Adams by her next friend O'Grady v State of New South Wales

[2008] NSWSC 1257

CITATION:

Adams by her next friend O'Grady v State of New South Wales [2008] NSWSC 1257

HEARING DATE(S):

16 June 2008

 
JUDGMENT DATE : 

28 November 2008

JURISDICTION:

Common Law

JUDGMENT OF:

Rothman J

DECISION:

(i) Judgment for the defendant;

(ii) Proceedings be dismissed;

(iii) The parties have liberty to approach the Court, through my Associate, for any consequential order and/or any order for costs. Such liberty must be exercised within 14 days of the date hereof, at which time directions will be given for the filing of written submissions in relation thereto.

CATCHWORDS:	NEGLIGENCE – alleged breach of duty by State in providing plaintiff with access to knife – damage claimed loss of liberty in limiting term imposed by court on plaintiff for stabbing another – no duty of care to prevent such damage – no causation – lawful imposition of limiting term not damage – Civil Liability Act – contributory negligence
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 Children (Detention Centres) Act 1987 Civil Liability Act 2002 Law Reform (Miscellaneous Provisions) Act 1965 Mental Health Act 1990 Mental Health (Criminal Procedure) Act 1990 Occupational Health and Safety Act 1987
CATEGORY:	Principal judgment
CASES CITED:	Australian Competition & Consumer Commission v The Maritime Union of Australia [2001] FCA 1549; (2001) 187 ALR 487 Australian Securities Commission v Bank Leumi Le-Israel (Switzerland) and Ors [1996] FCA 1789; (1996) 69 FCR 531 Clunis v Camden and Islington Health Authority [1998] QB 978 Council of the Shire of Sutherland v Heyman [1985] HCA 41; (1985) 157 CLR 424 Hunter Area Health Service v Presland [2005] NSWCA 33; (2005) 63 NSWLR 22 M'Naghten v The Queen (1843) 4 State Tr NS 847 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 PMT Partners Pty Ltd (In Liq) v Australian National Parks & Wildlife Service [1995] HCA 36; (1995) 184 CLR 301 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 R v Adams [2001] NSWSC 1042 R v Adams [2003] NSWSC 142; (2003) 58 NSWLR 1 R v Jennings [2005] NSWSC 789 Smith v Federal Commissioner of Taxation [1987] HCA 48; (1987) 164 CLR 513 Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24; (1989) 167 CLR 45 Workers' Compensation Board (Qld) v Technical Products Pty Ltd [1988] HCA 49; (1988) 165 CLR 642
PARTIES:	Debbie Marie Adams by her next friend Paula O'Grady (Plaintiff) State of New South Wales (Defendant)
FILE NUMBER(S):	SC 20319/2005
COUNSEL:	J B Turnbull / T D Anderson (Plaintiff) P W Taylor SC / J L Lonergan (Defendant)
SOLICITORS:	Adamson Solicitors (Plaintiff) Crown Solicitor's Office (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

28 NOVEMBER 2008

20319/05 Debbie Marie Adams by her next friend Paula O’Grady v State of New South Wales

JUDGMENT

1 HIS HONOUR: After Ms Debbie Adams stabbed her mother in 1999, she was detained in Yasmar, a youth detention facility operated by the State of New South Wales (the State). While at Yasmar, Ms Adams obtained access to a knife and used it to stab a teacher, Scott Bremner. Mr Bremner died. Ms Adams claims that the State of New South Wales was negligent in allowing her access to a knife and breached its duty to her. As a consequence of Ms Adams’ stabbing her teacher, the Court of Criminal Appeal imposed upon her a limiting term of 10 years. Ms Adams claims damages from the State of New South Wales, being damages for the denial of her liberty consequent upon the imposition of the limiting term.

2 The claim, as may be obvious, raises a number of issues associated with the limits of actionable duties of care, the responsibility in tort for damage that arises from one’s own criminal conduct and whether the lawful denial of liberty by the State can ever be the basis for damages. Before dealing with those and other ancillary issues, it is necessary to trace briefly (but in more detail than the preceding paragraph) the circumstances that gave rise to the imposition of the limiting term. While it will be explained in more detail later, a limiting term was, at the time it was imposed (and still is), a custodial term imposed pursuant to procedures under the then Mental Health (Criminal Procedure) Act 1990, the terms of which Act have been amended but which procedure remains essentially the same.

Background Behaviour

3 The plaintiff, Ms Adams, was born in August 1982 and her environment brought her to the attention of the Department of Community Services from a very early age. The first DOCS notification in relation to her home-life occurred in April 1986.

