 plus the sum of $4,022 by way of interest on past out of pocket expenses (the interest on past out of pocket expenses subject to provision to the respondent's legal representatives of evidence of actual payment of those expenses). 1. Submissions in relation to the question of costs of the appeal and of the proceedings below (no more than 3 pages) to be filed by the parties within 7 days, with the intent that costs orders will be made on the papers. 2. Liberty to the parties to apply within 3 days if there is any arithmetical error in the calculation of the amounts, having regard to these reasons, in accordance with the respective schedules submitted with the supplementary submissions. 1. SACKVILLE AJA: I agree with the orders proposed by Ward JA and, subject to the following, with her Honour's reasons. 2. Both the appellants and the State challenged the contingent assessment of damages by the primary Judge for the injuries attributable to the State's breach of duty. The challenges raise issues concerning losses that are said to be attributable to two causes, one of which gives rise to a right to compensation from a defendant while the other does not. The Civil Liability Act 1. The question of causation is governed by ss 5D and 5E of the Civil Liability Act 2002 (NSW) (CL Act). [117] They relevantly provide as follows: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ( factual causation ), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ( scope of liability ). … (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation." These provisions were not referred to in the parties' written submissions but were referred to in oral argument. 1. As the High Court pointed out in Wallace v Kam, [118] a determination in accordance with s 5D(1)(a) that the defendant's negligence was a necessary condition of the occurrence of harm is entirely factual and turns on proof by the plaintiff of the relevant facts on the balance of probabilities in accordance with s 5E. By contrast, a determination in accordance with s 5D(1)(b), that it is appropriate for the scope of the negligent person's liability to extend to the harm caused, is entirely normative and turns on a consideration of the matters identified in s 5D(4). 2. It appears to be common ground that s 5E of the CL Act is consistent with the principles established by Watts v Rake [119] and Purkess v Crittenden [120] and that those principles continue to apply to claims governed by the CL Act. The joint judgment in Purkess v Crittenden stated the position as follows: [121] "[W]here a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. … [In Watts v Rake] it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence." [Emphasis added.] The Post-April 1983 Abuse 1. The primary Judge found that the correct approach was to treat the harm suffered by each of the appellants and all of the consequences of that harm as "indivisible". [122] The word "indivisible" rather suggests that no distinction can be drawn between the effects of the pre-April 1983 abuse and the post-April 1983 abuse on the psychiatric condition sustained by each appellant. This was not, however, a proposition accepted by his Honour and it is clear that his finding was intended to convey that the post-April 1983 sexual abuse materially contributed to the totality of the harm suffered by each of the appellants. [123] As his Honour found, that harm included serious psychiatric injury in the form of post-traumatic stress disorder (PTSD). 2. Ms Wass SC, who appeared with Mr Harvey for the State, submitted that the medical evidence did not support the primary Judge's finding that the post-1983 abuse (including the post-1983 Departmental neglect) materially contributed to the appellants' psychiatric disabilities. In terms of s 5D(1)(a) of the CL Act, I understood the submission to be that the appellants had not proved on the balance of probabilities that the State's negligence was a necessary condition of the occurrence of harm. In particular, Ms Wass contended that Dr Diamond, a consultant psychiatrist whose reports were tendered on behalf of the appellants, had not directed his attention to whether the post-April 1983 sexual abuse materially contributed to the psychiatric condition of each appellant. For this reason, so Ms Wass contended, it was not open to the primary Judge to find that the State's breach of duty was a necessary condition of the psychiatric harm sustained by each appellant. 3. In my opinion, the State's submission paid insufficient attention to the joint report prepared by Dr Diamond and Dr Champion, the psychiatrist whose reports were tendered on behalf of the State. In the joint report, Dr Diamond stated that the chronic PTSD experienced by each of the appellants arose at the time of the abuse and continued until the joint conference took place. While Dr Diamond found that the appellants' respective psychiatric conditions were exacerbated by the confrontation with their abuser at his criminal trial in 2005, both experts agreed that the cause of the illnesses experienced by the appellants was the childhood sexual abuse itself. The experts also agreed that the long term nature of the sexual abuse and the appellants' inability to be protected from or escape the abuse constituted significant causes of the disease or impairment in each case. 4. For the purposes of the joint report, the experts were specifically asked to consider whether the appellants suffered from a recognised psychiatric injury related to any aspect of their relationship with the stepfather or the State during the period 20 April 1983 to about 1985. The experts expressed different opinions on this question. 