AB (a pseudonym) v CD (a pseudonym)
[2000] VSC 239
•13 June 2000
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
| SUPREME COURT OF VICTORIA | |
| COMMON LAW DIVISION | |
No. 5795 of 1998
| AB (A MINOR WHO SUES BY HER LITIGATION GUARDIAN) (A PSEUDONYM) | Plaintiff |
| V | |
| CD (A PSEUDONYM) AND OTHERS) | Defendants |
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JUDGE: | GILLARD, J. | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 and 5 June 2000 | |
DATE OF JUDGMENT: | 13 June 2000 | |
CASE MAY BE CITED AS: | AB (a pseudonym) v CD (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 239 | |
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application to amend statement of claim – Jury trial – Claim in tort – Sexual abuse – claim against school – amendment sought to allege fiduciary duty by Education Department employees - amendment refused – no cause of action.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr. P. Galbally, Q.C. with Mr. M. Houlihan | Daniel S. Slattery & Associates |
For the 1st Defendant | In person | |
| For the 2nd Defendant For the 3rd Defendant | Ms F. Ellis Mr. S. Ruskin, Q.C. and Mr. C. Blanden | Neal Collin & Assoc. Minter Ellison |
HIS HONOUR:
In this proceeding commenced by writ, the plaintiff, an infant who sues by her litigation guardian, is seeking damages against a number of defendants arising out of alleged sexual assaults perpetrated on her by her former stepfather.
Parties
The infant plaintiff was born on [redacted] 1982, is presently aged 17 years and sues by her natural father as litigation guardian. She alleges that her former stepfather, the first defendant, assaulted her physically and sexually during the period from about 1991 until April 1995.
The first defendant CD (a pseudonym) is the former stepfather of the infant plaintiff who married her mother, the second defendant, in 1986.
The second defendant EF (a pseudonym) is the natural mother of the infant plaintiff, who separated from her former husband in about February 1984 and thereafter was the custodial parent of the infant plaintiff.
The third defendant was GH (a pseudonym), the headmaster of the [redacted] Primary School where the infant plaintiff attended during the period from 1989 to December 1992.
He was joined as a defendant to the proceeding, but on application by the plaintiff I ordered that he be removed as a party from the proceeding.
The fourth defendant, now the third defendant, is the State of Victoria who is sued as the employer of members of the Education Department in the years 1991 to December 1992. It is sued pursuant to s.23(1)(b) of the Crown Proceedings Act 1958.
The proceeding
The plaintiff in her writ, sought trial by jury. This was the position until about November 1999 when a decision was made that the plaintiff would prefer the trial to proceed before a judge alone.
The proceeding came on for hearing before me on 2nd June 2000.
Mr. Peter Galbally, Q.C., who appeared with Mr. Michael Houlihan for the plaintiff made application to amend the statement of claim. A number of queries were raised with respect to the original and the proposed amended statement of claim and Mr. Galbally sought further time to consider the proposed amendments.
Later that day he raised another amendment and his application was adjourned to Monday, 5th June.
He made application on behalf of the plaintiff late on 2nd June that the Court order that the trial proceed before a judge alone. The application was opposed by the first defendant, the stepfather and the third and fourth defendants namely the principal Mr. Mirabella and the State of Victoria. The mother did not oppose or consent to the application.
I refused the application.
Proposed amendment
Mr. Galbally, Q.C. foreshadowed that he would apply to amend the statement of claim making a claim for a breach of a fiduciary duty against the State of Victoria. In his original proposed amendment he sought to allege against the State of Victoria that it was sued not only pursuant to the provisions of the Crown Proceedings Act but also "in its original capacity". That latter allegation raised the question as to how one should sue the State of Victoria in the circumstances alleged. The proposed amended statement of claim alleged that the State of Victoria owed a duty of care of a primary nature to the plaintiff as distinct from the claim based on vicarious liability for the torts of identified employees of the State.
In support of the amendment Mr. Galbally referred to the High Court decision of The Commonwealth v. Introvigne (1982) 150 C.L.R. 258.
