University of Technology, Sydney. Faculty of Law.The thesis suggests an approach to be taken in determining whether clergy who provide
pastoral counselling for depression1 to individuals in New South Wales owe a duty of
care. The ‘pastoral’ nature of pastoral counselling for depression is defined herein by
reference to several indicia, including that the cleric is a non-professional counsellor
and that the counselling is wholly or primarily based on religion.
The Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) (‘the CLA’)
does not provide a general statement of when a duty of care arises. The common law
continues to apply, to the extent not supplanted by the CLA. Whatever the CLA’s
overall effect, the change to the law has not been extensive as it may relate to the
existence of the postulated duty of care.
There is no Australian case of direct relevance to pastoral counselling for depression,
and no majority accepted general approach in the High Court of Australia (‘the Court’)
for determining whether a duty of care exists. It is contended that whether a duty of
care will arise for pastoral counselling for depression by clergy may appropriately be
determined by reference to the following questions, to be answered with regard to the
facts of the case.
These are whether the cleric knew, or a reasonable cleric would have known, of a
likelihood of a client relying on the counselling; whether such reliance would be
reasonable; whether pastoral counselling for depression could increase the client’s
vulnerability if reasonable care is not taken; whether harm to the client is foreseeable to
a reasonable cleric as a result of an act or omission when providing pastoral counselling
for depression; whether it would be unreasonable, having regard to the public interest,
for the cleric to be subject to a duty of care; and whether imposing a duty of care would
subject clergy or churches to an unreasonable burden.
Affirmative answers to each of the first four questions and a negative answer to the fifth
and sixth questions in a particular case would result in a finding that a duty of care
existed. A negative answer to any of the first four questions or an affirmative answer to
either of the fifth and sixth questions would mean no duty of care.
It is argued that the provisions of the CLA about the standard of care for professionals
do not apply to pastoral counselling for depression, and the cleric must act as a
reasonable cleric who provides pastoral counselling for depression should in the
circumstances. Referral of the client to a general medical practitioner or mental health
professional (‘the duty to refer’) is the main constituent of the degree of care required, if
a duty of care arises.
As it relates to causation, the CLA was intended by parliament to guide courts as they
apply the common sense approach developed by the Court. Whether breach of the duty
to refer may be the cause of a suicide attempt by a client, and therefore of damage
resulting from the attempt, is considered.5 It is argued that in some circumstances it
may, and that a suicide attempt does not in itself break the causal chain.
The law and main issues relevant to whether a church could be liable for a cleric’s
counselling negligence are also identified