5. Dr Champion, who had not actually seen either appellant in person, did not accept that the PTSD was related to the actions of the stepfather or the State during this period. He considered that the commencement of the PTSD was triggered by the stepfather's criminal trial and could not be related specifically to any abuse that occurred after April 1983. 6. Dr Diamond's view was different. He considered that the relationship between the appellants and the stepfather and the State during the period from 20 April 1983 to about 1985 had been "of significant relevance to the evolution and worsening of the chronic [PTSD]". [124] He explained that the experience of both appellants between April 1983 and 1985: "was that they could not be protected and they had to endure further abuse at the hands of the perpetrator. For vulnerable children who were helpless and defenceless in those circumstances, the experience … was that their lives deteriorated further and they became involved in delinquent behaviour, substance abuse, avoidant behaviours, emotional numbing, disordered conduct, disruptive schooling and displacement from a home environment." [Emphasis added.] 1. Dr Diamond also expressed the view that both appellants suffered from chronic PTSD and that their psychiatric condition had been significantly affected by the fact that there had been neither notification to police nor prosecution of the perpetrator of the sexual abuse. In his view, reaction to trauma is "[i]ntrinsic to the development of chronic [PTSD]". In this case, the trauma for the appellants was repetitive and cumulative and included feelings of vulnerability and profound helplessness. During the period from April 1983 to 1985, not only did their mother prove to be incapable and unwilling to protect them from the perpetrator, but the experience of abuse was re-enacted when the authorities also failed to protect them. 2. The primary Judge referred at length to the reports of the two psychiatrists and expressed his preference for the views of Dr Diamond. [125] His Honour considered that it made more sense that the abuse suffered by the appellants over a long period accounted for their severe psychiatric disabilities. [126] He accepted Dr Diamond's opinion that the confrontation between the appellants and the stepfather at the criminal trial in 2005 made manifest their underlying conditions, which had long predated the 2005 trial. 3. Ms Wass invited this Court in effect to adopt Dr Champion's opinion that the appellants' PTSD was attributable to the trauma of the criminal trial rather than to any post-April 1983 sexual abuse. However, in my opinion, no cogent reason was advanced to justify overturning the primary Judge's finding. 4. It is true that Dr Diamond's initial report was prepared on the erroneous assumption that the sexual abuse of the appellants had ceased by April 1983. But when Dr Diamond became aware that the abuse had continued beyond that date, he expressed the clear opinion that the post-1983 sexual abuse and the failure of the authorities to protect the appellants from the continuing abuse during that period of abuse exacerbated the appellants' respective psychiatric disorders. Dr Diamond's opinion was based on a careful analysis of the behavioural and psychiatric history of each of the appellants. Moreover, the primary Judge was entitled to take into account that Dr Champion, unlike Dr Diamond, had never seen either of the appellants. Accordingly, in my view, no error has been shown in the primary Judge's acceptance of Dr Diamond's opinion. His Honour was justified in finding, on the balance of probabilities, that the State's negligence materially contributed to each appellant's psychiatric condition. The State's Liability for Damages 1. Having accepted that the post-April 1983 abuse (and the failure of the authorities to prevent that abuse) materially contributed to each appellant's psychiatric condition, the primary Judge pointed out (at [182]) that this did not mean that the appellants were entitled to be compensated for the entirety of their psychiatric disabilities. His Honour said that it was necessary to acknowledge that their injuries also resulted from the pre-April 1983 abuse, for which the Department (and the State) had no legal responsibility. 