Adam Richard Swan by His Next Friend Richard John Swan v the State of South Australia No. SCGRG 93/2542 Judgment No. 4614 Number of Pages 23 Negligence
[1994] SASC 4614
•15 June 1994
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA MOHR(2), BOLLEN(1) AND DUGGAN(3) JJ
CWDS
Negligence - miscellaneous forms of negligent conduct - Appeal against order dismissing appellant's action on the ground that statement of claim disclosed no cause of action - allegation of breach of duty of care by Parole Board and parole officers - release of sexual offender - claim that Board failed to fix adequate conditions of parole - held no duty of care owed by Parole Board to the broad class of persons who might be affected by the parolee's conduct. Hill v Chief Constable of West Yorkshire (1989) 1 AC 53 and Home Office v Dorset Yacht Co. Ltd (1970) AC 1004 referred to. Held further that a breach of duty of care may be established if parole officers took no action after being made aware that a particular group of children were at risk from the parolee following upon an apparent breach of parole conditions.
HRNG ADELAIDE, 5 May 1994 #DATE 15:6:1994
Counsel for appellant: Mr I H Polson
Solicitors for appellant: Coltons
Counsel for respondent: Mr J J Doyle QC with
Mr P Y Wilson
Solicitors for respondent: Crown Solicitor
ORDER
Appeal allowed.
JUDGE1 BOLLEN J The appellant sued the respondent in the District Court seeking to recover damages for psychological harm and injuries sustained by the appellant at the hands of a man named Sincock. That conduct was rape of the appellant. It happened on many occasions between 1st March 1987 and 19th April 1988.
2. The appellant sued pursuant to s5 of the Crown Proceedings Act.
3. At trial the appellant ascribed the fault on the part of the respondent as the negligence of the Parole Board. He asserted that the Board was negligent in failing to supervise Sincock both as to his conditions of parole and as to his complying with those conditions.
4. The duties and obligations of the Parole Board are set out in the Correctional Services Act 1982 as amended. Parliament contemplated that the Board might be liable in damages sometimes. Section 60a(2) and (3) are:-
"(2) No liability attaches to a member of the Board for
an act or omission by the member, or by the Board, in
good faith and in the exercise or purported exercise of
powers or functions, or in the discharge or purported
discharge of duties, under this Act.
(3) A liability that would, but for subsection (2),
attach to a member of the Board lies against the Crown."
5. The appeal started with much skirmishing about the possible liability of the Parole Board, about the department or agency to which probation and parole officers "belong", about the absence of any "field" officers from the employ of the Board. How could the Board supervise if no persons were assigned to it as (say) supervisors? These matters were debated for some little time at the beginning of the appeal. During these discussions Mr Polson said:-
"My case is that the Parole Board are under a statutory duty to
supervise the parolee when he's released. There is some sections
of the Act that's set out in the judgment at p22, s66(2) of the
Correctional Services Act. That provides that the prisoner shall
be under the supervision of a parole officer and I say that that
statutory duty carries with it a standard."
6. The proposition as stated can hardly be correct. The Board has no persons through which it can supervise. The "charter" of the Board, as appears from an examination of its statutory powers is not supervisory. The main function of the Board is to promote rehabilitation. Later the following submissions or comments were made by Mr Polson and by the Solicitor-General:-
"MR POLSON: It is my case that the duty that is imposed
on the parole officer to supervise the parolee carries
with it a duty, an expectation, that he will do it
reasonably.
MOHR J: Not to shoot home this act of omission or
commission to the Parole Board. His Honour found on
stronger ground than this incident actually reported.
MR POLSON: In that particular case the parolee was
brought back to the Parole Board for an actual hearing
and they decided to take no action there. We aren't
appealing against the findings of the learned trial
Judge.
MOHR J: You're asking us to expand them.
MR POLSON: Yes, I am inviting this Court to consider it
broadly, but to seize upon that particular incident in
September 1987 as being a clear evidence of negligence,
but taking also on a broader look there are other
matters they could have, and should have done in this
particular case.
MOHR J: The Parole Board should have done.
MR POLSON: The Correctional Services Department through
the parole officer, Correction Services.
MOHR J: You're attacking under s60(a) of the
Correctional Services Act.
MR POLSON: Yes.
MOHR J: The Parole Board is not, as such, but any
liability attaches to a member of the Board, lies
against the Crown that's how you get into court isn't
it?
MR POLSON: Yes.
MOHR J: How do you bring the Correctional Services
Department into the case? They are nothing to do with
the Parole Board as such.
MR POLSON: They still have the jurisdiction over that
person as long as he has an unexpired sentence to serve.
For that reason, I suggest they are vicariously liable.
MOHR J: Not the point, if you're suing pursuant to
s60(a) you're relying on the negligence of the Parole
Board, and the point I'm making is the parole officer is
not an employee or agent of the Parole Board but the
Correctional Services Department. You can't bring the
parole officer's negligence under s60(a), you have to
look to the Board and their actions.
DUGGAN J: The pleadings might be wider than that. I
notice p5 at the bottom p26 of the Statement of Claim
you refer to: 'The defendant State of South Australia
as the person having the administration of the
Correctional Services Act ... of the Parole Board'.
MR DOYLE: We don't deny that if the parole officer was
at fault then the State is liable. The case seems to
have been put it's the Parole Board that's in the
sights.
MOHR J: You don't dispute the wider implications?
MR DOYLE: No, if it is the parole officer, then the
State is liable, though I must say as I read the
Judgment, that's not the case that was put below.
MOHR J: The Judge certainly doesn't go to that, he goes
to that one incident.
MR DOYLE: And focuses on what the Parole Board did.
There is no need for my friend to show the State is
liable for the parole officer. That wasn't the issue
below. The State is liable if the parole officer is
liable, if he's liable so is the State."
7. The comments of the Solicitor-General show us the correct way to look at the case. I would put it a little more widely (and more ponderously). Was any person for whose conduct the respondent is vicariously liable guilty of negligence which caused harm toward and to the appellant?
8. The learned trial Judge said in his reasons:-
"At the commencement of these proceedings before me
counsel for the Crown submitted that the proceedings
disclosed no cause of action and embarked on submissions
of law to support that argument.