This application has come very late. It is unfortunate that the application was not brought a lot earlier rather than on the morning of the hearing of the jury trial. I must say I would have preferred more time to consider the matters raised.
I informed the parties after argument that I refused the application to amend to allege a cause of action based on a fiduciary duty and that I would deliver my reasons later.
These are my reasons.
Amendment
The Rules permit amendment of a pleading and permit amendment at any time. See Rule 36.03(b) of the Rules of Court.
The general rule which applies to applications for amendment is set out in Rule 36.01(1) of the Rules of Court which relevantly provides -
"1.For the purpose of determining the real question in controversy between the parties to any proceeding or correcting any defect or error in any proceeding ... the Court may at any stage order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding."
This paragraph is both the rationale for the power and the criteria for its exercise.
The rule concerning power to amend pleadings in this State has been in similar form since the Judicature Act rules were first passed in the colony of Victoria.
The general rule is that all amendments should be permitted unless the amendment will cause prejudice to any other party which cannot be overcome in some way. Of course that general rule is subject to the pleading disclosing a cause of action.
Very soon after the Judicature Act rules were passed in England the courts adopted a practice which has been followed in this State ever since. In the case of Cropper v. Smith (1884) 76 C.D. 700 Lord Justice Bowen said at p.710 -
"Now I think it is a well established doctrine that the object of courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights ... I know of no kind of error or mistake, which if not fraudulent or intending to overreach, the court ought not to correct if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding such matters in controversy and I do not regard such amendment as a matter of favour or grace ... It seems to me that as soon as it appears that the way in which a party has framed his cause will not lead to a decision of the real matter in controversy, it is much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right."
(Emphasis added.)
In O'Keefe v. Williams (1910) 11 C.L.R. 171 at p.204 Justice Isaacs in rejecting an objection of the defendant to an application by the plaintiff to amend the declaration said -
"There being nothing but the merest technicality in the objection, no possible prejudice to the defendant being suggested, no really novel claim, issue or fact being advanced, the new count consisting simply of a better and fuller legal statement of the uncontroverted facts with the same results dependent upon the same circumstances and almost the same form of allegation of facts, I fail to see how the amendment, if leading to a just determination of the matters really in issue, could at the trial properly be refused."
Both passages to which I have just referred emphasise the question of justice between the parties, ensuring that the real matters in controversy are decided and considering the question of prejudice to the parties. I also refer to the recent High Court case of Queensland v. J.L. Holdings Pty. Ltd. (1997) 189 C.L.R. 146 where it was said at p.155 -
"Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking an opposite view, the primary judge was, in our view, in error in the exercise of her discretion."
The issue is doing justice as between the parties.
A court will not make an order that is futile or of no effect. Hence if the proposed amendment seeks to raise a cause of action which is not open on the facts as pleaded, then the court will refuse the amendment.
Mr. Ruskin, Q.C. who appears with Mr. Blanden for the State of Victoria opposes the amendment to the statement of claim in so far as it is sought to plead a claim against the State of Victoria for breach of a fiduciary duty.
Mr. Ruskin, Q.C. frankly conceded that there was no prejudice to the State of Victoria if the amendment was allowed in a sense that the State of Victoria could meet the factual matters raised. Other than to criticise a number of the paragraphs concerning the plea against the State of Victoria in tort he did not otherwise oppose the other amendments.
Claim against State
Putting aside a claim based upon a fiduciary duty, the claim presently pleaded against the State of Victoria is in tort.
At common law the Crown is immune from all actions for tort. By reason of statute the Crown in the right of the Commonwealth and the right of each State is liable in tort. So far as Victoria is concerned the statute in question is the Crown Proceedings Act 1958.
Section 23 provides as follows -
"(1) Subject to this Part -
(b)the Crown shall be liable for the torts of any servant or agent of the Crown or independent contractor employed by the Crown as nearly as possible in the same manner as a subject is liable for the torts of his servant or agent or of an independent contractor employed by him."