2. The primary Judge accepted that the State bore the burden of adducing evidence showing that the appellants suffered from a pre-existing condition at the time the breach of duty occurred. [127] Although his Honour did not explain in detail why he considered that the State had discharged that burden, it is evident that he found that the State had done so. He observed that this was not a case where the appellants were "merely subject to some susceptibility of injury but for the [State's] negligence". In his view, it could not seriously be argued that no injury at all would have occurred had the State not breached its duty of care to the appellants. [128] His Honour concluded that overcompensation could be avoided by applying a discount of 70 per cent on the damages that would have been awarded if the State's negligence had been the sole cause of the appellants' harm. 3. I did not understand the appellants to contend that the State had failed to adduce evidence capable of establishing that the pre-April 1983 abuse suffered by the appellants had contributed to their respective psychiatric conditions. In any event, the evidence of Dr Diamond, to which I have referred and which the primary Judge accepted, was capable of establishing that the pre-April 1983 sexual abuse materially contributed to the underlying psychiatric conditions suffered by the appellants. 4. The submission advanced by Mr Morrison SC, who appeared with Mr Pryde and Mr Morrissey for the appellants, was that the evidence did not justify the primary Judge distinguishing between the consequences of the pre-April 1983 and post-April 1983 abuse. Mr Morrison contended that neither Dr Diamond nor Dr Champion had attempted to identify the extent to which the pre-1983 abuse (for which the State was not responsible) caused the harm suffered by the appellants. He attached particular weight to the observation made in the joint judgment of the High Court in Purkess v Crittenden stating that a defendant, in a case such as the present, must adduce evidence which, if accepted, would "establish with some reasonable measure of precision" what the pre-existing condition was and what its future effects are likely to be. [129] 5. Mr Morrison submitted that the primary Judge failed to address whether the evidence was sufficient to enable him to determine with any precision the condition from which each appellant suffered by reason of the pre-April 1983 abuse and the likely consequences of that condition had the State not been negligent. Mr Morrison further submitted that neither Dr Diamond nor Dr Champion had considered these issues. Accordingly, the primary Judge had no basis for distinguishing between the consequences of the pre-April 1983 abuse and the later abuse. It followed, so Mr Morrison argued, that the State should be held liable for the whole of the damages assessed by the primary Judge and that the primary Judge erred in applying a "discount" of 70 per cent. 6. It is not always easy to apply the language used in Purkess v Crittenden, a case involving degenerative changes in the spine, to cases involving negligence resulting in psychiatric harm or the exacerbation of an antecedent psychiatric disability. As Basten JA observed in State of New South Wales v Burton, [130] precision in such cases, at least in relation to aetiology, "tends to be an aspiration rather than a reality". 7. The starting point for determining the sufficiency of evidence adduced by a defendant in a case such as the present is the statement of principle by Hayne and Bell JJ in Tabet v Gett: [131] "For the purposes of the law of negligence, 'damage' refers to some difference to the plaintiff. The difference must be detrimental. What must be demonstrated (in the sense that the tribunal of fact must be persuaded that it is more probable than not) is that the difference has been brought about and that the defendant's negligence was a cause of that difference. The comparison invoked by reference to 'difference' is between the relevant state of affairs as they existed after the negligent act or omission, and the state of affairs that would have existed had the negligence act or omission not occurred." [Emphasis in original.] 1. It is also necessary to recognise that there is a distinction between the injury or damage which is the gist of the action in negligence (which the plaintiff must prove) and the proper measure of damages (in respect of which a defendant may bear the burden of adducing evidence but not the ultimate burden of persuading the court on the balance of probabilities). [132] The authorities accept that precision in the assessment of damages is invariably difficult to realise and that courts must do the best they can on the evidence before them. [133] 2. As I have noted, at the time Dr Diamond prepared his initial report, he was not asked to assume that the abuse in each case continued after April 1983. Moreover, the main focus of his reports was to identify the time each appellant became aware that she was suffering from PTSD, this apparently being thought relevant to a possible limitations defence. While the circumstances of each appellant were different, Dr Diamond's view was that each had suffered psychiatric injury at the time the stepfather abused her, but had not become aware of her underlying psychiatric condition until much later. Dr Diamond reiterated these views in subsequent reports. 