After hearing those submissions counsel for the
plaintiff initially submitted that it would be
appropriate for the plaintiff to conclude their evidence
and that at the conclusion of that evidence, if the
Crown thought fit, to pursue their argument of no cause
of action.
After further consideration counsel for the plaintiff
requested that as a preliminary matter that I determine
whether on the matters submitted there was an
appropriate cause of action.
It was agreed between the parties that I should deal
with this application on the basis that the plaintiff
could prove all of the matters as listed in their
Particulars of Claim and as further explained in
submissions by both counsel during discussion before me.
I therefore proceed to rule whether the proceedings
before me establish a cause of action."
9. Perhaps it does not matter in the result. No doubt there was good reason, as it then appeared to counsel, for this case to be divided. But I think it unfortunate. It is often easy to confuse existence of duty with discharge or exercise of duty. It may be difficult here.
10. But the matter does come before us as an appeal from a decision that, on the assumed accuracy of the facts alleged in the Particular of Claim, no cause of action in compensation for harm suffered existed.
11. I must state the facts alleged in the Particulars of Claim. I set out so much of the Particulars of Claim as is relevant:-
"1. The plaintiff is an infant born on the 11th day of
March 1979.
2. The defendant is the person body or entity charged
with the administration of the Correctional Services Act
1982 as amended.
3. At diverse times at Port Adelaide in the said State
the plaintiff was assaulted and raped by one Edward
Everard Sincock (hereinafter referred to as 'Sincock')
between 1st March 1987 and 19th April 1988.
4. Sincock had been released on parole from sentence
for previous similar offences on or about 1st October
1986.
5. On the 25th day of March 1984 Sincock was sentenced
by Matheson J in the Supreme Court of South Australia
following his conviction on eight counts of unlawful
sexual intercourse with and indecent assault of and
abduction of a male person of the age of 14 years.
6. When he was released on parole as aforesaid Sincock
had almost four years of the unexpired sentence to
serve.
7. There were conditions placed upon his release on
parole and these included conditions that he:- a. be of
good behaviour b. carry out faithfully all instructions
and requirements of his parole officer under whose
supervision he was from time to time placed c.
undertake and complete a medical and/or psychiatric
assessment and treatment program at the direction of the
parole officer d. not associate with children under the
age of 14 years except in the presence of another adult.
8. Contrary to condition c. there was no assessment
and treatment program of Sincock undertaken after his
release on parole despite the fact that the psychiatrist
treating him in prison (Dr Moyle) reported to the parole
board that Sincock's paedophilic tendencies remained
with him.
9. Despite the requirement of paragraph d. above in
the conditions of parole and despite the report to it of
the psychiatrist Dr Moyle quoted above the board and its
parole officer failed to institute a surveillance
program in respect of Sincock following his release upon
parole.
10. Sincock made weekly and then fortnightly reports at
the Correctional Services Office at Port Adelaide but no
attempt was made to check on his home activities
although he was living at Port Adelaide close to those
office premises.
11. In or about February of 1987 Sincock joined a darts
team at the Clubhouse Hotel at Port Adelaide and shortly
after that commenced associating with children under the
age of 14 without the presence of another adult contrary
to the condition described in paragraph d. above of his
conditions of parole.
12. From the period of approximately March 1987 to
April 1988 Sincock associated with children under the
age of 14 contrary to the provisions aforesaid of his
parole conditions, being at least eight such children
including the plaintiff.
13. These associations were by way of such children
staying overnight unsupervised with the man Sincock at
his flat premises at Ship Street Port Adelaide.
14. From on or about the 17th day of September 1987 the
defendant by his servants and agents was aware that
these associations were occurring or likely to occur
from information received from Sincock's associates.
15. Despite this information no surveillance program
was instituted and Sincock's mere denial of any lack of
supervision in the association was accepted without
objective testing.
16. In particular the version put forward by Sincock
was accepted without testing same with the person whom
he alleged had provided supervision in respect of the
association as reported to the defendant's servants and
agents as aforesaid.
17. Subsequent to learning of the report that Sincock
had or may have broken the condition of his parole
relating to non association with children under the age
of 14 years without supervision, the Board failed to
direct itself or any other servant or agent of the
defendant to obtain objective evidence as to whether
such a breach had occurred.
18. In lieu of such objective investigation the Board
and the parole officers concerned accepted the word of
Sincock that there was another adult present being the
mother of the boy concerned when he stayed at Sincock's
house.
19. This failure allowed or permitted Sincock to
continue to associate with children under the age of 14
years contrary to his parole condition as aforesaid and
he did so to the extent of at least eight separate
associations including an association with the infant
plaintiff.
20. These associations consisted of boys between the
ages of 9 and 13 years as known to the plaintiff staying
overnight at Sincock's house premises without adult
supervision, when numerous sexual assaults took place
upon those boys, including numerous assaults upon and
concerning the infant plaintiff.
21. The plaintiff alleges that these assaults took
place at least weekly on one or more of the boys
concerned at Sincock's premises and further that these
assaults could and should have been detected by the
defendant and his servants and agents if a thorough and
conscientious supervision of Sincock had been made
including investigation of the allegation against
Sincock as aforesaid made in September 1987.
22. The assaults on the plaintiff continued until the
defendant's arrest by the Port Adelaide CIB on or about
19th April 1988.
23. Upon search of the defendant's premises by the CIB
officers, they found paedophilic pornographic material
including pictures of naked children."
And -
"25. As a result of the sexual assaults upon and
concerning him by Sincock the infant plaintiff was
severely traumatised and has suffered loss and damage.