In the case of Clayton v. State of Victoria [1968] V.R. 562, Gillard, J. at p.564 stated the basis upon which a proceeding could be brought against the Crown in tort –
"A plaintiff cannot succeed in this action unless he can by the evidence, establish a breach of duty by servant agent or contractor of the State for whom the State is vicariously liable and in such circumstances as such servant agent or contractor was himself liable in tort ... To make the State vicariously liable ... the court must be committed in the course of the tortfeasor's employment with the State."
In other words it is necessary to establish that at the relevant time there was a servant of the Crown who owed a duty of care to the plaintiff in the course of his employment and in the course of his employment he committed a tortious wrong resulting in injury to the plaintiff. See Hall v. Whatmore [1961] V.R. 225 at 229, Richards v. State of Victoria [1969] V.R. 136.
It is well established by authority that a schoolmaster owes to each of his pupils whilst under his control and supervision a duty to take reasonable care for the safety of the pupil. See Richards v State of Victoria ibid at p.138.
It is alleged against the State of Victoria in the present proceeding, that a teacher at the [redacted] Primary School where the infant plaintiff attended as a pupil, came to the conclusion that the child was being sexually abused. It is alleged that she raised the issue with the child's mother, and also with the Principal at the school. It is alleged that no steps were taken by the school to protect the infant plaintiff from further sexual abuse.
In the first application to amend, the issue arose as to whether the State of Victoria could be held responsible in its original capacity i.e. not as an employer vicariously liable for the tort of its employee.
Mr. Galbally Q.C. referred to The Commonwealth v. Introvigne (supra) and especially to what Mason, J. said at p.269-70 and what Brennan, J. said at 279ff.
That was a case where the plaintiff sued the Commonwealth in relation to an accident which occurred in a school yard. The Court did not discuss the issue of how a plaintiff could sue the Commonwealth in tort.
However, the Court made it clear that an education authority could have a primary responsibility to take care of each pupil as distinct from being vicariously liable for the tort of its employee.
There is no doubt that that is so. This would apply to any education authority which is distinct from the Crown. But the position may be different when suing the Crown in tort. It is not necessary when suing the Commonwealth for damages for a tort to prove a duty of care owed by a particular individual to the plaintiff. This is made quite clear by the provisions of s.56 of the Judiciary Act 1903-1995.
Mr. Galbally Q.C. having raised the question of primary responsibility I referred him to a ruling made by Mr. Justice Murphy in this Court in a case of Hardy v. The State of Victoria in March 1982. In that case I appeared as counsel for the State of Victoria. The case was concerned with a brutal attack on a prisoner by a co-prisoner at Pentridge Gaol and his Honour ruled in relation to the obligation of the prison authority. He referred to legislation.
He ruled that the prison authority did have an overall duty to prisoners in the care of the authority which went beyond the question of any duty of care owed by the custodial officers at the gaol. On one view it was arguable that his Honour was in fact recognising that an injured plaintiff could sue the State of Victoria for primary responsibility.
As events turned out, the jury found against the plaintiff and accordingly his Honour's ruling was never made the subject of an appeal.
Mr. Galbally Q.C. was able to find a copy of the ruling which he placed before the Court on 5 June. A close reading of his Honour's ruling in that case would lead one to the conclusion that all his Honour was saying was that it was possible to sue the State of Victoria in respect to employees within the department responsible for making policy and giving directions and instructions. If it is construed in this way it does not cut across the Crown Proceeding Act and the authorities which are concerned with it.
After some debate Mr. Galbally did not press the amendment alleging that the State of Victoria was liable for an alleged breach of a primary obligation resting upon the State. On the facts pleaded there was no basis for such plea assuming it was in accordance with the law.
Fiduciary Duty
In her statement of claim the infant plaintiff asserted that between 1991 until April 1995 the stepfather on numerous occasions unlawfully assaulted her both physically and sexually. She alleges that from about 1991 and thereafter her mother was guilty of negligence in failing to stop the activities of the stepfather.
She then goes on to allege that two employees of the Education Department at the [redacted] Primary School were negligent in their conduct towards her. In substance it was alleged that the Principal and the Deputy Principal failed to properly investigate whether the infant had been sexually abused but more importantly failed to convey to any authority the information that the infant was being sexually abused.