3. In the joint experts' report, prepared after Dr Diamond had been asked to assume that the abuse continued after April 1983, he specifically stated that the chronic PTSD arose in each case at the time of the abuse and had continued throughout the period of abuse and thereafter. Dr Diamond identified the manifestations of PTSD experienced by each appellant over a long period of time and said that each appellant suffered from PTSD during that period even though her condition remained undiagnosed. 4. Dr Diamond and Dr Champion were asked the following questions for the purposes of the joint report: "3. Does the plaintiff suffer, or has she at any time suffered, from a recognised psychiatric injury (in particular post traumatic stress disorder) related to any aspect of her relationship with the defendants or either of them during the period 20 April 1983 to about 1985. … 4. If the answer to Question 3 is "yes". 4a) What aspect of that relationship, if any, relates to that injury." [134] 1. Dr Diamond answered Question 3 by saying that the relationship of the appellants with the State during the period 20 April 1983 to about 1985 was of "significant relevance to the evolution and worsening of the chronic [PTSD]". In answer to Question 4a), Dr Diamond reiterated that the appellants' relationship with the State was "significant with regard to the evolution, maintenance and worsening of the chronic [PTSD]". 2. Dr Diamond's answer to Question 4a) is elaborated in the passage I have quoted earlier. [135] In that passage he explained the manner in which the abuse and neglect between April 1983 and 1985 affected the behaviour and emotional functioning of each appellant. 3. In my view, the evidence adduced by the State was sufficient to enable the Court to determine, in accordance with the relevant principles, the extent to which the State's negligence contributed to the psychiatric disabilities suffered by each appellant. No doubt more specific questions could have been asked of the psychiatrists and, if asked, might well have elicited from Dr Diamond a more precise analysis of the likely progression of each appellant's PTSD had the State's negligence not led to a continuation of the sexual abuse after April 1983. But given the nature of the Court's task in assessing damages, I think that the evidence adduced was sufficient to enable the primary Judge to assess damages. 4. As Ward JA has explained, there is room for debate as to how damages should be assessed once it is established that a plaintiff suffered from a pre-existing psychiatric disability which was exacerbated or intensified by the defendants' negligence. It is neither necessary nor desirable to address these issues in the present case. Ms Wass accepted that if this Court rejected the State's argument that the post-April 1983 abuse did not contribute to the appellants' psychiatric disabilities, the primary Judge's contingent assessment of damages by reference to a discount of 30 per cent should not be disturbed. Mr Morrison also accepted that if the appellants were unsuccessful in their contention that there should be no discount, the 30 per cent figure should stand. 5. Subject to the questions of quantification to which Ward JA has referred, the primary Judge's approach to the assessment of damages should not be disturbed. Additional Observations 1. Since preparing the foregoing, I have had the opportunity to read Basten JA's judgment. I make the following points, which accord with the views expressed by Ward JA. 2. I did not understand the State to challenge the proposition that the Director's powers or duties under s 148B(5) of the Child Welfare Act 1939 (NSW) (CW Act) had been enlivened. The Notice of Contention does not seek to uphold the primary Judge's decision on the ground that his Honour should have found s 148B(5) was not engaged. 3. In the primary Judge's summary of his decision, [136] the first conclusion is stated as follows: "The Department owed each of TB and DC a duty actionable under the law of negligence to use reasonable care in the exercise of its powers conferred by s 148B(5) CW Act." 1. In argument before this Court, Ms Wass stated that this conclusion was "of course, uncontroversial". [137] Ms Wass then contended that s 148B(5) did not assist the appellants because the Director had a discretion to report abuse to the police and the State's duty to take reasonable care was not breached by the Director's failure to exercise his discretionary power. Ms Wass did not argue that the Director did not have power to report the abuse to the police. Her position was consistent with the State's Notice of Contention which is drafted on the assumption that the State had a legal duty to take reasonable care in the exercise of its powers under s 148B(5) of the CW Act. 2. In any event, the State did not dispute that it owed a duty of care to the appellants that required it to exercise reasonable care in the exercise of its statutory powers, including those conferred by s 148B(5) of the CW Act. While the Notice of Contention did challenge the finding that the State breached its duty of care by omitting to notify the police of the abuse suffered by the appellants, the existence of a duty of care was not in dispute. 