26. The defendant as the person having the
administration of the Correctional Services Act,
including control of and responsibility for the officers
of that department and in particular those in charge
Sincock, and as the person or entity responsible for the
acts and omissions of the parole board, in the knowledge
that Sincock was a convicted paedophile and according to
the psychiatric report by Dr Moyle on or before his
release on parole that Sincock possessed and would
continue to possess (in all likelihood) a predisposition
towards paedophilia, and knowing according to general
case records that paedophiles are persons liable to
continue with or revert to paedophilic behaviour without
appropriate supervision and long term psychiatric
treatment, owed a duty of care interalios (sic) to the
infant plaintiff as follows:-
a. To supervise Sincock adequately upon his release.
b. To provide such resources and give such directions
as would ensure Sincock's adequate supervision.
c. To maintain and enforce and if necessary add to via
the parole board the directions and conditions
applicable to Sincock to ensure that such supervision
was adequate.
d. To ensure that the level of supervision was such as
to provide a meaningful surveillance of Sincock and
protection of any under age persons with whom he may
come in contact.
e. To investigate in an objective and competent manner
any evidence of breach of parole conditions by Sincock.
f. To revoke Sincock's parole upon substantiated
evidence of breach of any such condition.
g. To satisfy himself by reasonable efforts that the
parole conditions were being complied with in fact.
h. To make or to order such objective checks as may be
necessary to so satisfy himself.
27. The defendant negligently failed in breach of his
duty or duties of care as above and in particular the
defendant failed to supervise Sincock in an adequate and
proper manner and further to enforce the conditions of
parole and take all reasonable steps to ensure
compliance therewith by Sincock.
28. As a result of such negligence and failures the man
Sincock was permitted to associate and to continue to
associate with the infant plaintiff contrary to the
terms of his parole and further to commit a series of
rapes upon the plaintiff of which he was convicted as
aforesaid in 1989.
29. PARTICULARS OF NEGLIGENCE The defendant by his
servants and agents the members of the parole board was
negligent in that he:-
a. Failed to supervise Sincock in an adequate and
proper manner following Sincock's release upon parole.
b. Failed to administer in a proper manner the
conditions for parole set by the board.
c. Failed to set proper terms and conditions for the
said release on parole so as to provide for supervision
of Sincock that was reasonable and proper in all the
circumstances of his case.
d. Failed to take all reasonable steps and give all
reasonable directions accordingly.
e. Failed to order and/or consider in a proper manner
psychiatric reports on and treatment of Sincock.
f. Failed to act on such reports as it did receive and
to give all necessary and proper directions for the
supervision and treatment of Sincock.
g. Failed to revoke Sincock's parole when there was
reasonable evidence of breach thereof.
h. Failed to investigate the evidence of breach or
breaches of parole so as to satisfy itself that no such
breach had occurred.
i. Failed to revoke Sincock's parole and right to be at
liberty when he knew or ought to have known or could by
reasonable enquiry have discovered that a serious and
ongoing breach or breaches of parole conditions had
occurred.
The defendant by his servants and agents the officers of
the Department of Correctional Services was negligent in
that he:-
a. Failed to supervise Sincock in an adequate and
proper manner following his release upon parole.
b. Failed to administer in a proper manner the
conditions for parole set by the board.
c. Failed to order Sincock to undergo such psychiatric
treatment as he knew or ought to have known was required
or likely to be required to reduce the chances of
re-offending by Sincock by the commission of offences
similar to those for which he had been convicted in
1984.
d. In conducting supervision of Sincock, failed to have
regard to psychiatric evidence and opinion that his
paedophilic tendencies would or could continue.
e. Failed to make spot checks on Sincock's house
premises including after business hours to ascertain
whether parole conditions were being satisfied.
f. Failed to detect during the period of Sincock's
liberty on parole the presence of pornographic
paedophilic magazines at his home and further the
evidence of the presence of at least 8 persons under the
prescribed age at Sincock's premises at diverse times.
g. Failed to take all necessary steps to satisfy
himself objectively as to Sincock's non breach of parole
conditions in or about September 1987 and thereafter.
h. Acted upon Sincock's unverified word that there had
been no such breach when it was or ought to have been
obvious that it was unsafe to do so.
i. Failed to recommend to the parole board a tightening
of the surveillance procedures and independent
verification of Sincock's activities.
30. As a result of the said rapes and the said
negligence of the defendant the plaintiff has been
severely traumatised and has suffered loss and damage."
12. It will be seen that the Parole Board and the Department of Correctional Services is each "blamed". It is said that the negligence of these "bodies" brings home vicarious liability to the respondent. But I hark back to the concession of the Solicitor-General. Was any person or body for whom the defendant could be vicariously liable guilty of negligence? That will be the ultimate issue. I attempt to decide the appeal on as narrow, as limited, a base as I can. But I must consider it in a general sense as well as in a particular sense. Put broadly the question might well be whether the defendant owed a general duty to those who might be injured by released criminals. But more narrowly it could be asked whether it owes a duty of care to those whom it could foresee might be so harmed and who stood in appropriate proximity to the respondent. Of course, if a duty is owed its exercise would no doubt be committed to the Parole Board or to the Department of Correctional Services or such other body or the person as the respondent chose. But the case should in the end be put more narrowly in relation to the existence of duty. The more narrow approach concentrates on the question whether the duty was owed to this plaintiff in these circumstances.
13. Of course, no person could be held to owe a duty of care to another unless the proximity of which I have spoken exists between the parties. And it is well recognised now that, as the Solicitor-General wrote in his Outline:-
"The existence of a duty of care depends upon more than
foreseeability. Proximity must be established and that
includes policy considerations and the question of what
is fair and reasonable."
14. The Solicitor-General cited the cases of Shire of Sutherland v Heyman (1984-1985) 157 CLR 424 and the more recent case of Gala v Preston (1990-1991) 172 CLR 243. There (at pp252-253) the majority said:-
"However, it is necessary to take account of
developments affecting the concept of the duty of care
since Smith v Jenkins, Progress and Properties and
Jackson v Harrison were decided. Commencing with
Jaensch v Coffey (1984) 155 CLR 549, this Court, in a
series of decisions, has accepted that a relevant duty
of care will arise under the common law of negligence
only in a case where the requirement of a relationship
of proximity between the plaintiff and the defendant has
been satisfied: see Sutherland Shire Council v Heyman
supra at 461-462, 506-507; Stevens v Brodribb Sawmilling
Co Pty Ltd (1986) 160 CLR 16 at pp 30,50-52; San
Sebastian Pty Ltd v The Minister (1986) 162 CLR 340 at
pp354-355; Cook v Cook (1986) 162 CLR 376 at pp381-382.