4 It seems that Ms Adams was the subject of significant sexual and other abuse from a very early age. In October 1987, Ms Adams was found to have Chlamydia of the throat and she was removed from her mother’s care in December 1987, because of concerns relating to Ms Adams’ sexual abuse. In March 1988, Dr Sara Williams, consultant psychiatrist, described Ms Adams, as a five year old, as presenting

“as a severely disturbed child who gives many indications of having been abused physically, emotionally, and sexually. She has identifications with a violent abusive mother. In order for her to make good use of the very therapeutic foster parent that she has, separation, totally, from her biological mother would be in her best interest.
Individual therapy is not a possibility for this child, and her best means of change will come about by reason of the interaction with her good foster mother, and the enrolment of the Pre-school program.”

5 Ms Adams was referred to Dr Williams “because of her disturbing behaviour”.

6 Dr Williams described her behaviour, as a five year old, as “disturbed and aggressive”, although such behaviour was sporadic and unpredictable. Ms Adams had previously been the subject of a paediatric assessment (October 1987) in which the paediatrician suggested that Ms Adams’ behaviour indicated that she had “either been sexually abused or has had access to sexual information which was not normally considered appropriate for a child of this age.”

7 A psychological assessment in January 1988 confirmed this sexualised behaviour and it formed part of Dr Williams’ description of Ms Adams’ behaviour in March 1988.

8 In June 1988, Ms Adams was made a ward of the State until 18 years of age and was enrolled in occupational therapy in a special pre-school.

9 In August 1988, after liaison between various authorities, Ms Adams was placed in a public school in which she continued to be disruptive. As a consequence of that behaviour, Dr Williams opined that she was not ready for school.

10 In August 1990, she was placed in an institution for children at Renwick and continued to have intermittent access to her natural mother.

11 In October 1990, while on an access visit, she was, according to Ms Adams, sexually assaulted. In December 1990, on another such visit, Ms Adams was sexually assaulted and threatened her mother with a knife.

12 In December 1994, Ms Adams went into care at Barnardo’s and in January 1995 was admitted to Shellharbour Hospital Psychiatric Unit, from which she was discharged two days later. Having been treated by the hospital, in their opinion, she had stabilised for the time being, and was therefore released.

13 On 28 September 1995, Ms Adams threatened her foster carer with a knife and there was an escalation of general violence. This was noted by psychiatrists in or about February 1996.

14 As noted in a court report requested by Port Kembla Children’s Court and dated 20 January 1999, Ms Adams was expelled from Albion Park High School during 1997. She had been the subject of a psychiatric review in February 1996, which review had noted some of the above history, described Ms Adams as having episodes of rage and deliberate self-harm, noted that she presented more like a 7 to 9 year old, rather than a 14 year old, and displayed a “poverty of ideation”. The psychiatrist concluded that Ms Adams was suffering from a “Disruptive Behaviour Disorder not otherwise specified, Dissociative Disorder not otherwise specified, and Moderate Mental Retardation”.

15 While at Albion Park High School, Ms Adams had continued to use inappropriate language and had exhibited significant violence, including the punching of her teacher and a student. In March 1998, Ms Adams stabbed another student in his leg, and on 27 September 1998, Ms Adams was charged with carrying knives.

16 Ms Adams was later (20 October 1998) charged with stealing a motor vehicle and on 12 November 1998, was charged with assault and the ill treatment of a female.

17 In a conference of workers charged with Ms Adams’ care, it was noted that her behaviour was becoming “more unmanageable and violent”. A number of incidents of violence were noted, being incidents over and above those referred to above, for which charges were laid. The violence displayed by Ms Adams was becoming more and more intense and she was the subject of further psychiatric assessment, which noted that she had “gone berserk” and “trashed” her house and possessions. She had also threatened again to harm herself. A full neurological assessment was ordered.

The Stabbing of Ms Adams’ Natural Mother and Consequences

18 Most relevantly, on 25 January 1999, Ms Adams stabbed her natural mother, for which stabbing she was arrested on 26 January 1999, and charged with attempted murder, assault police and carry a concealed knife.

19 She appeared on those charges at Port Kembla Local Court and was bail refused. She was taken to Yasmar to await her trial.

20 On 1 February 1999, Ms Adams attacked her solicitor while at court, and she assaulted her doctor on 15 February 1999 and another girl on 22 February 1999. The last mentioned assault was, once more, with a knife. She attacked her solicitor, once more, during a court appearance, which occurred on 4 March 1999.

21 There were a number of incidents of assault and behavioural issues. On 10 May 1999, she assaulted staff at Yasmar; on 31 May 1999, she assaulted a pottery teacher; she punched her psychiatrist Dr Starling in the face on 7 June 1999; and on 21 July 1999, she assaulted a teacher with a leather-working tool.

