SullivanvMoodyarticle Essay Example

by the High Court of Australia and the Supreme Court of Canada may not be very helpful in New Zealand. There is still a lot of uncertainty when it comes to the duty of care and more clarity is needed from our appellate courts. Sullivan v Moody is a case that highlights the confusion and uncertainty surrounding this issue in Australia. Historically, Australia has struggled to balance the development of the duty of care based on general principle with incremental development of existing liability categories. Up until the mid-1900s, Australia favored the former approach. The existence of a duty of care in new situations was determined by examining the relationship of proximity between the plaintiff and defendant. This approach considered proximity as having independent significance in determining the duty of care, but it was not an easy concept to articulate.The meaning of proximity as a determinant of liability in negligence has been debated by judges in recent times. While some judges have expressed doubt about its usefulness and have questioned the concept's articulation, others maintain that it is necessary to consider more than mere verifiability when determining a duty of care. This debate can be seen in various cases, such as Gala v Preston (1991) 172 CLC 243 at 253 and Bryan v Maloney (1995) 182 CLC 609 at 618, Hill v van Erp (1997) 188 CLC 159, Romeo v Conservation Commission of the Northern Territory (1998) 192 CLC 431, and Agendas Finance Corporation Ltd v Peat Amharic Hundredfold (1997) 188 CLC 241. While some members of the High Court support a general principle of liability, others have rejected the concept of proximity outright. Thus,

the Court has not been unified in its interpretation.

The recent court decision of Peer v Band Pity Ltd ((1999) 164 ALARM 606) highlights the extent of uncertainty and embarrassment within the legal system, particularly seen through the seven judgments presented. However, the unanimous decision in Sullivan v Moody attempts to bring order to this "doctrinal chaos" (Whiting "The three-stage test abandoned in Australia - or not?" (2002) 118 LLC 214 at 214). This decision comes after two separate appeals were brought before the court, both involving allegations of negligent investigation in sexual assault cases. In Thompson v Cocoon, the plaintiff's sons underwent an examination at a sexual assault center and were found to have been likely sexually abused. This information was given to the Department of Community Welfare, who conducted their own investigation before the plaintiff was later charged with various sexual offenses by the police, although these charges were later dropped. As a result, the plaintiff claims to have suffered psychiatric harm alongside personal and financial loss.

The Sullivan cases had similar facts, but the police did not press charges against the plaintiff for criminal conduct. However, the investigation caused his marriage to break down. Both cases alleged that doctors and social workers had a duty of care in their examinations, investigations, and communication of abuse suspicions. The hospital and state were held vicariously liable for any breach of this duty by the doctors or social workers. The State was also alleged to have breached a separate duty of care in investigating sexual abuse claims. The High Court revisited the issue of how to approach the duty of care in

new fact scenarios and rejected proximity as a concept that informs the inquiry into the duty of care. The court acknowledged the centrality of proximity in this area of discourse but stressed that it provided little practical guidance in cases where no duty had yet been established.

The function of expressing the issue at hand gives the inquiry focus, but when used as a means of reasoning towards a conclusion, its utility is limited. The court provided an example to demonstrate this limitation in relation to the current case (at 414): The question of proximity between the medical personnel who examined the children and the fathers suspected of child abuse may provide a convenient way to phrase the ultimate question in the case, but it does not aid in determining how to answer that question.