Australian Indigenous Law Reporter
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Court and Tribunal Decisions - Australia
New South Wales Court of Appeal (Spigelman CJ, Sheller JA, Heydon JA)
12 September 2000
Negligence — duty of care of Aborigines Welfare Board to ward — attachment disorder — damages.
In 1942, shortly after the appellant’s birth, her Aboriginal mother placed her under the control of the Aborigines Welfare Board pursuant to s 7(2) of the Aboriginal Welfare Act 1909 (NSW). The Board placed the appellant at Bomaderry. In 1947, the appellant while still a ward was transferred to the Lutanda. She left Lutanda in 1960.
At trial she contended that the Aborigines Welfare Board had committed trespass in taking her and keeping her at Bomaderry; that the Board failed to adequately supervise her at Bomaderry and Lutanda; that the Board failed to recognise that she suffered an attachment disorder arising from maternal deprivation; and that the Board failed to arrange medical treatment for her which would have avoided the development of borderline personality disorder in later life.
The trial judge held that no common law duty of care, statutory or fiduciary duty was owed by the Board to the appellant, and that even had any of these duties been owed to the appellant, none was breached. He held that the authorities had not conducted their institutions unsatisfactorily, and that the appellant had not suffered attachment disorder, which led to the development of borderline personality disorder in later life.
The appellant appealed to the Court of Appeal, where the focus of complaint on the treatment of appellant by reason of her Aboriginality was replaced by a focus on the effects of maternal deprivation; the assertion that the appellant was a member of the Stolen Generation was abandoned; criticism of the care she received at Lutanda was replaced by reliance on the good will of the staff; and the attack on the government policy of assimilation was replaced by reliance on that very policy to support the existence of a duty of care.
On the appeal the appellant contended inter alia that: the conditions at Bomaderry subjected her to a risk of attachment disorder; her behaviour at Lutanda would have alerted her carers to her disorder had the Board carried out its duty to inform them of its symptoms; had the carers been alerted, she would have received treatment which would have prevented the development of the borderline personality disorder in later life.
1. The trial judge had not erred in not finding that the appellant was at risk of suffering from attachment disorder in consequence of her experiences at Bomaderry;
2. The trial judge had not erred in finding that the appellant was not suffering from attachment disorder at Lutanda;
3. Even if the appellant was suffering from attachment disorder at Lutanda, it had not been shown that medical assessment would have detected the disorder.
The Court observed, in relation to the claim for exemplary and aggravated damages, that the evidence fell far short of establishing a conscious and contumelious disregard for the appellant’s health on the part of the defendants or circumstances of aggravation.
Factors relevant to recognising a common law duty of care in relation to the statutory system for the protection of Aboriginal children were considered.
I agree with Heydon JA.
I agree with Heydon JA.
...
4. This is a very sad case, and a very hard case.
5. The plaintiff appeals against a verdict for the defendants given by Abadee J in the following circumstances.
6. The plaintiff’s mother was an Aboriginal ... the plaintiff was born on 13 September 1942. The plaintiff’s parents never married. ...
7. On 12 October 1942 the plaintiff’s mother left hospital. On 13 October 1942, with the consent of the plaintiff’s mother, the Board placed the plaintiff in the custody of the United Aborigines Mission (UAM) at its Aboriginal Children’s Home at Bomaderry.
8. On 16 April 1947, with the consent of the plaintiff’s mother, the plaintiff was transferred from the Aboriginal Children’s Home at Bomaderry to Lutanda Children’s Home, conducted at Wentworth Falls by the Plymouth Brethren. ... She was discharged from Lutanda on 31 July 1960.
9. From that time on, although the plaintiff has achieved such successes as obtaining university qualifications in the 1990s and publishing poetry, and although there may have been intervals of happiness not recorded in the evidence, the plaintiff’s life has been profoundly miserable. ... There was evidence that she suffered from Borderline Personality Disorder, a severe behavioural disorder, from at least 1962 to 1997. ...
10. At the trial the plaintiff contended, among many other things, that the Board had committed trespass in taking her to and keeping her at Bomaderry; that the Board had failed adequately to supervise her at Bomaderry and Lutanda; that if it had, by making appropriate inquiries of the staff in each place, it would have realised by 1952 at the latest and probably an earlier time, that her misbehaviour was exhibiting classic symptoms of an attachment disorder pointing to a risk of suffering Borderline Personality Disorder in later life; that it could and should have arranged for her to have medical treatment at a Child Guidance Clinic which would have avoided the risk of Borderline Personality Disorder; that the conduct of the Board placed it in breach of a duty of care, in breach of statutory duty and in breach of fiduciary duty to her; that those breaches had caused her damage; that damages of up to $2,486,612, and in addition general damages, should be awarded to her; and that the defendants were liable to pay aggravated and exemplary damages as well.