3. The State's challenge to the finding of breach of duty did not raise questions of principle, but was fact specific. The principal contention advanced by the State was that the evidence did not justify the primary Judge's finding that the Department had failed to report the abuse to the police. Ward JA has addressed that argument in detail. 4. The State did not contend that the finding that Ms Quinn had not breached the duty of care she owed to the appellants meant that the Department could not be found to have breached its duty of care to the appellants. The primary Judge distinguished Ms Quinn's position from that of the Department in a passage which was not challenged on appeal: [138] "I am not of the view that the District Officer owes any corresponding or concurrent duty. I accept that as a social worker the District Officer, like other professionals, may owe a duty of care to persons to whom she provides professional services … But this is not the current field of discourse. The case pleaded and argued against the District Officer is that she owed the [appellants] duties having the same content as the duty asserted to be owed by the Department. In my judgment, this is misconceived. The specific statutory powers, the existence and engagement of which are essential, but insufficient, conditions of the imputation of the duty, are conferred upon the Director of the Department and not upon its individual and subordinate officers, even if in other areas (for example s 76 CW Act), authorised officers may have independent functions or powers." 1. The State's submissions accepted the primary Judge's finding that Ms Quinn was not responsible for the exercise of the statutory powers or discretion under s 148B(5)(b) of the CW Act. [139] The State relied on Ms Quinn's evidence that she would have recommended to Mr Frost that the matters be referred to the police in support of its contention that the Department probably reported the abuse to the police. In taking this course, the State's submissions distinguished between the scope of Ms Quinn's duty to take reasonable care to protect the appellants and the Department's duty to take reasonable care. 2. The appellants' case against the State did not rest on establishing that Ms Quinn breached the duty of care owed to the appellants by failing personally to report the abuse to police. The appellants' claim was that the Department breached its independent duty of care by failing to report the abuse. The State's submissions accepted, at least implicitly, that there might be circumstances in which a failure to report abuse to police would constitute a breach of the Department's duty of care owed to children for whom it had responsibility. The debate at the trial essentially turned on whether, in the particular circumstances of the case, the Department had done enough to discharge its duty of care without reporting the stepfather's abuse to police. 3. I should add that although the State raised the issue of causation in relation to the damages claimed by the appellants, it did not raise other issues of causation. The Notice of Contention did not include a ground that had the Department reported the abuse to the police, charges would not have been laid or, if laid, would not have prevented the stepfather continuing to abuse the appellants. The State's written submissions referred to what was said to be an absence of evidence as to what the Child Mistreatment Unit of the New South Wales Police would have done had a report of abuse been made. But I understand that reference to be intended to support the State's contention that a report was probably made even if there was no evidence that the police took any action in relation to the stepfather. ********** Endnotes 1. Repealed, 29 May 1987, by the Miscellaneous Acts (Community Welfare) Repeal and Amendment Act 1987 (NSW), s 3. 2. TB v State of New South Wales; DC v State of New South Wales [2015] NSWSC 575 (Campbell J). (Paragraph numbers used below are those to be found in the on-line version, not in the hard copy provided to the parties.) 3. Second further amended statement of claim, par 52(a). 4. Second further amended statement of claim, pars 46 and 52. 5. Bowman v Farnell (1886) 7 NSWR 1; Farnell v Bowman (1887) 12 App Cas 643; Maguire v Simpson (1977) 139 CLR 362. 6. Second further amended statement of claim, par 53. 7. Judgment at [111]. 8. Second further amended statement of claim, par 56. 9. Judgment at [7]. 10. Judgment at [32]. 11. Appellants' submissions in reply, 15 February 2016, par 31. 12. (2007) 234 CLR 330; [2007] HCA 42. 13. Dederer at [47]. 14. Dederer at [43]. 15. (1998) 192 CLR 431; [1998] HCA 5. 16. cf Nagle (1993) 177 CLR 423 at 429-430. 17. Romeo at [149]. 18. A "young person" was aged 16-18; a child was under 16. As the appellants were under 16 at the time of the alleged negligence it is sufficient to refer to the provisions as they applied to children. 19. Child Welfare Act, s 4(1) "Uncontrollable". 20. Child Welfare Act, s 73. 