State of Tasmania v MFC [2021] TASFC 6 (on Jade).
In 2013 the respondent MFC and his partner used their home as a foster home for five boys, and on various occasions in January and February 2013, the 14 year old brother of two of the boys in foster care stayed overnight at the home. The child accused MFC of sexually assaulting him and the allegaton was reported to the Department of Health and Human Services (the Department). A police investigation followed which resulted in a decision not to bring charges. The Secretary of the Department was empowered under the Children, Young Persons and Their Families Act 1997 (the Act), s 18, to conduct an assessment as to the circumstances of a child reasonably believed or suspected to be at risk. The task of undertaking the assessment was delegated to an officer of the Department. Notwithstanding the decision of the police not to bring charges, the officer published a report which implied that MFC had sexually abused the child. The result was that the five foster children then in the care of MFC and his partner, were removed from the foster home as a result of which the MFC suffered economic loss. (at [6]).
The primary judge dismissed an application by the State to have the claim struck out. This matter saw an unsuccessful appeal from that decision. The State failed to establish the “very clear” case required to justify a summary dismissal of the claim with respect to misfeasance in public office (at [41]).
The claim against the State was in two parts: firstly for misfeasance in public office and secondly in negligence.
Of particular interest is the negligence claim. MFC asserted that the relevant Minister, and those acting on behalf of the Minister (including the officer), owed a duty of care to the children who resided with MFC. That included a duty in preparing and disseminating the assessment “to take reasonable care and use reasonable diligence, so as not to cause the children unnecessary damage such as causing their supportive family environment with the MFC and his partner to be broken up“. (at [43]). Unsurprisingly the State submitted that the claim against the State in negligence cannot succeed because the law does not impose a duty on the officer conducting the assessment, who is bound to act in the best interests of the child, to exercise care “for the interests of another class of person”, if that duty would impose on the officer conflicting claims or obligations. The appellant contended that the claim cannot survive in view of the decision of the High Court in Sullivan v Moody. [46]
There is a clear conflict between the interests of the child, whose treatment at the hands of the respondent was being investigated, and the duty which the respondent contends was owed to him. However, the respondent seeks to argue at trial that the principle enunciated in Sullivan v Moody (above) is applicable to the particular facts in that case, and does not exclude the development of the law to be applied to entirely different circumstances. In this context it is relevant to note the qualification in the judgment that inconsistent obligations would “ordinarily” be a reason for denying the existence of the duty for which the respondent contends. The respondent seeks to argue that the key difference is found in the duty owed by the officer to the children living with the respondent. (at [50)].
The Court held (per Martin AJ with Blow CJ and Wood J agreeing) that the State’s argument based on Sullivan v Moody is strong, but bearing in mind that the categories of duty are not closed, “a novel ‘piggy back’ duty relating to economic loss caused by complaints of child sexual abuse in the particular factual circumstances of this case is at least arguable”. ([51]).