After alleging that the employees of the State of Victoria owed the infant as a pupil at the school a non-delegable duty to take all reasonable care an alternative claim was put on the basis that the Principal of the school was in a fiduciary relationship with the infant plaintiff and was guilty of breach.
The proposed amended statement of claim pleaded as follows –
"27.Further and in the alternative at all material times the Principal of the school was acting as a fiduciary in respect to the infant plaintiff. Acting in such capacity the Principal had an obligation to ensure that the school acted in accordance with operative protocols to ensure that the behaviour of the infant plaintiff which might be indicative of child abuse was adequately and appropriately assessed, investigated and acted upon."
28.The infant plaintiff refers to the particulars in paragraph 26 hereof and seeks damages by way of equitable relief.
The particular sub-joined to paragraph 26 asserted that the Principal failed to take any adequate steps to investigate the cause of the infant plaintiff's behaviour, failed to report the alleged sexual abuse and failed to act in accordance with protocols and guidelines by not reporting the matter to the appropriate authorities.
This proposed claim is indeed a novel one.
The principles concerning fiduciaries and their obligations to the other party to whom they owe the duty have been developed by the courts of equity over many years. Consistent with the equitable remedies as a general proposition one could not claim damages in equity. One could claim compensation in certain situations and later statute altered the position. The principles had been well established by the time statute gave power to award damages.
The first question to consider is whether there is a fiduciary relationship between the school Principal and a pupil. For present purposes I assume that the plaintiff will establish that she was at all relevant times in the care and control and subject to the supervision and discipline of, the staff at the [redacted] Primary School.
The law has over the years recognised that certain relationships are of a fiduciary nature and impose certain obligations.
In Hospital Products Ltd. v. United States Surgical Corporation (1984) 156 C.L.R. 41, Gibbs, C.J. at p.68 said –
"The authorities contain much guidance as to the duties of one who was in a fiduciary relationship with another, but provide no comprehensive statement of the criteria by reference to which the existence of a fiduciary relationship may be established. The archetype of a fiduciary is of course the trustee, but it is recognised by the decisions of the courts that there are other classes of persons who normally stand in a fiduciary relationship to one another – e.g. partners, principal and agent, director and company, master and servant, solicitor and client and tenant-for-life and remainderman. There is no reason to suppose that these categories are closed."
(Emphasis added.)
The law has not come as far as recognising that the mere relationship of Principal or school master to a pupil creates a fiduciary relationship.
Mr. Galbally Q.C. was unable to refer me to any authority which established that a headmaster or teacher owed a fiduciary duty to a pupil.
Mr. Galbally Q.C. submits that the relationship between parent and child is a fiduciary one and accordingly because the standard of care expected of a teacher is the standard of care one would expect from a caring parent to a child, that it follows that the relationship between teacher and pupil is a fiduciary one.
For present purposes I am prepared to accept that in certain circumstances there is a fiduciary relationship between parent and child.
There is no doubt that in certain circumstances a fiduciary duty arises when a parent is dealing with the child's property or making decisions which affect a child's property or future property.
As the authorities establish, a fiduciary relationship can be created by a certain situation which may only be for a very short period of time. But as a general proposition when parents are dealing with any property owned by their children or held on their behalf whilst acting on behalf of the children there is a general fiduciary obligation resting between them but in this area it must not be overlooked what Fletcher Moulton, L.J. said in Re Coomber; Coomber v. Coomber [1911] 1 Ch. 723 at 728-9. His Lordship said –
"It is said that the son was the manager of the stores and therefore was in a fiduciary relationship to his mother. This illustrates in a most striking form the danger of trusting to verbal formulae. Fiduciary relations are many different types; they extend from the relationship of myself to an errand boy who is bound to bring me back my change up to the most intimate and confidential relations which can possibly exist between one party and another where the one is wholly in the hands of the other because of his infinite trust in him. All these are cases of fiduciary relations, and the courts have again and again, in cases where there has been fiduciary relation, interfered and set aside acts which, between persons in a wholly independent position, would have perfectly valid. There upon in some minds there arises the idea that if there is any fiduciary relation whatever of any of these types of interference is warranted by it. They conclude that every kind of fiduciary relation justifies every kind of interference. Of course that is absurd. The nature of the fiduciary relation must be such that it justifies the interference. There is no class of case in which one ought more carefully to bear in mind the facts of the case, when one reads the judgment of the court on those facts, and cases which relate to fiduciary and confidential relations and the action of the court with regard to them. In my opinion there is absolutely nothing in the fiduciary relations of the mother and son with regard to this house which in any way affected this transaction."
