Sullivan v Moody
High Court of Australia · 2001
Sullivan v Moody (2001) 207 CLR 562
The harm was foreseeable, so surely a duty was owed. Why do courts keep saying it is not that simple?
THE COURT HAS SAID WHAT "WEIGHING FACTORS"
DOES NOT MEAN, and the warning is aimed at exactly the way this proposition is most often used. Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25, the joint reasons of Gageler CJ, Gordon, Steward, Gleeson, Jagot and Beech-Jones JJ. At [36] their Honours quote this case: "[d]ifferent classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care ... The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle."
THEN THE LIMIT, at [37]: that reference to "factors ... for or against" recognition of a duty in a novel case "should not be understood as inviting any form of 'instinctive synthesis' of competing considerations 'without a chain of reasoning linking these factors with the ultimate conclusion'". And their Honours say what is required instead: "[t]his is why an incremental and analogical approach, paying close attention to relevant precedents and any risk of incoherence in the principles they establish, is necessary."
WHAT TO DO IN AN ANSWER, because this is the difference between a pass and a good mark on a novel duty question. Naming salient features and announcing a conclusion is the thing [37] refuses. Work from the closest precedents outwards, say which feature does which work, and show the chain from the features to the conclusion -- including where recognising the duty would be incoherent with principles already established. Paragraphs [36]-[37] precede Edelman J's separate reasons at [58] and so are the joint reasons'.
AND ONE JUSTICE WOULD CONFINE THE APPROACH AS NARROWLY AS POSSIBLE. Mallonland, EDELMAN J. He applies it, and says why only reluctantly: at [59] the salient features approach "has been strongly criticised", but "the respondent producer did not challenge Caltex or its progeny", so he agrees with its application and with dismissing the appeal -- while adding that the recognition of a duty to avoid pure economic loss in circumstances of salient features "has given rise to the highly unsatisfactory state of the present law with the effect that until Caltex and its progeny are challenged or rationalised, a duty of care based upon 'salient features' must be confined as narrowly as possible". He repeats that at [104].
HIS CRITICISM IS WORTH KNOWING BECAUSE IT NAMES WHAT THE APPROACH REPLACED. At [93]: the approach is "on one view, little more than an insistence that each case will turn upon its own facts, with undetermined and indeterminate salient features relevant to a relationship to be identified from those facts", which is "indistinguishable from an assessment of 'proximity', which was, for a time, the approach that was at the forefront of cases concerning novel duties of care in Australian law". A student who knows that proximity was abandoned and that salient features is said to be proximity under another name has something to say about the approach rather than only within it.
THE LIMITS: these are the reasons of one Justice of seven, he applied the approach rather than declining to, and his criticism is directed at PURE ECONOMIC LOSS cases descending from Caltex rather than at novel duty questions generally. This case's proposition stands; what is contested is how far the approach should reach and how much it explains.
What happened?
Two appeals, heard together, by fathers suspected of sexually abusing their children after examinations at a sexual assault referral centre. In Thompson, doctors examined the three boys at the Department of Community Welfare's instigation and reported apparent abuse; departmental officers investigated, agreed, and referred the matter to police, who charged him. The charges were dropped, and he alleged shock, psychiatric harm and consequential loss ([4]–[6]). In Sullivan, a doctor at the centre examined the daughter and concluded she had been sexually abused; two social workers were also defendants, the negligence alleged against all three being in the examination of the child and the investigation of the possibility of abuse. No charges were ever laid, but the allegations were believed by his wife, broke up the marriage, and were pursued in the Family Court, which resolved them in his favour ([11]–[12]). Each father sued in negligence. Both statements of claim were struck out for disclosing no cause of action, so everything below rests on what was pleaded rather than on findings ([3]), and both appeals were dismissed ([1], [66]).
What did the Court decide?
No duty was owed. The joint judgment (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ) declined to resolve the question by any general formula — the Caparo three-stage approach "does not represent the law in Australia" ([49]), and different classes of case throw up different problems: harm caused directly by a third party's crime, a defendant exercising a statutory power, an indeterminate class of plaintiffs, or the coherence of a statutory scheme ([50]).
Here the problem was coherence. The people who reported their suspicions "had other responsibilities", and a duty "should not be found if that duty would not be compatible with other duties which the respondents owed" ([55]). That is not a rule against concurrent duties — a doctor may owe a duty to more than one person, and competing obligations only matter if they are irreconcilable ([60]). But the scheme in the background was one for the protection of children and required the respondents to treat the children's interests as paramount, and a duty to take care to protect the very people suspected of being the source of the harm could not be reconciled with it ([62]).
Proposition
What is the principle?
Novel duty of care questions are resolved by weighing multiple salient features of the relationship between the parties, not by applying one single test such as reasonable foreseeability alone.
Why does this case matter?
Notice what the plaintiffs were: fathers against whom the allegations had come to nothing — one never charged, one charged and then not prosecuted. On the allegations the Court was required to accept, each had suffered real harm that was entirely foreseeable to anyone making the report, and each still lost at the pleading stage — not on the facts, not on breach, but because the claim could not be put at all. That is the practical force of the decision, and it is why the case is usually met as an obstacle rather than a framework.
It also tells you where to spend your effort. The Court was explicit that this is not decided "by reference only to some intuitive sense of what is 'fair' or 'unfair'" ([53]), and the reasoning it did use ran outward from tort: analogy with other categories, indeterminacy, the intersection with defamation — where privilege already resolves the competition between reputation and free reporting, and negligence would resolve it "on an altogether different basis" ([54]) — and then the statutory responsibilities the defendants were actually under. An argument in this territory that never opens the empowering legislation, or never asks which other body of law already governs the complaint, is missing half of what the Court used.
Exam and application relevance
For an established category, say so and move on — this analysis is for novel ones. When it is novel, name the features and argue each: vulnerability, control, assumption of responsibility, indeterminacy, and coherence with the defendant's other obligations. A list without argument reads as a list. On coherence, do not stop at showing the defendant owed someone else a duty: [60] requires you to show the two would be irreconcilable, and a defendant may owe several duties at once. Identify the statute, say what it required, and show what taking care of your plaintiff would have cost that requirement.
Check your understanding
The doctors plainly owed duties to the children they examined. Why was that not by itself a reason to deny a duty to the fathers, and what more did the Court need?