The requirement of proximity constitutes the general
determinant of the categories of case in which the
common law of negligence recognizes the existence of a
duty to take reasonable care to avoid a reasonably
foreseeable and real risk of injury. In determining
whether the requirement is satisfied in a particular
category of case in a developing area of the law of
negligence, the relevant factors will include policy
considerations."
15. Gala v Preston was a case of "illegal use of a car". But in considering the idea of proximity we must consider public policy. I have no doubt that Lord Atkin thought about public policy when he wrote his well known remarks in Donoghue v Stevenson (1932) AC 562. I will come back to Lord Atkin. 12 In the light of these and other cases, especially those "about the police" it might be difficult to attribute any duty of care to a large class of persons. It would not be reasonable, in particular, to impose such a duty on the defendant "through" the Parole Board nor "through" the Department of Correctional Services. The Board is concerned mainly with rehabilitation. The idea of a general duty of supervision "through" the Department of Correctional Services is more attractive. But only on the surface. It is one thing to say, as in Dorset Yacht Co Ltd v Home Office (1970) AC 1004, that a duty to avoid escape exists. It is quite another thing to say that the Department which does not decide (subject to some administrative duties or assumed duties) when a prisoner should be released on or what terms should have a duty of general supervision.
16. In the case of the Governors of the Peabody Donation Fund v Sir Lindsay Parkinson and Co Ltd and Others (1985) AC 210 Lord Keith (after discussing Donoghue v Stevenson and some later comments on the remarks of Lord Atkin) said (at pp240-241):-
"The true question in each case is whether the
particular defendant owed to the particular plaintiff a
duty of care having the scope which is contended for,
and whether he was in breach of that duty with
consequent loss to the plaintiff. A relationship of
proximity in Lord Atkin's sense must exist before any
duty of care can arise, but the scope of the duty must
depend on all the circumstances of the case. In Dorset
Yacht Co v Home Office (supra at 1038) Lord Morris of
Borth-y-Gest, after observing that at the conclusion of
his speech in Donoghue v Stevenson (supra), Lord Atkin
said that it was advantageous if the law 'is in
accordance with sound common sense' and expressing the
view that a special relation existed between the prison
officers and the yacht company which gave rise to a duty
on the former to control their charges so as to prevent
them doing damage, continued, at p1039: 'Apart from this
I would conclude that, in the situation stipulated in
the present case, it would not only be fair and
reasonable that a duty of care should exist but that it
would be contrary to the fitness of things were it not
so. I doubt whether it is necessary to say, in cases
where the court is asked whether in a particular
situation a duty existed, that the court is called upon
to make a decision as to policy. Policy need not be
invoked where reason and good sense will at once point
the way. If the test as to whether in some particular
situation a duty of care arises may in some cases have
to be whether it is fair and reasonable that it should
so arise, the court must not shrink from being the
arbiter. As Lord Radcliffe said in his speech in Davis
Contractors Ltd v Fareham Urban District Council (1956)
AC 696, 728, the court is "the spokesman of the fair and
reasonable man."'
So in determining whether or not a duty of care of
particular scope was incumbent upon a defendant it is
material to take into consideration whether it is just
and reasonable that it should be so."
17. The other Law Lords agreed. In the case of The Council of the Shire of Sutherland v Heyman (supra) Gibbs CJ, with whose comments Wilson J agreed, said that the proximity required before a duty of care can arise was as stated by Lord Keith in Peabody's Case.
18. When the functions and duties of the Board and the department are considered I think we must say that the defendant could not, through them, be said to have a general duty of care to supervise the conduct of released criminals. Nor is there any other way (ie other than through the Board or the department) by which such a duty could be imposed.
19. Moreover, I do not think that, despite foreseeability, "proximity" in the relevant sense existed between defendant and released criminals generally merely by reason of those criminals being released criminals subject to terms and conditions imposed by the Board.
20. But I think it different when information comes to the defendant. Of course, it depends upon what sort of information. If it be information revealing that there is a 14 breach of a condition of parole, which breach could cause harm to foreseeable persons, then I think that proximity arises. And I think that questions of policy would dictate the existence of a duty of care once that type of information is received. I come back to Lord Atkin as I promised. When I speak of "proximity" I speak of a relationship of proximity in the Atkinian sense between "foreseen" victim and the defendant. In Jaensch v Coffey (supra 581, 582) Deane J said:-
"The result has been that, in cases involving direct
physical damage to person or property, separate
reference to any notion of proximity has come to be
commonly regarded as either unnecessary or as being
appropriately formulated in terms of being satisfied if
the physical injury sustained was of a kind which was
reasonably foreseeable. This approach is
unobjectionable provided that one does not lose sight of
the fact that reasonable foreseeability of injury was
propounded by Lord Atkin in Donoghue v Stevenson as
constituting, on its own, no more than an incomplete
determinant of a common law duty of care in the sense
that such a duty of care will not be owed to a
particular plaintiff unless the requirement of proximity
in the relationship between plaintiff and defendant with
respect to the relevant act and injury is satisfied."
21. And in Heyman's Case (supra) Deane J said (p497, 498):-
"The requirement of proximity is directed to the
relationship between the parties in so far as it is
relevant to the allegedly negligent act or omission of
the defendant and the loss or injury sustained by the
plaintiff. It involves the notion of nearness or
closeness and embraces physical proximity (in the sense
of space and time) between the person or property of the
plaintiff and the person or property of the defendant,
circumstantial proximity such as an overriding
relationship of employer and employee or of a
professional man and his client and what may (perhaps
loosely) be referred to as causal proximity in the sense
of the closeness or directness of the causal connexion
or relationship between the particular act or course of
conduct and the loss or injury sustained. It may
reflect an assumption by one party of a responsibility
to take care to avoid or prevent injury, loss or damage
to the person or property of another or reliance by one
party upon such care being taken by the other in
circumstances where the other party knew or ought to
have known of that reliance. Both the identity and the
relative importance of the factors which are
determinative of an issue of proximity are likely to
vary in different categories of case. That does not
mean that there is scope for decision by reference to
idiosyncratic notions of justice or morality or that it
is a proper approach to treat the requirement of
proximity as a question of fact to be resolved merely by
reference to the relationship between the plaintiff and
the defendant in the particular circumstances. The
requirement of a relationship of proximity serves as a
touchstone and control of the categories of case in
which the common law will adjudge that a duty of care is
owed. Given the general circumstances of a case in a
new or developing area of the law of negligence, the
question what (if any) combination or combinations of
factors will satisfy the requirement of proximity is a
question of law to be resolved by the processes of legal
reasoning, induction and deduction. On the other hand,
the identification of the content of that requirement in
such an area should not be either ostensibly or actually
divorced from notions of what is 'fair and reasonable'
(cf per Lord Morris of Borth-y-Gest, Dorset Yacht Co v
Home Office (supra 1038-1039) and per Lord Keith of
Kinkel, Peabody Fund v Parkinson (supra at 240-241)), or
from the considerations of public policy which underlie
and enlighten the existence and content of the
requirement."