As his Lordship emphasised it was a possibility that there might have been a transaction between the son and the mother with regard to one of the transactions "in which the son would have had to show that he had given her full information in every possible way as to the value."
In the Supreme Court of Canada in (M) K v. (M) H (1992), 96 D.L.R. (4th) 289, at p.323 the Court recognised that the relationship between a parent and a child is fiduciary in nature. The Court went on to observe –
"… and that the sexual assault of one's child is a grievous breach of the obligations arising from that relationship. Indeed, I can think of few cases that are clearer than this. For obvious reasons society has imposed upon parents the obligation to care for, protect and rear their children. The act of incest is a heinous violation of that obligation. Equity has imposed fiduciary obligations on parents in contexts other than incest, and I see no barrier to the extension of a father's fiduciary obligation to include a duty to refrain from incestuous assaults on his daughter."
As I say for present purposes I am prepared to assume that in certain circumstances a fiduciary relationship may exist between parent and child arising out of the mere relationship and imposing duties on the parent to take steps to stop sexual abuse.
But having said that the fact is that the standard of care resting upon a parent to a child to discharge the duty of care which a parent owes to a child, is different to the question of whether or not in a given set of circumstances there is a fiduciary relationship existing between the parties.
In Meagher Gummow and Lehane, Equity Doctrines and Remedies, 1st ed., the learned authors defined the fiduciary relationship as follows –
"Broadly, it may be said that a fiduciary relationship is a relationship of confidence, in which equity imposes duties upon the person in whom confidence is reposed in order to prevent the abuse of the confidence."
The learned authors later on the same page said this –
"Somewhat more positively, it can be said that a fiduciary is one who has undertaken, whether on request or without request, of his own motion - … to act on behalf of another in circumstances in which equity will not allow him to enter into engagements in which he has, or can have, a personal interest conflicting, or which possibly may conflict, with the interests of those whom he is bound to protect."
These definitions do not embrace the ordinary relationship of teacher and child which imposes a duty on the teacher to take reasonable care for the safety of the child. The teacher in ordinary circumstances is not acting for or on behalf of the pupil in respect of the latter's activities.
How does one determine whether there is a fiduciary relationship between two parties?
It is not possible to give a definitive answer to that question or provide a formula which will guide one to answer the question.
In an interesting article Mr. Justice McPherson sought to give some guidance to determining whether or not there was a fiduciary relationship and the duties that flowed from it. See (1998) 72 A.L.J. 288.
His Honour suggested that in seeking an answer to the question it is helpful to identify the function of a fiduciary. "Their common characteristic is that they are all agents. Expressed broadly as it was in Roman law, the category embraces all those "who conduct another's affairs". Ibid at p.288-89.
His Honour went on to state that the prevailing wisdom in Australia was that stated by Mason, J. in Hospital Products Ltd. case (supra) at p.96 –
'The fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense."
The characteristics of a fiduciary relationship are in general, conducting the affairs of others, and to an extent of affecting the interests of the other person in a legal or practical sense, acting to create legal relations between a third party and the beneficiary of the fiduciary obligation and the assumption of control over the affairs of another.
The most common duties that flow from the relationship are twofold namely that a fiduciary must not make a personal profit from his relationship and that he must not allow his personal interest and duty to conflict. Of course there may be others depending on the circumstances – see Macguire v Makaronis (1997) 188 CLR 449 at 464.
Given that those are the criteria for establishing the relationship and the general statement as to their duties in my view the relationship of teacher and pupil in the absence of the teacher acting as a form of agent in some transaction could not be described as a fiduciary relationship.