11. ... The trial judge ... rejected most of the arguments propounded by the plaintiff. He held that there was no trespass. He held that no common law duty of care was owed by the Board. He held that there was no actionable statutory duty. He held that the Board did not owe the plaintiff any fiduciary duty. He held that even if any of these duties were owed, none was breached. In particular, he held that the authorities at Bomaderry and Lutanda had not conducted their establishments unsatisfactorily, that the plaintiff’s behaviour at Bomaderry and Lutanda was normal, and that no psychological or psychiatric condition would have been diagnosed had she been taken to a Child Guidance Clinic in those years. He held that even if there had been any breach of duty, it was not shown to have caused loss to the plaintiff. He held that even if there had been any breach of duty causing loss, she was entitled to recover as actual damages only $100,000 plus interest ($50,000 for general damages; $35,000 for past economic loss; $10,000 for past care pursuant to Griffiths v Kerkemeyer ([1977] HCA 45; 1977) 139 CLR 161; and $5,000 for past medical expenses). Finally, he held that she was not entitled to aggravated or exemplary damages.
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21. Though two affidavits of the plaintiff were filed, she was too ill to attend for cross-examination on their contents. ...
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24. The principal differences between the case as originally propounded and that advanced in this Court are:
(i) The focus of complaint on the treatment of the plaintiff by reason of her Aboriginality was replaced by a focus on the effects of maternal deprivation on any child.
(ii) The assertion that the plaintiff was a member of the stolen generation was abandoned.
(iii) Criticism of the care and attention she received at Lutanda was replaced, in large measure, by reliance on the good will of the staff at that institution.
(iv) The attack on the then government policy of assimilation was replaced by reliance on that very policy as supporting the existence of a duty of care.
...
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30. This case was put in two ways [at the trial]. ... The first way in which the plaintiff’s case was put in her affidavits was that those running Lutanda had permitted or perpetrated sodomy on the plaintiff and others, gang rape on the plaintiff, and other sexual misconduct; had punished the plaintiff for wearing lipstick by making her stand naked in the dining hall; had punished the plaintiff for cleaning her glasses on her apron by making her stand in the corner with her arms above her head holding the glasses for five hours; had administered corporal punishment to an excessive and intense degree; had broken her wrist and collarbone; had referred to her only by a number and not by her name; had administered morphine to her to keep her quiet after she was beaten; and had carried out circumcision on the boys at Lutanda on arrival no matter what their age. ...
33. ... the plaintiff’s affidavits put her case in a second, more generalised, way. They conveyed an impression of a racist, sadistic, heartless, excessively stern institution ...
38. The plaintiff’s written submissions dated 6 May 1999 began to exhibit a departure from her affidavit evidence ...
51. The explanation which counsel for the plaintiff gave for the making by her of ... false allegations was that they were evidence of an attachment disorder suffered by the plaintiff at Lutanda which developed into Borderline Personality Disorder later and did not reflect adversely on her credibility. The trial judge rejected that submission: he found that there was no attachment disorder. He further found that while the plaintiff was not lying, the consequence of the concessions made by the plaintiff’s counsel was that they ‘adversely affect her reliability and credibility save in particular respects’. ... The trial judge also made findings specifically rejecting all the allegations that the plaintiff had been abused ... In my judgment he dealt with these issues appropriately in the interests of those affected by the allegations.
52. Paragraphs 110-115 of the Notice of Appeal made extensive challenges to the trial judge’s conclusions in relation to the false allegations. However, those grounds of appeal were abandoned. What remained principally under challenge was the finding that the plaintiff did not have an attachment disorder. ... Thus the plaintiff at the end of the day accepted that in most respects the trial judge was right to reject the reliability of her evidence, and indeed contended that the trial judge only erred in so far as he accepted the reliability of her evidence. That is highly unusual.
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57. The Aborigines Protection Act 1909 (NSW), in the form in which it stood at the time of the plaintiff’s birth, contained the following relevant provisions. Section 4 established the Board. Section 7(1) provided:
It shall be the duty of the board —
...
(c) to provide for the custody and maintenance of the children of aborigines;
...
(e) to exercise a general supervision and care over all aborigines and over all matters affecting the interests and welfare of aborigines, and to protect them against injustice, imposition, and fraud ...
Section 7(2) provided:
The board may on the application of the parent or guardian of any child admit such child to the control of the board.
‘Ward’ was defined in s 3 as meaning:
A child who has been admitted to the control of the board or committed to a home constituted and established under s 11 of this Act.