22. I think that these observations support the view that in this case, on the assumed facts of knowledge of disobedience of a condition, a relationship of proximity between plaintiff and defendant did arise.
23. But we must consider the cases "about the police". As I repeat, I put aside the errant Borstal boys. They were in custody. Liability attached "to the Home office" for allowing the escape. The case does not help or hinder here (Home Office v Dorset Yacht Co Ltd supra at 1035).
24. In Hill v Chief Constable of West Yorkshire 1989 1 AC 53 the daughter of the plaintiff was killed at night in a street within the area under the control of the defendant. Her attacker had committed a series of murders and attempted murders on young women in that area. The plaintiff claimed, on behalf of the estate of his deceased daughter, in negligence against the defendant. He contended that the defendant should have caused the attacker to be arrested prior to the relevant attack. The House of Lords held (as accurately summarised in the headnote which I cite):-
"Held, dismissing the appeal, (per Lord Keith of Kinkel,
Lord Brandon of Oakbrook, Lord Oliver of Aylmerton and
Lord Goff of Chieveley) that, although police officers
could be liable in tort to persons injured as a direct
result of their acts or omissions, there was no general
duty of care owed by them to identify or apprehend an
unknown criminal, nor did they owe a duty of care to
individual members of the public who might suffer injury
through the criminal's activities save where their
failure to apprehend him had created an exceptional
added risk, different in incidence from the general risk
to the public at large from criminal activities, so as
to establish sufficient proximity of relationship
between the police officers and the victims of the
crime; that although it could have been reasonably
foreseen that S, if not apprehended, would be likely to
harm young female members of the public, the fact that
the plaintiff's daughter had been young and female did
not of itself place her at special risk and there being
no other additional characteristics capable of
establishing a duty of care owed towards her by the
defendant in relations to the apprehension of S the
judge had been right to strike out the statement of
claim as disclosing no cause of action."
25. The House of Lords held, too, that as a matter of public policy the police were immune from actions for negligence in respect of their activities in the investigation and suppression of crime. Lord Templeman said, too (at pp64-65):-
"It may be, and we all hope that the lessons of the
Yorkshire Ripper case have been learned, that the
methods of handling information and handling the press
have been improved, and that co-operation between
different police forces is now more highly organised.
The present action would not serve any useful purpose in
that regard. The present action could not consider
whether the training of the West Yorkshire police force
is sufficiently thorough, whether the selection of
candidates for appointment or promotion is defective,
whether rates of pay are sufficient to attract recruits
of the required calibre, whether financial restrictions
prevent the provision of modern equipment and
facilities, or whether the Yorkshire police force is
clever enough and if not, what can and ought to be done
about it. The present action could only investigate
whether an individual member of the police force
conscientiously carrying out his duty was negligent when
he was bemused by contradictory information or
overlooked significant information or failed to draw
inferences which later appeared to be obvious. That
kind of investigation would not achieve the object which
Mrs Hill desires. The efficiency of a police force can
only be investigated by an inquiry instituted by the
national or local authorities which are responsible to
the electorate for that efficiency. Moreover, if this
action lies, every citizen will be able to require the
court to investigate the performance of every policeman.
If the policeman concentrates on one crime, he may be
accused of neglecting others. If the policeman does not
arrest on suspicion a suspect with previous convictions,
the police force may be held liable for subsequent
crimes. The threat of litigation against a police force
would not make a policeman more efficient. The
necessity for defending proceedings, successfully or
unsuccessfully, would distract the policeman from his
duties."
26. Lord Keith said at pp62-64:-
"The Dorset Yacht case was concerned with the special
characteristics or ingredients beyond reasonable
foreseeability of likely harm which may result in civil
liability for failure to control another man to prevent
his doing harm to a third. The present case falls
broadly into the same category. It is plain that vital
characteristics which were present in the Dorset Yacht
case and which led to the imposition of liability are
here lacking. Sutcliffe was never in the custody of the
police force. Miss Hill was one of a vast number of the
female general public who might be at risk from his
activities but was at no special distinctive risk in
relation to them, unlike the owners of yachts moored off
Brownsea Island in relation to the foreseeable conduct
of the Borstal boys. It appears from the passage quoted
from the speech of Lord Diplock in the Dorset Yacht case
that in his view no liability would rest upon a prison
authority, which carelessly allowed the escape of an
habitual criminal, for damage which he subsequently
caused, not in the course of attempting to make good his
getaway to persons at special risk, but in further
pursuance of his general criminal career to the person
or property of members of the general public. The same
rule must apply as regards failure to recapture the
criminal before he had time to resume his career. In
the case of an escaped criminal his identity and
description are known. In the instant case the identity
of the wanted criminal was at the material time unknown
and it is not averred that any full or clear description
of him was ever available. The alleged negligence of
the police consists in a failure to discover his
identity. But if there is no general duty of care owed
to individual members of the public by the responsible
authorities to prevent the escape of a known criminal or
to recapture him, there cannot reasonably be imposed
upon any police force a duty of care similarly owed to
identify and apprehend an unknown one. Miss Hill cannot
for this purpose be regarded as a person at special risk
simply because she was young and female. Where the
class of potential victims of a particular habitual 18
criminal is a large one the precise size of it cannot in
principle affect the issue. All householders are
potential victims of an habitual burglar, and all
females those of an habitual rapist. The conclusion
must be that although there existed reasonable
foreseeability of likely harm to such as Miss Hill if
Sutcliffe were not identified and apprehended, there is
absent from the case any such ingredient or
characteristic as led to the liability of the Home
Office in the Dorset Yacht case. Nor is there present
any additional characteristic such as might make up the
deficiency. The circumstances of the case are therefore
