16 June 2021: A Novel Duty of Care – Implications for State Wardship and the Department’s Duty
In the recent case of Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment  FCA 560 (Sharma), the Federal Court of Australia handed down a decision, finding that the Australian Government owed a Duty of Care to Australian children to protect them from climate change in making a decision as to whether to approve a new mine.
This decision discusses novel duties of care and the applicable legal principles for ascertaining whether a novel duty of care exists. In some of our ward of state claims, an issue regularly arises as to whether the State should have removed a child from an abusive family situation at an earlier time or indeed whether a child should have bene returned to an abusive family after concerns have arisen.when the State was arguably aware that a particular child was at risk of serious harm.
Whether a novel duty of care exists is to be ascertained by reference to a multi-factorial assessment in which considerations (salient features) relevant to the appropriateness of imputing a legal duty upon the putative tortfeasor are assessed and weighed. A salient features approach was adopted by Allsop P (with whom Simpson J agreed) as applicable to determining whether a novel duty of care exists in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649, at . His Honour set out a list of seventeen salient features. They are these:
(a) the foreseeability of harm;
(b) the nature of the harm alleged;
(c) the degree and nature of control able to be exercised by the defendant to avoid harm;
(d) the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;
(e) the degree of reliance by the plaintiff upon the defendant;
(f) any assumption of responsibility by the defendant;
(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;
(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;
(i) the nature of the activity undertaken by the defendant;
(j) the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant;
(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;
(l) any potential indeterminacy of liability;
(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;
(n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests;
(o) the existence of conflicting duties arising from other principles of law or statute;
(p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and
(q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.
As Spigelman CJ in Presland said at , the salient features approach to the exercise of a statutory power is exemplified in the joint judgment of Gummow J and Hayne J in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 (later endorsed by Gummow, Hayne and Heydon JJ in Stuart at -) where at - their Honours said this (footnotes omitted):
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.
Where the question posed above is answered in the affirmative, the common law imposes a duty in tort which operates alongside the rights, duties and liabilities created by statute.
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.
Two important points should be emphasised from that passage. First, whether a duty is owed by a statutory authority requires a close examination of the terms, scope and purpose of the relevant statutory regime. Second, whilst the ultimate question is whether a requisite relationship exists between the statutory authority and a class of persons, the criteria for assessing whether that relationship exists, and thus whether the tort of negligence will intervene, is to be found in the salient features of that relationship.
Spigelman CJ who at  of Presland stated that four matters (salient features) of significance came out of the above passage:
(a) the purpose to be served by the exercise of the power;
(b) the control over the relevant risk by the repository of the power;
(c) the vulnerability of the persons put at risk; and
It is necessary, however to bear in mind, that it is “[t]he totality of the relationship between the parties … [which] is the proper basis upon which a duty of care may be recognised”. Whether a requisite relationship which gives rise to a duty of care is established must be assessed by reference to all the relevant salient features, although the starting point should be the statute and the nature of power conferred upon the respondent.
(1) The approach to determining whether a duty of care exists is multi-factorial.
(2) The seventeen factors listed by Allsop P in Stavar are a valuable checklist as to the kinds of matters that may be relevant in a multi-factorial analysis. But they are not exhaustive, not all considerations will be relevant in each case, and the considerations that are relevant will be of various weights.
(3) The case where the respondent is a repository of statutory power or discretion is a special class of case, which raises its own problems. However, the correct approach remains multi-factorial.
(4) In such cases, however, certain factors listed in Stavar assume especial relevance. Coherence with the statutory scheme and policy considerations are of critical importance. So, too, may be control, reliance, vulnerability, and the assumption of responsibility.
The applicants in Sharma emphasised the degree and nature of control able to be exercised by the Minister to avoid harm (‘control’), the vulnerability of the Children (‘vulnerability’), the reasonable foreseeability and nature of the harm (‘reasonable foreseeability’) as well as a recognised category of relationship between the Minister and the Children (‘recognised relationship’) as of especial importance. They contended that each of those salient features supported the recognition of the posited duty of care.
His Honour concluded that ‘Coherence’, ‘control’, ‘vulnerability’ and ‘reliance’ all assume especial relevance in an assessment of whether a novel duty of care should be recognised. On the present facts, His Honour regarded ‘coherence’ as agnostic, but even if it is to be treated as tending against the recognition of a duty of care, ‘control’, ‘vulnerability’ and ‘reliance’ are affirmative of a duty being recognised and significantly so. ‘Indeterminacy’ and the policy considerations dealt with under the heading “Other Control Mechanisms” are also largely agnostic but if they tend in any direction, it may be said that they tend against a duty being recognised. ‘Reasonable foreseeability’ strongly favours the recognition of duty of care. In totality, His Honour viewed, the relations between the Minister and the Children answer the criterion for intervention by the law of negligence.
Implications for Wards of the State
In matters involving Wards of the State, we often allege two causes of action against the State of Victoria:
1. A breach of duty asserted against the State in relation to the events and conduct occurring over a period described as “the pre-wardship period” (first cause of action); and
2. A breach of duty asserted against the State and/or other organisations in relation to events and conduct occurring during ‘the wardship period’ (second cause of action).
The first cause of action is alleged in circumstances where the State of Victoria is put on notice that a child may be in need of care and protection under the relevant legislation at the time. The State of Victoria then fails to investigate the need for care and protection and allows the child to experience ongoing assaults and/or neglect due to the failure of the State to remove the child from ‘pre or post-wardship environment’.
The State of Victoria is often resistant to claims involving the first cause of action. It argues that the statutory duties, as applicable at the time, are not the source of power in relation to bringing a Protection Application or Guardianship Order once put on notice that a child may be in need of care and protection under that Act. The State also argues that the relevant legislation does not impose or require any servant or agent of the State to make a 'preliminary investigation' as to whether the child’s circumstances were sufficient to inform proper consideration of whether to exercise the powers of removal under the legislation.
The decision by the Federal Court provides is a helpful one in shooting home liability for for the State’s failure to take appropriate action when a child is experiencing neglect and/or abuse during the ‘pre-wardship period’.
By David Longano
 Graham Barclay Oysters at  (McHugh J) and at  (Kirby J); Stuart at  (Gummow, Hayne and Heydon JJ); Sullivan v Moody - (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ)
 Gummow and Hayne JJ observed at  of Graham Barclay Oysters
 Stavar at -; Makawe at , –; Hoffmann at , -; Carey at -; Brookfield at 
 Hoffmann at ; Carey at 
 Carey at ; Stavar at 
 Sullivan v Moody at ; McKenna at -
 Presland at , -; Becker at  and ; Stuart at -
 Stuart at ; Presland at ; Crimmins at ; Graham Barclay Oysters at 
 Stuart at ; Graham Barclay Oysters at , , ; Presland at ; Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 486 (Brennan J) and 498 (Deane J); Pyrenees Shire Council v Day (1998) 192 CLR 330 at  (McHugh J) and  (Gummow J); Crimmins at , ,  (McHugh J)