22 A number of steps were taken to seek to deal with these issues and a behavioural management plan was prepared on 27 May 1999. That plan alerted staff to the fact that Ms Adams became increasingly agitated as her court date approached and sought to devise and to advise strategies to deal with the agitation or anticipated violence.

23 On 4 June 1999, the charges laid in relation to her natural mother were before the District Court at Wollongong and were stood over until September 1999.

24 On 7 June 1999, the Central Support Team (a consultative group to oversee the running of Yasmar) noted its concern about Ms Adams’ increasing level of violence. It also noted that there were reports of Ms Adams having fashioned a spear and having stolen a knife from the office at Yasmar.

25 On 15 June 1999, Ms Adams was suspended from school following a breakdown in the behaviour management plan that was originally designed for her. Application was made for specific funding for a dedicated staff member to supervise Ms Adams, which application was approved, and a staff member was engaged for that purpose.

26 On 16 June 1999, following a review on 7 June 1999, Dr Starling noted that Ms Adams needed something to bring her down a bit and was “quite a danger to other people” and that “other detainees and staff are at risk from her”. On 21 June 1999, Ms Adams returned to school at Yasmar, at which, as earlier mentioned, she assaulted a teacher with a leather-working tool, some one month after her return.

27 I deal in more detail with the period over the next few days, being after the assault on the teacher with the leather-working tool.

The Cooking Class

28 As earlier stated, a dedicated staff member, a teacher’s aide, had been appointed to supervise and assist in Ms Adams’ program. The aide had worked at Yasmar since October 1997 and she also worked as a tutor with the Aboriginal Homework Centre also held at Yasmar. On 23 July 1999, there was a cooking class run by Scott Bremner. At about 9.45am on that morning, Mr Michael Veralobos (the team leader), together with a youth worker, escorted four girls from the Dobroyde Unit to a cooking class to be conducted by Mr Bremner. Ms Adams was one of the girls from the Dobroyde Unit. The girls sat around a table. They filled out TAFE enrolment forms and the teacher’s aide sat next to Ms Adams, because the aide considered that Ms Adams might have had problems in filling out the form. Ms Adams rejected the aide’s offer to assist.

29 Shortly after this, the four girls were given a chef’s uniform. All the girls, except Ms Adams, complained about wearing the uniforms. Ms Adams was very enthusiastic about the uniform and, after putting on part of the uniform, said:

“I have always wanted to wear one of these uniforms.”

30 They were given an outline of the class and an outline of the work that the teacher was doing and educational history. Each of the girls was, in turn, to explain what each wanted to get out of the course.

31 During this event, Ms Adams said words to the effect of:

“I always wanted to be a chef. I have had some experience in a kitchen in a hospital.”

32 During the course of this statement and Ms Adams’ explanation, the other girls were giggling. She was told not to be embarrassed and to “look up”. Ms Adams smiled in what was described as an embarrassed manner.

33 Next, the girls were given a toolbox, which they were to use in the cooking class. Ms Adams held a large cooking knife. As she held it, she had a smile on her face and she looked very happy.

34 After this event, the girls were supposed to take recess. After some little confusion, a conversation occurred in which Ms Adams said to one of the male teachers (the Assistant Principal):

“I’m going to stab you.”

While she said that, she was motioning with her hand in a stabbing movement. The Assistant Principal defused the situation by asking Ms Adams an unrelated question. The recess that had not been previously taken was then arranged and one of the staff recalled Ms Adams saying something similar to the above to Mr Bremner and the statement being made to him with the same kind of motion.

35 The teacher’s aide spoke to the two other staff in the teaching class about her fears about Ms Adams and the knife. She had concerns because the knives looked like killing knives and she was aware of the charge of attempted murder and some of the other violent outbursts attributed to Ms Adams. Neither of the other staff seemed particularly concerned.

36 Prior to the cooking class occurring, staff had raised concerns about the attendance of Ms Adams in the cooking class, given her history of incidents of violence. Indeed, on being collected for the cooking class, Ms Adams seemed very excited and kept asking both the team leader and the other staff member about knives, whether there were knives in the class and/or whether she would get one. At recess, Ms Adams wore her chef’s outfit. She approached one of the youth workers, who was helping with the cooking in the dining room that day, and asked how she looked in her outfit and specifically commented, “Do you know they gave me a knife?”

The Stabbing of Mr Bremner

37 When the class resumed, the students were given knife awareness and sharpening lessons and were informed as to where to find the First Aid Kit. One of the staff remarked that at that point Ms Adams was stabbing her knife into the chopping board, from which she was asked to desist because it would wreck the knife. Thereafter, the students were taught how to chop certain vegetables. Ms Adams was making, what seemed to some observers, suspicious motions or statements.