not capable of establishing a duty of care owed towards
Miss Hill by the West Yorkshire Police. That is
sufficient for the disposal of the appeal. But in my
opinion there is another reason why an action for
damages in negligence should not lie against the police
in circumstances such as those of the present case, and
that is public policy. In Yuen Kun Yeu v
Attorney-General of Hong Kong (1988) AC 175, 193, I
expressed the view that the category of cases where the
second stage of Lord Wilberforce's two stage test in
Anns v Merton London Borough Council (1978) AC 728,
751-752 might fall to be applied was a limited one, one
example of that category being Rondel v Worsley (1969) 1
AC 191. Application of that second stage is, however,
capable of constituting a separate and independent
ground for holding that the existence of liability in
negligence should not be entertained. Potential
existence of such liability may in many instances be in
the general public interest, as tending towards the
observance of a higher standard of care in the carrying
on of various different types of activity. I do not,
however, consider that this can be said of police
activities. The general sense of public duty which
motivates police forces is unlikely to be appreciably
reinforced by the imposition of such liability so far as
concerns their function in the investigation and
suppression of crime. From time to time they make
mistakes in the exercise of that function, but it is not
to be doubted that they apply their best endeavours to
the performance of it. In some instances the imposition
of liability may lead to the exercise of a function
being carried on in a detrimentally defensive frame of
mind. The possibility of this happening in relation to
the investigative operations of the police cannot be
excluded. Further it would be reasonable to expect that
if potential liability were to be imposed it would be
not be uncommon for actions to be raised against police
forces on the ground that they had failed to catch some
criminal as soon as they might have done, with the
result that he went on to commit further crimes. While
some such actions might involve allegations of a simple
and straightforward type of failure - for example that a
police officer negligently tripped and fell while
pursuing a burglar - others would be likely to enter
deeply into the general nature of a police
investigation, as indeed the present action would seek
to do. The manner of conduct of such an investigation
must necessarily involve a variety of decisions to be
made on matters of policy and discretion, for example as
to which particular line of inquiry is most
advantageously to be pursued and what is the most
advantageous way to deploy the available resources.
Many such decisions would not be regarded by the courts
as appropriate to be called in question, yet elaborate
investigation of the facts might be necessary to
ascertain whether or not this was so. A great deal of
police time, trouble and expense might be expected to
have to be put into the preparation of the defence to
the action and the attendance of witnesses at the trial.
The result would be a significant diversion of police
manpower and attention from their most important
function, that of the suppression of crime. Closed
investigations would require to be reopened and
retraversed, not with the object of bringing any
criminal to justice but to ascertain whether or not they
had been competently conducted. I therefore consider
that Glidewell LJ, in his judgment in the Court of
Appeal (1988) QB 60, 76 in the present case, was right
to take the view that the police were immune from an
action of this kind on grounds similar to those which in
Rondel v Worsley (1969) 1 AC 191 were held to render a
barrister immune from actions for negligence in his
conduct of proceedings in court."
27. I quote the headnote is Osman v Ferguson (1993) 4 All ER 344:-
"P, a schoolteacher, formed an unhealthy attachment to a
15-year old male pupil and harassed him by accusing him
of deviant sexual practices, following him to his home
and alleging a sexual relationship with a friend. In
May 1987 P changed his surname to that of the boy's and
damaged property connected with the boy by throwing a
brick through a window of the boy's home, smearing dog
excrement on the front door and slashing the tyres of
the car of the boy's father. In mid-1987 P was
dismissed from the school, but continued the harassment.
The police were aware of those facts and in the latter
part of 1987 P even told a police officer that the loss
of his job was distressing and there was a danger that
he would do something criminally insane. In December
1987 P deliberately rammed a vehicle in which the boy
was a passenger. The police laid an information against
P in January 1988 alleging driving without due care and
attention but it was not served. In March P followed
the boy and his family to their flat and shot and
severely injured the boy and killed his father. The
mother, as administratrix of the father's estate, and
the boy brought an action against, inter alios, the
Commissioner of Police of the Metropolis alleging
negligence in that although the police had been aware of
P's activities since May 1987 they had failed to
apprehend or interview him, search his home or charge
him with a more serious offence before March 1988. The
commissioner's application to strike out the
statement of claim as disclosing no reasonable cause of
action was dismissed. The commissioner appealed to the
Court of Appeal. Held - As the second plaintiff and his
family had been exposed to a risk from P over and above
that of the public there was an arguable case that there
was (per McGowan and Simon Brown LJJ) a very close
degree of proximity amounting to a special relationship
between the plaintiffs' family and the investigating
police officers. However (per curiam), the existence of
a general duty on the police to suppress crime did not
carry with it liability to individuals for damage caused
to them by criminals whom the police had failed to
apprehend when it was possible to do so. It would be
against public policy to impose such a duty as it would
not promote the observance of a higher standard of care
by the police and would result in the significant
diversion of police resources from the investigation and
suppression of crime."
28. McGowan LJ said at pp 353-354:-
"Secondly, Mr Hendy submits that the ratio of Hill's
case is that policy decisions are protected by public
policy immunity but operational decisions are not and
that, whereas the failures in Hill's case were of a
policy nature, those in the present case were of an
operational nature. In my judgment, such a distinction
is not to be supported by the speeches in Hill's case.
Indeed I consider such a dividing line to be utterly
artificial and impossible to draw in the present case.
I should add that Mr Hendy placed reliance on the
judgment of Henry J in the Canadian case of Doe v
Metropolitan Toronto (Municipality) Comrs of Police
(1989) 58 DLR 396. This does contain material
supporting Mr Hendy's argument, but I do not find it
helpful, first, because it seems to me to be directly
contrary to the reasoning in Hill's case which is of
course binding on us and, secondly, because the
principle of public policy has not yet been introduced
into the law of Canada.