Section 11 provided:
The board may constitute and establish under this Act homes for the reception, maintenance, education and training of wards and may assign a name or names to such homes.
Section 11D(1) provided:
(1) The Board shall be the authority to -
(a) admit a child to its control;
...
(h) direct the restoration of any ward (other than a ward who has been committed to an institution for a specified term) to the care of his parent or of any other person;
(i) direct the absolute discharge of any ward (other than a ward who has been committed to an institution for a specified term) from supervision and control.
58. ... the trial judge found, apparently on the plaintiff’s submission, that the plaintiff was lawfully admitted to the control of the Board on the application of her mother pursuant to s 7(2) ... He also found that the placement at Bomaderry was lawful ... ; that the transfer to Lutanda was lawful, with the consent of the plaintiff’s mother and in accordance with the Board’s statutory duty; and that the plaintiff’s legal guardian was at all times the mother. ... These findings were not challenged. ...
...
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63. The plaintiff did not challenge many of the trial judge’s findings. Indeed, it relied strongly on some of them. It presented on appeal a much more simple and elegant case than it had presented at trial. That case was summarised in 17 propositions as follows.
1. Attachment disorder is a cause of borderline personality disorder. ...
2. Attachment disorder arises in circumstances where no, or insufficient, attachment develops in childhood or adolescence between a child and a caring adult. ...
3. Attachment disorder is reversible, through formal treatment (counselling or attendance at a Child Guidance Clinic) or through the fortuitous formation of a sufficiently close attachment between the child or adolescent and a caring adult. ...
4. A child or adolescent who suffers from attachment disorder behaves in an aberrant way, but the childhood manifestations of the disorder may be delayed for some years ...
5. Propositions 1-4 are established, authoritatively, in Bowlby, Maternal Care and Mental Health ...
6. The conditions to which the appellant was subject at Bomaderry ... subjected her to a risk of attachment disorder. ...
7. Proposition 6 is readily inferred from the objective facts concerning Bomaderry and the learning in the Bowlby report. ...
8. The trial judge found that from 1951 onwards the Board was aware of the Bowlby Report and that it represented the state of knowledge. ...
9. The trial judge found that from at least 1962 the appellant suffered from borderline personality disorder. ...
10. It was not disputed that the appellant had recovered from Borderline Personality Disorder by 1996. ...
11. The appellant’s behaviour at Lutanda, as a matter of objective fact, was such as to demonstrate that she was suffering from attachment disorder. ...
12. The appellant’s carers at Lutanda were aware of much of the appellant’s behaviour ...
13. His Honour the trial judge found that the appellant’s carers would have told the Board what they knew, had the Board visited the appellant while she was at Lutanda ...
14. Had the appellant’s carers informed the Board ... the Board would have ... referred her to a Child Guidance Clinic for treatment. ...
15. The Lutanda carers would have assisted in accompanying the appellant to the Child Guidance Clinic for treatment. ...
16. The treatment received by the appellant at a Child Guidance Clinic would have, on the balance of probabilities, been sufficient to reverse the attachment disorder ...
17. The appellant would not have suffered from borderline personality disorder, had the attachment disorder from which she was suffering been reversed. ...
64. While the first defendant took issue with the terms or emphasis of many of these propositions, the real controversy occurred in three areas.
65. The first area of controversy relates to proposition 6. The trial judge did not find that the plaintiff was subjected to a risk of attachment disorder at Bomaderry. ...
66. The second area of controversy is in relation to propositions 11 and 12. The trial judge made findings directly to the contrary of them.
67. The third area of controversy relates to proposition 16. The trial judge relied on what happened when the plaintiff attended a Child Guidance Clinic just before she turned 18: neither attachment disorder nor Borderline Personality Disorder was diagnosed. From this the trial judge inferred that the plaintiff did not have those conditions at that time. ...
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98. ... so far as the plaintiff’s case rests on the Bomaderry period, she had to seek a finding of fact that there was inadequacy of bonding sufficient to cause a risk of attachment disorder which was in turn sufficient to cause it to come into being at Lutanda. No finding of inadequacy was made. ... It was ... incumbent on the plaintiff, on the case she was advancing, to prove that there was a risk, and that involved causing the trial judge to experience an actual persuasion of the risk of attachment disorder. ... His failure to experience an actual persuasion has not been shown to be appellably wrong. ...
99. The second central area of factual controversy concerns Lutanda. ...
100. ... The trial judge found that the staff looked after the children with charity, trust, devotion, care ‘and within constraints, with appropriate discipline (measured by the standard of the day), kindness and affection. ...
...
105. What was centrally controversial in the appeal was not the way Lutanda behaved towards the plaintiff, but the way the plaintiff behaved towards Lutanda, and what that behaviour indicated. ...
