The evaluation of the duty of care owed by the State to a Claimant at common law must commence with consideration of the relevant legislation that conferred statutory powers upon the State.
Relevant legislation provides that a child or young person is at risk of harm if current concerns exist for the safety, welfare or well-being of the child or young person because of the presence of any one or more of the following circumstances:
a) The child’s or young person’s basic physical and psychological needs are not being met or are at risk of not being met.
b) the child or young person has been, or is at risk of being, physically or sexually abused or ill-treated.
c) a parent or other caregiver has behaved in such a way towards the child or young person that the child or young person has suffered or is at risk of suffering serious psychological harm.
Removal of the child or young person from his or her usual caregiver may occur only where it is necessary to protect the child or young person from the risk of serious harm.
In DC v State of NSW [ 2010] NSWCA 15 the New South Wales Court of Appeal held, the director was required to take such action as he believed appropriate, which included reporting matters to the police. The allegation in DC was essentially that had the matters being reported to police, the plaintiffs would have been spared further harm.
Claims against the State require careful consideration and special attention. McLaughlin & Riordan is experienced in these matters and can provide appropriate advice and direction.