Mr Hendy's final point is that, if the class of victim
is sufficiently proximate (as he says the victims here
were) and sufficiently small, the public policy argument
may not apply. I cannot accept this submission. Lord
Keith plainly treats public policy as a separate point
which is not reached at all unless there is a duty of
care. If Mr Hendy were right, public policy would not
be a separate argument at all because if a plaintiff
were proved to be sufficiently proximate and a member of
a sufficiently small class, public policy would not
arise.
In giving judgment in the present case, Sir Peter Pain
said: 'Now my view is that the plaintiffs are going to
have a distinctly uphill task...But I do not think that
there is so obviously no case that it would be right to
strike the action out on those grounds.' I do not take
that view. In my judgment the House of Lords decision
on public policy in Hill's case dooms this action to
failure as against the second defendant.
As a last resort, Mr Hendy sought to place reliance on
the words of Browne Wilkinson V-C in Lonrho v Tebbit
(1991) 4 All ER 973 at 979: 'A claim should only be
struck out in a plain and obvious case. The difficulty
arises where, as in the present case, a claim to strike
out depends upon the decision of one or more difficult
points of law. In such a case, the judge should
normally refuse to entertain such a claim to strike out.
But, if in a particular case the judge is satisfied that
the decision of the point of law at that stage will
either avoid the necessity for trial altogether or
render the trial substantially easier and cheaper, he
can properly determine such difficult point of law on
the striking-out application...'
Mr Hendy submitted that the present was a case depending
on the decision of one or more difficult points of law
and that we should therefore refuse to entertain the
claim to strike out. I cannot agree. I consider this a
plain and obvious case falling squarely within a House
of Lords decision. I would therefore allow the appeal."
29. Simon Brown LJ agreed with McGowan LJ. Beldam LJ said at p354:-
"I agree that on grounds of public policy the
plaintiffs' claims are not maintainable against the
second defendant. For my part I would prefer not to
express in an interlocutory appeal an opinion whether
the facts set out in the statement of claim are, if
proved, sufficient to establish a relationship
sufficiently proximate to found a duty of care owed to
the plaintiffs by the officers of the second defendant's
force. Therefore for the reasons given by McGowan LJ,
accordingly, I agree that this appeal should be
allowed."
30. The same result (no duty) was reached in another Court of Appeal case dealing with the police, namely, Alexandrou v Oxford (1993) 4 All ER 328. In these cases public policy (amongst other considerations) dictated that the Court decide that no duty was owed to citizens generally by "the police" nor indeed to a class of citizens whom they might foresee as likely to suffer harm from a (say) failing to arrest someone. And the cases which I have mentioned earlier emphasise considerations of public policy leading to these types of conclusion. But I think that in those cases, including the case about the police, absence of the adequate proximity played a part in the decision. And, of course, the Court emphasised that a court cannot sensibly investigate just when an arrest should have been made. The situation is different here. Here a convicted paedophile was released on stringent conditions of parole. He did not comply with the obligation to refrain from associations with children under the age of 14 except in the presence of another adult. He was blatant in his non-compliance. Still I do not think that any general duty on the defendant to supervise his compliance with conditions of parole arose. But in the particular facts which we are to assume to have been proved I think the situation is different. Those Particular Facts are those alleged in paras 14, 15, 16, 17 and 18 of the Particulars of Claim (see supra).
31. The defendant through its employees learnt of the possible breach of conditions and knew that the children were associating with Sincock within his home. The defendant learnt of it "from Sincock's associates". The explanation given by Sincock that there was another adult present must be considered as things stood at the time of its being proffered. At that time none of the pornographic material had been found. But could not a duty of care here have arisen once non-compliance was realised. It was, to speak somewhat loosely, dangerous non-compliance. The respondent knew that young people stood in jeopardy from the released criminal. I repeat that we are not concerned with the discharge of the duty but with its existence. Something particular had happened. A released paedophile was known to have associated with children under 14. It was a case different to the "police cases" where the police had to be allowed to move as they though fit in their investigations. No convicted person existed in those cases. If an officer in charge of a prison knows that a prisoner has escaped, has a weapon and is moving towards his enemy's house should not the officer come under a duty of care to do something to safeguard that enemy. I think he would. How do we decide to whom a duty is owed? We do so with the assistance of Lord Atkin. Let me repeat the well known words in Donoghue v Stevenson (supra at p580):-
"At present I content myself with pointing out that in
English law there must be, and is, some general
conception of relations giving rise to a duty of care,
of which the particular cases found in the books are but
instances. The liability for negligence, whether you
style it such or treat it as in other systems as a
species of 'culpa', is no doubt based upon a general
public sentiment of moral wrongdoing for which the
offender must pay. But acts or omissions which any
moral code would censure cannot in a practical world be
treated so as to give a right to every person injured by
them to demand relief. In this way rules of law arise
which limit the range of complainants and the extent of
their remedy. The rule that you are to love your
neighbour becomes in law, you must not injure your
neighbour; and the lawyer's question, Who is my
neighbour? receives a restricted reply. You must take
reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your
neighbour. Who, then, in law is my neighbour? The
answer seems to be - persons who are so closely and
directly affected by my act that I ought reasonably to
have them in contemplation as being so affected when I
am directing my mind to the acts or omissions which are
called in question."
32. As has been mentioned, these words have been discussed many times. Still they stand as an authoritative guide to deciding whether a duty of care exists or not. To Lord Atkin proximity was determined by the question of the parties being "neighbours" as he defined that word for the purposes of "duty".
33. In the particular circumstances of this case I think that the relevant relationship of proximity was established by the knowledge which the defendant had. Foreseeability is established. Causation is established. When I say "established" I mean established on the assumed facts on which we are to decide. The defendant could have foreseen harm to these young associates of Sincock. The plaintiff was one of them. He was within the ambit of proximity and foreseeability. Nicely balanced as the issue of public policy is, I think that public policy would not deny a duty of care towards the plaintiff imposed on the defendant in these circumstances. The matters which operated as considerations of policy in other cases do not apply. I think the learned trial Judge was in error in denying the existence of a duty of care. I think the defendant did come under a duty of care to take reasonable steps to safeguard the plaintiff once it (the defendant) through its officers knew or even had reason to suspect that failure to comply with the conditions of parole requiring Sincock not to associate with children under 14 unless in the company of others had been broken.