Mr. Galbally Q.C. relied upon another decision in Canada. The case is J. v. J. (1993) 102 D.L.R. (4th) 177. This is another case concerning sexual assault by a father on a daughter and the allegation that the parent owed a fiduciary obligation to the child. Rutherford, J. in the Ontario Court followed the Supreme Court decision of (M) K v. (M) H. The case does not support the proposition that there is a fiduciary relationship between the school master and the child by reason of the relationship.
In Paramasivam v. Flynn (1998) 90 F.C.R. 489 the Full Court of the Federal Court considered the question of a fiduciary relationship alleged to have existed between a child and a person who was responsible for his care during his infancy. It was alleged that the carer committed a number of sexual assaults on the young boy from the age of 11 in Fiji and in Australia.
Later the carer became the boy's guardian.
The victim brought a proceeding in the Supreme Court of the A.C.T. and was met with a limitation defence. He alleged breaches of fiduciary duty. At first instance the learned Judge held that there was no prospect of success in a claim based upon a fiduciary relationship.
The full Federal Court considered the question and held that on the authorities the law had not recognised a basis for bringing a proceeding for damages for what in effect was a tort of an alleged fiduciary relationship between an infant and a carer. The Full Court upheld the decision of the learned Judge at first instance that "the appellant's claim based on breaches of fiduciary duty owed by the respondent to the appellant had (no) real prospects of success."
The full Federal Court followed the judgments of the High Court in Breen v. Williams (1996) 186 C.L.R. 71.
Mr. Ruskin Q.C. also relied upon those judgments in his submission that the infant plaintiff here could not prove a fiduciary relationship between the staff at the primary school and herself.
In particular he relied upon what Gaudron and McHugh, JJ. said at p.110 –
"In our view, there is no basis upon which this court can hold that Dr. Williams owed Ms Breen a fiduciary duty to give her access to the medical records. She seeks to impose fiduciary obligations on a class of relationship which is not traditionally been recognised as fiduciary in nature and which would significantly alter the already existing complex of legal doctrines governing the doctor-patient relationship, particularly in areas of contract and tort."
As Sopinka, J. remarked in Norberg v. Wynrib (1992) 92 D.L.R. (4th) 449 at 481:
"Fiduciary duty should not be superimposed on these common law duties simply to improve the nature or extent of the remedy."
There observations are apposite here. There is a common law duty existing between school master and pupil. It is recognised as a special relationship which imposes a duty of care, the breach of which is a tort, the applicable laws of which have evolved over many years.
In relation to Canadian law I refer to what their Honours said in Breen v. Williams at p.112 that Canadian law "on fiduciary duties is very different from the law of this country with respect to that subject." Their Honours went on to say at p.113 –
"One significant difference is the tendency of Canadian courts to apply fiduciary principles in an expansive manner so as to supplement tort law and provide a basis for the creation of new forms of civil wrongs. The Canadian cases also reveal a tendency to view fiduciary obligations as both proscriptive and prescriptive. However, Australian courts only recognise proscriptive fiduciary duties."
The proposed amendment seeks to place a duty to act on an alleged fiduciary and not an obligation not to do something.
Mr. Galbally Q.C. could not point to case where a court had held the relationship between a school teacher and a child was a fiduciary one let alone any case where a child had successfully sued for general damages for injury, pain and suffering against a school teacher arising out of an alleged fiduciary relationship.
What is pleaded does not establish a fiduciary relationship. The proposition that a teacher is a fiduciary merely by reason of the relationship is contrary to the definitions of a fiduciary and the principles stated in the cases.
In my opinion the law in Australia has not come that far. Indeed I doubt that it ever will. The observations of the High Court in Breen v. Williams and the compelling reasoning of the Judges in the Paramasivam case lead to the conclusion that there is no basis here for alleging a fiduciary relationship between the school teacher and the infant.
There are no facts alleged in the proposed amended statement of claim which could establish a fiduciary relationship.
Accordingly as I indicated after argument it is my opinion that the proposed cause of action is futile and does not disclose a good cause of action in law and accordingly I reject the application by the plaintiff to amend her statement of claim to include such a claim.
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