21. Child Welfare Act, s 78. 22. Child Welfare Act, ss 133 and 134. 23. Child Welfare Act, s 146(1). 24. See marginal note. 25. Child Welfare Act, s 4(1), "Director". 26. Judgment at [19]. 27. [1943] 2 All ER 560. 28. See Clarke v Bailey (1933) 33 SR (NSW) 303 at 309 (Davidson J, Street CJ and James J agreeing). 29. (1935) 35 SR (NSW) 182 at 188-189. 30. These construction issues appear to have been resolved in the current law, being Ch 3 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). 31. Board of Fire Commissioners of New South Wales v Ardouin (1961) 109 CLR 105. 32. See now, Children and Young Persons (Care and Protection) Act 1998 (NSW), s 9(1). 33. Judgment at [47]. 34. Judgment at [14]-[32]. 35. Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 at [21] (Gleeson CJ), [43] (Gaudron J), [117] (Hayne J), [147] (Callinan J). 36. X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 739 (Lord Browne-Wilkinson), quoted in Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at [30] and [59]. 37. (2009) 239 CLR 420; [2009] HCA 48. 38. Adeels Palace at [25]. 39. Adeels Palace at [26]. 40. cf Pyrenees Shire Council v Day (1998) 192 CLR 330; [1988] HCA 3 at [122] . 41. Pyrenees Shire Council at [122]. See also Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54 at [78]-[80] (McHugh J). 42. (2009) 237 CLR 215; [2009] HCA 15. 43. Stuart at [5] (French CJ), [149]-[150] (Crennan and Kiefel JJ). 44. Stuart at [107]. 45. Stuart at [114]. 46. (2002) 211 CLR 540 per Gummow and Hayne JJ (citations omitted). 47. (2001) 207 CLR 562; [2001] HCA 59. 48. Sullivan at [60]. 49. Sullivan at [62]. 50. [1995] 2 AC 633. 51. Sullivan at [30]. 52. X (Minors) at 750; Sullivan at [30]. 53. [2015] UKSC 2. 54. [2008] 3 NZLR 725. 55. [1995] 2 AC 296. 56. Michael at [71]. 57. [2009] 1 AC 225. 58. See Michael at [56]. 59. Smith at [44]. 60. Michael at [144]. 61. Michael at [102]. 62. Civil Liability Act, s 43A(3). 63. Tcpt, 4 March 2016, p 86-87. 64. At [69]. 65. Ex A48 (statement of 22 April 2014) par 47. 66. Ex A29 (statement of 1 June 2002) par 36. 67. Tcpt, 13/08/14, pp 230-232. 68. Judgment at [101]. 69. Judgment at [164], set out at [149] below. 70. Judgment at [27]. 71. Above at [23]. 72. Judgment at [104]. 73. Judgment at [107]. 74. Judgment at [106] and [109]. 75. Judgment at [110] and [112]. 76. Judgment at [111]. 77. Tcpt, p 380(45). 78. Tcpt, p 381(1)-(20). 79. Tcpt, p 382(1)-(7). 80. Judgment at [47]. 81. See Guidelines, par 1.1 at judgment, [47], [48] and [50]; see [57] above. 82. Guidelines, par 3.1.3. 83. Guidelines, par 3.2.2. 84. Judgment at [62]. 85. Judgment at [61]. 86. Judgment at [102]. 87. Judgment at [58] and see [60]. 88. Judgment at [113]. 89. Judgment at [117]. 90. Judgment at [119]. 91. Judgment at [144]. 92. Judgment at [162]. 93. Statement at par 83. 94. Statement at par 86. 95. Statement at pars 37, 38. 96. Statement at pars 40-43. 97. Statement at par 82. 98. Judgment at [125]. 99. Judgment at [136]. 100. Judgment at [137]. 101. Judgment at [140]. 102. Judgment at [142]. 103. Exhibit A.48 at [51]-[59]. 104. Judgment at [145]. 105. Judgment at [149]. 106. Judgment at [156]. 107. Judgment at [162]. 108. Psychological report, 28 August 06, pp 2-3. 109. Tcpt, 13/08/14, p 244. 110. Judgment at [163]. 111. Judgment at [164]. 112. (2003) 214 CLR 118; [2003] HCA 22. 113. [2016] HCA 22 at [43]. 114. Judgment at [185]. 115. (1960) 108 CLR 158. 116. (1965) 114 CLR 164. 117. Part 1A of the CL Act extends to civil liability arising before the date of commencement of Pt 1A unless proceedings were commenced before that date: CL Act, Sch 1 Pt 2 cl 6(1). 118. [2013] HCA 19; 250 CLR 375 at [14] (per curiam). 119. [1960] HCA 58; 108 CLR 158. 120. [1965] HCA 34; 114 CLR 164. 121. [1965] HCA 34; 114 CLR 164 at 168 (Barwick CJ, Kitto and Taylor JJ). 122. TB v State of New South Wales [2015] NSWSC 575 at [181] (Primary Judgment). 123. Primary Judgment at [181]. 124. Emphasis added. 125. Primary Judgment at [190], [195]. 126. Primary Judgment at [190]. 127. This is evident from the reference in the Primary Judgment at [183] to Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1 at [105]-[106] where Ipp JA cited Watts v Rake [1960] HCA 58; 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; 114 CLR 164. 128. Primary Judgment at [184]. 129. See [4] above. 130. [2006] NSWCA 12 at [76]. See also State of New South Wales v Burton [2008] NSWCA 319 at [34]. 131. [2010] HCA 12; 240 CLR 537 at [66]. 132. Tabet v Gett at [23] (Gummow ACJ). 133. See Tabet v Gett at [39] (Gummow ACJ). 134. The reference to "the defendants" is to the State and Ms Quinn. As Ward JA has noted (at [173], Ms Quinn is not a party to the appeal. 135. See at [383] above. 136. Primary Judgment at [7]. 137. Transcript of Proceedings, DC v State of New South Wales (Court of Appeal of New South Wales, Basten, Ward JJA and Sackville AJA, 3-4 March 2016) at 82. 138. Primary Judgment at [31]. 139. Respondent's Amended Submissions at [40]-[41]. Amendments 10 August 2016 - Typographical error to Headnote 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. Decision last updated: 15 August 2016