34. I would allow the appeal. I would set aside the order of the learned trial Judge. I would return the matter to him to determine the issue in the light of these reasons.
JUDGE2 MOHR J I agree.
JUDGE3 DUGGAN J The facts of this matter are summarised in the judgment of Bollen J and I am in general agreement with the views expressed by him.
2. The learned District Court judge made an order dismissing the appellant's action on the ground that the statement of claim disclosed no cause of action. In my view at least some of the difficulty which has been encountered in this matter arises from the factual basis upon which the application was considered. In an application such as this the court looks at the words of the pleading alone. (Egan v Commonwealth Minister for Transport (1976) 14 SASR 445 at 448). The plaintiff is entitled to have the application determined on the assumption that the facts pleaded can be proved. In the present case further facts were referred to by counsel while the matter was being argued before the learned judge and the case relied on to establish negligence differed somewhat in emphasis from the way in which it was presented on appeal.
3. The trial judge's attention was focused on the role of the Parole Board. He referred to a Parole Board meeting which was not specifically referred to in the pleadings. He said:
"On or about the 17th September 1987 a report was made
to the Parole Board that Sincock had a 14 year old boy
with him (not being the plaintiff) in his flat which of
course was contrary to his conditions of parole.
Sincock was brought before the Parole Board to explain
the circumstances and he told them that the child was
being supervised by an adult that is the child's mother
and that he Sincock and the child's mother had formed a
close relationship and that the child's mother did not
know of Sincock's convictions and that he did not wish
the officers of the Parole Board to investigate and thus
cause his female friend to become aware of his
convictions. The Parole Board accepted Sincock's
explanation without any inquiry. Sincock's explanation
was false and in fact Sincock continued to associate
with a number of children under the age of 14 years
contrary to his parole condition and did so to the
extent of at least 8 separate occasions including an
association with the infant plaintiff. These
associations consisted of boys between the ages of 9 -
13 years staying overnight at Sincock's house premises
without adult supervision when numerous consequential
assaults took place on those boys including numerous
assaults upon and concerning the infant plaintiff.
These assaults on the plaintiff continued until the
defendant's arrest by the Port Adelaide CIB on or
about 19th April 1988. Upon search of the defendant's
premises by the CIB officers they found paedophilia
pornographic material including pictures of naked
children. The plaintiff contends that Sincock's
interest in paedophilia was then current and such a
search and observation should have been made by the
defendant's servants and agents pursuant to proper
supervision after his release on parole. The plaintiff
says that as a result of the sexual assaults upon and
concerning him by Sincock the infant plaintiff was
severely traumatised and has suffered loss and damage."
4. The learned trial judge then summarised the matter as follows:
"The three principal issues before me are:-
(1) Was the Parole Board negligent?
(2) Are these proceedings precluded from succeeding as a
matter of public policy?
(3) If the Parole Board are found to be negligent do
they have a duty of care to the public generally flowing
from that breach or does the plaintiff have to show a
proximity between the plaintiff and the defendant?"
5. It is appropriate at this point to have regard to the function and purpose of the Parole Board. The setting up of the Board is provided for in s.55 of the Correctional Services Act, 1982. It must release a prisoner in respect of whom a non-parole period has been fixed upon completion of the non-parole period less remissions. The Board is required to impose certain conditions of parole and may, in its discretion, fix other conditions considered appropriate. It may vary or revoke conditions and it is given power to cancel parole upon breach of any condition. The Board is authorised to conduct hearings appropriate to the discharge of its functions.
6. In my view it cannot be said that the respondent is to be held liable for the failure of the Parole Board to fix conditions of parole which might have prevented crimes committed by the parolee whilst on parole. The Board is required to release the prisoners. There is often a clear possibility, in many cases a likelihood, that they will re-offend, but the requirement of the relationship of proximity and the considerations of public policy relevant to that relationship would exclude any liability based upon failure to adequately supervise a parolee who might constitute a danger to the community generally or to a particular but nevertheless broad class of persons in the community. (cf Hill v Chief Constable of West Yorkshire (1989) 1 AC 53 and contrast the distinctive risk which the plaintiff in Home Office v Dorset Yacht Co. Ltd
(1970) AC 1004 faced if the Borstal boys were allowed to escape).
7. These considerations were appreciated by the learned judge. However the matter does not end there. When regard is had to the allegations made in the statement of claim there is at least room to argue that a sufficiently proximate relationship between appellant and respondent was brought about by reason of certain events which, it is pleaded, came to the attention of the parole officers employed by the Department of Correctional Services who were required to supervise the prisoner who had been released. If the assertions made in the statement of claim are taken at their highest, then the parolee, during the period from March 1987 to April 1988, associated with children under the age of 14 years contrary to the conditions of his parole. The children stayed with the man overnight unsupervised. The respondent through its servants or agents was aware that these associations were occurring (the statement of claim includes the alternative assertion that the respondent knew they were likely to occur) and inadequate action was taken to prevent such conduct. If those or similar circumstances can be established then I do not think that the appellant's case is so obviously untenable that it should be dismissed at this stage.
8. Beyond that I think it unwise to go. There are many combinations of circumstances arising out of the statement of claim which could be debated, but the concerns expressed by Cooke J in Taranaki Catchment Commission and Regional Water Board v R and D Roach Ltd (1983) NZLR 641 at 644 are applicable with equal force to the present case. His Honour, when delivering the judgment of the Court of Appeal dismissing an appeal against a refusal to strike out an action in negligence, said:
"The case falls generally into the difficult and
evolving sector of law where, by exercise or omission to
exercise public responsibilities involved in the powers
or duties of local or other statutory authorities, harm
may be caused to individual citizens; and the question
arises whether those citizens have rights of action in
negligence. It is the field discussed in Anns v Merton
London Borough Council (1978) AC 728 and Takaro
Properties Ltd v Rowling (1978) 2 NZLR 314 and other
leading cases in other countries. If one point more
than any other emerges from those cases, it is that
problems in this field cannot satisfactorily be disposed
of at an abstract level. It is essential to know at
least the main facts before attempting to apply or adapt
the relevant principles of law. In this particular case
that is very evident."
9. I would allow the appeal and make the orders proposed by Bollen J.
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