On 15 July 2025, the Supreme Court of Queensland delivered its decision in AZW v State of Queensland [2025] QSC 161, which addresses the question as to whether an institution can be held liable for harm caused by a former employee or volunteer after their formal engagement ends. The decision provides critical guidance on pleading duty of care, breach, and causation in negligence claims involving third-party misconduct following termination of their employment.
Background
The plaintiff alleged that he was sexually abused between June and November 1999 by Mr Shane Casey, a former nurse and volunteer Parent Aide (PA) assigned to the family through the Royal Children's Hospital's Parent Aide Unit (PAU). Mr Casey had been recommended by a psychologist, Dr McKenna, to assist the plaintiff's mother in managing her children with complex behavioural issues.
Mr Casey was engaged as a PA from March to May 1999, during which time he regularly visited the plaintiff's family home and interacted with the children. His engagement was terminated by the PAU coordinator due to a series of concerns, including his failure to report to the PAU coordinator, a general lack of cooperation, and an increasing level of personal involvement with the plaintiff's family that made the PAU coordinator uncomfortable.
It was alleged that the plaintiff's mother was not informed of the termination, or the reasons for it, and subsequently Mr Casey continued to have unsupervised access to the family. This included overnight stays, during which the alleged abuse occurred.
The plaintiff claimed that the State, through its agents (Dr McKenna and the PAU coordinator), owed a duty of care to warn his mother of Mr Casey's termination and the reasons for it and that a failure to do so resulted in the abuse and subsequent psychiatric harm.
The plaintiff alleged that the State breached that duty by failing to (among other things):
- inform the plaintiff's mother of Mr Casey's termination and the reasons for it.
- direct Mr Casey to cease contact with the family.
- warn the plaintiff's mother that Casey's overnight stays and continued involvement were inappropriate.
- investigate Casey's background and supervise his conduct.
Pleadings
The State applied to strike out the plaintiff's Further Amended Statement of Claim under rule 171 of the Uniform Civil Procedure Rules 1999 (Qld), arguing that because the abuse occurred after Casey's engagement had ended, the pleading disclosed no reasonable cause of action.
The plaintiff opposed the application, asserting that the duty to warn and the relationship of proximity were sufficiently pleaded.
The Court was asked to consider whether:
- the State had a duty to protect the plaintiff, even though the alleged abuse happened after Mr Casey stopped working with them.
- the State should have told the plaintiff's mother that Mr Casey had been let go, and why.
- the plaintiff pleaded clearly enough how the abuse could have been avoided if the defendant had acted differently.
- the pleading should be struck out in whole or in part, and whether leave to replead should be granted.
Decision
The Court reaffirmed that a duty of care exists between two parties when there is a sufficiently proximate relationship that a reasonable person would expect one party's actions could cause harm to the other party if they acted carelessly. The challenge in this case was that the abuse occurred after Mr Casey's termination, raising questions about the temporal scope of the duty.
The State relied on authorities such as Collins v Insurance Australia Ltd [2022] NSWCA 135; (2022) 109 NSWLR 240; Geyer v Downs [1977] HCA 64; (1977) 138 CLR 91, and Minister for the Environment v Sharma [2022] FCAFC 35; (2022) 291 FCR 311 to argue that the duty could not extend beyond the period of engagement. These cases highlight that proximity must be evaluated by considering factors such as the level of control, the extent of reliance, and the vulnerability of the affected party. Generally, liability for failing to act is not imposed unless a special relationship exists that gives rise to a duty to intervene.
The Court accepted that the State could not owe a duty to supervise or direct Mr Casey after the termination of his employment. Allegations of breach relating to supervision, training, and audit procedures during his engagement were struck out as they lacked causal connection to the abuse that occurred later. Justice Smith stated at [88]:
"... it is farfetched to say that a training program in March 1999 would have stopped the abuse by a man (with the propensity to molest boys) in the months after he had been terminated, or that [earlier supervision] would have stopped this later abuse... what was the duty during [his] engagement to prevent the likelihood of sexual acts committed by him after his engagement? I conclude there was none."
The Court found it was reasonably arguable that the PAU coordinator and Dr McKenna had a responsibility to inform the plaintiff's mother about Mr Casey's dismissal and the reasons behind it. The Court noted that the defendant was aware of Mr Casey's troubling behaviour, and that the plaintiff's mother continued to rely on Dr McKenna's advice. This ongoing trust, combined with the defendant's knowledge, created a relationship close enough, and with enough vulnerability, to support a duty to provide a warning. Justice Smith stated at [92]:
"It seems to me that where "alarm bells" are raised about conduct like this, it may be argued that there is a duty on the supervisor of such a person to advise a parent of such conduct and even to warn them at that stage to cease contact to avoid a foreseeable risk of injury".
The Court also considered evidence included in affidavits, such as a letter from Mr Casey stating he intended to stay in contact with the family, and a statement from the plaintiff's mother confirming she relied on Dr McKenna's advice and was unaware that Mr Casey had been dismissed. This evidence supported the plaintiff's claim that the lack of communication allowed Mr Casey continued access to the family, which ultimately led to the abuse.
Causation
The plaintiff argued that, if his mother had been warned, she would have either stopped Mr Casey from visiting or limited his access to the family, and the abuse would not have happened. The Court found that this part of the claim did not clearly explain how the failure to warn directly led to the harm, the argument made too big a leap in logic by assuming that a warning would have definitely prevented the abuse.
While the plaintiff acknowledged the need to revise this part of the claim, the Court struck it out but gave permission to submit a new version, noting that a clearer explanation of causation could still be provided.
Leave to replead
The Court chose to exercise its discretion and permitted the plaintiff to amend his pleadings. The Court stressed that the overriding concern is achieving justice, and that a party should not be prevented from pursuing a claim that may have merit.
Justice Smith noted that this was the first time the matter had come before the Court, and that there were still enough allegations to support a potential legal claim. The plaintiff was directed to refine the pleadings to address the issues identified in the judgment.
Implications
This decision provides important guidance on the scope of institutional liability in historical abuse cases, particularly where the alleged misconduct occurs after formal disengagement.
The Court clarified that:
- Institutions are not liable for post-termination conduct unless there is a continuing relationship of proximity.
- A duty to warn may arise where the institution has knowledge of risks and the affected party continues to rely on its advice.
- Causation must be clearly pleaded, including a counterfactual scenario showing how the harm would have been avoided.
For organisations working in child welfare, this decision highlights the importance of communicating clearly with families and to properly document and respond to concerns about staff. Even where someone has left the organisation, failing to pass on relevant information can arguably lead to legal responsibility, especially when vulnerable individuals are involved.
The decision also reinforces key procedural principles, including the need for precise pleadings and the Court's reluctance to strike out claims that raise arguable issues. Plaintiffs must carefully articulate the duty, breach, and causation elements, while defendants must demonstrate that the claim is untenable before seeking to have it struck out
The Supreme Court struck a careful balance between protecting institutions from unfair liability and ensuring that plaintiffs are not denied access to justice. The recognition of a potential duty to warn, even after formal disengagement, reflects a nuanced application of the principles of proximity and vulnerability in the context of child protection.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
