Duty of care in novel cases: Sullivan v Moody

The case

Fathers suspected of child sexual abuse sued the doctors and social workers who had examined their children and reported on the allegations. In Sullivan v Moody [2001] HCA 59 the High Court held that no duty of care was owed to the suspected parent. A duty to the suspect would conflict with the professionals’ duty to protect the child, and with the statutory scheme under which they acted.

Coherence

The decisive reason was incoherence: the law should not impose a duty that would pull a person in a direction inconsistent with another duty they owe, or with the purpose of a statutory scheme. Coherence reasoning is now routinely applied to public authorities and professionals acting under statute.

The salient features approach

In novel cases, intermediate appellate courts reason from a multi-factor list of salient features. In Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258 Allsop P collected them, including:

• the foreseeability of harm and its nature;
• the degree and nature of control able to be exercised by the defendant;
• the plaintiff’s vulnerability, and their ability to protect themselves;
• the degree of reliance, and any assumption of responsibility;
• the proximity of the parties;
• the existence of a category of relationship in which a duty is recognised;
• the nature of the activity, and the content of any statutory or other legal obligations;
• consistency and coherence with other legal principles, and policy considerations.

Frequently asked questions

Sources

• Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562
• Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258