106. The trial judge said that the plaintiff had no attachment disorder at Lutanda ... The plaintiff contended on appeal that these findings involved a radical mistake and that the truth was ... that the plaintiff presented every symptom of attachment disorder which, if the Board had made appropriate inquiries, would have been reported by the staff at Lutanda.
...
128. The trial judge did not have to set out in detail the evidence of every witness and explain why the detail of one should be preferred to that of another. His duty was to apprise the parties of the broad outline and constituent facts of the reasoning on which he proceeded. In my opinion he did that in a manner not revealing any appellable error.
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142. The plaintiff left Lutanda on 30 July 1960 to work as a housemaid ... She was arrested on 26 August 1960. ... She was charged with theft ... and with being ‘a neglected young person within the meaning of the Child Welfare Act 1939 in that she is living under such conditions as indicate that she is likely to lapse into a career of vice.’ ...
143. The third main issue which is significant to the appeal concerns Dr Cooley’s report. Dr Beryl Cooley ... saw the plaintiff ... and made a report about her on 1 September 1960.
...
157. The problem for the plaintiff’s case caused by Dr Cooley’s report is not only that it points against the plaintiff suffering from borderline personality disorder in 1960. Even if she were so suffering, the report would indicate an insuperable causation problem for the plaintiff’s case. ...
158. ... the failure of the plaintiff’s attack on the absence of any finding by the trial judge that the plaintiff was at risk of attachment disorder by reason of conditions at Bomaderry may not be fatal to her success, though it does destroy an essential step in the case actually advanced ... The failure of the plaintiff’s attack on the trial judge’s conclusions about the plaintiff’s behaviour at Lutanda is fatal as a matter of causation to the case she actually advanced and to any case she could have advanced, because it means that even if the Board had asked the correct questions, it would not have received answers suggesting attachment disorder. And the failure of the plaintiff’s attack on the trial judge’s reasoning about Dr Cooley’s report is also fatal as a matter of causation. The burden lay on the plaintiff to prove causation, not on the defendants to exclude it. In these circumstances it is not necessary to deal with any other aspect of the arguments on appeal, except in two respects.
159. The first relates to the plaintiff’s claim for exemplary or aggravated damages. In my judgment the contentions advanced in support of this claim, even assuming everything else in the plaintiff’s favour, were so weak as to render it wholly untenable. The evidence referred to fell far short of establishing a conscious and contumelious disregard for the plaintiff’s health and did not show the wrongdoing to be either conscious or flagrant. The evidence also fell far short of establishing circumstances of aggravation (even assuming that aggravated damages are recoverable in negligence which, at least in England, they are not: Kralj v McGrath [1986] 1 All ER 54 at 61; AB v South West Water Services Ltd [1993] QB 507 at 527-8 and 523-3).
160. The second relates to whether or not the Board owed the plaintiff a duty of care. ... the trial judge concluded that the Board did not owe any duty of care to the plaintiff ... He relied significantly on Lord Browne-Wilkinson’s analysis in X (Minors) v Bedfordshire County Council [1995] UKHL 9; [1995] 2 AC 633. The trial judge did so in language which was less decisive than that employed in other parts of his reasons for judgment. He appeared to consider that there were no established categories of negligence providing any analogy to the cause of action for which the plaintiff contended. ...
161. Though the facts and the issues in Cubillo v Commonwealth of Australia [2000] FCA 1084 are different from those involved in the present appeal, any court considering whether a duty of care exists in circumstances like the present will have to pay close regard to O’Loughlin J’s careful analysis at [1194]-[1269] (pp 528-570) as well as to that of the trial judge in the present case.
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170. The wide potential impact of imposing a duty of care in the general area under consideration, the difficulty of identifying its content, and the difficulty of administering litigation in which breaches of it are alleged, are not in themselves necessarily reasons for not recognising it. But they are reasons for delaying any decision to do so until particular circumstances are proved which will result in liability sounding in damages. They have not been proved in this case. ...
171. Where the law is unsettled but is entering or may shortly enter a state of development, it is undesirable to offer opinions on facts not proved. It is even more undesirable to do so when the circumstances of the case go as far back in time, and are as unusual procedurally, as are the circumstances of this case. On these grounds it is inappropriate to comment further about the trial judge’s findings that there was no duty of care.
172. I propose that the appeal be dismissed with costs.
Counsel for the Appellant:
N C Hutley SC and C E Adamson
Solicitor for the Appellant:
Frances Gibson, Kingsford Legal Centre
Counsel for the Respondents:
C T Barry QC and D Cowan
Solicitor for the Respondents:
State Crown Solicitor
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2000/32.html