38 Ms Adams moved away from her position at the bench. She walked parallel to the bench, behind one of the teachers. In her right hand, she had the large kitchen knife, held down beside her body. Ms Adams walked swiftly behind Mr Bremner. She raised the knife in the air, holding it in two hands, and punched it into his back. She stabbed him once. The other girls were screaming hysterically. Ms Adams then threw the knife at Mr Bremner, moved over to the glass doors, picked up a handful of vegetables from the floor, and threw them in the direction of Mr Bremner. One of the staff described Ms Adams as being in “this rage-like state”.

39 Mr Bremner died from the knife wound.

Ms Adams’ Assessment

40 Ms Adams was charged with murder in relation to the stabbing of Mr Bremner. Bail was refused and she was placed at Minda Detention Centre, in isolation.

41 On 28 July 1999, Ms Adams appeared at Bidura Children’s Court and was again bail refused. At that time she was moved to Mulawa Women’s Prison into the Mum Shirl Unit, which is a protected environment for women with severe emotional problems.

42 Further assaults occurred and, because of perceived risk to the community, the courts were advised that Ms Adams should be detained in a secure facility. She was so detained.

43 On 12 August 1999, Ms Adams was diagnosed as being “severely disturbed … and extremely dangerous”. She assaulted the consulting psychiatrist.

44 In November 1999, she was diagnosed as being “highly unstable, volatile and certainly impulsive … she needs to be considered extremely dangerous”. She was treated as an extreme high-security inmate at Mulawa.

The Imposition of the Limiting Term

45 On 13 November 2000, Dunford J determined that Ms Adams was unfit to be tried: s 11A of the Mental Health (Criminal Procedure) Act. As a consequence, Ms Adams was referred to the Mental Health Review Tribunal, which determined that she would not, within the ensuing 12 months, become fit to be tried. The Attorney General then referred the charges against Ms Adams for a special hearing: see s 16(1) and s 18 of the then Mental Health (Criminal Procedure) Act. The subsequent special hearing continued over seven days, before Sperling J, and concluded on 7 September 2001. On 12 September 2001, Sperling J, in relation to the charges of malicious wounding in relation to Ms Adams’ natural mother and in relation to the murder of Mr Bremner, made the following findings:

“[48] I find that the accused’s capacity to control herself, at the time of her act, causing the death of the deceased, was substantially impaired by an abnormality of mind arising from an underlying condition, namely, severe personality disorder. I further find that such impairment was so substantial as to warrant her liability for murder being reduced to manslaughter.


[49] Accordingly, I find, on the limited evidence available, that the accused committed the offence of manslaughter, being an offence available as an alternative to the offence with which she is charged.


[50] I direct that the following verdicts be entered:


(1) On the limited evidence available, the accused did, on or about 25 January 1999, at Warilla in the state of New South Wales, commit the offence of maliciously wounding Dianne Adams with intent to do grievous bodily harm;


(2) On the limited evidence available, the accused did on 23 July 1999, at Haberfield in the state of New South Wales, commit the offence of manslaughter of Scott Bremner.” ( R v Adams [2001] NSWSC 773)

46 On 19 October 2001, a further hearing occurred and on 23 November 2001, Sperling J made the following orders:

“[27] Pursuant to s23(1)(a) of the Act, I indicate that, if the special hearing had been a normal trial against a person fit to be tried, with conviction for each of the offences charged, I would have imposed sentences of imprisonment in each case. Were I imposing such sentences in isolation from each other, I would have fixed a sentence for the malicious wounding offence of one year and six months and for the offence of manslaughter of 5 years and 6 months.

[28] Section 23(5) enables me to take into account the period during which the offender has been in custody, that is from 26 January 1999 to date, and to backdate the term accordingly.


[29] Pursuant to s23(1)(b) and applying the principle of totality, for the offence of malicious wounding with intent to cause grievous bodily harm, I nominate a limiting term of one year, commencing on 26 January 1999 and expiring on 25 January 2000. For the offence of manslaughter I nominate a limiting term of five years commencing on 26 January 2000 and expiring on 25 January 2005.


[30] Pursuant to s24(1)(a), I refer the offender to the Mental Health Review Tribunal.


[31] Counsel agree that the appropriate order pursuant to s24(1)(b) is that the offender be kept in strict custody. That order would operate pending any further order of the Court in response to a determination by the Tribunal. The offender is presently accommodated at Mulawa Correctional Centre under conditions which are unsuitable and inhumane. She should, on the evidence before me, be accommodated in a secure psychiatric hospital ward, receiving appropriate treatment which is not available to her in prison. However, on the evidence before me, no such facility exists in New South Wales for females in this offender’s mental condition. The situation may require more thorough examination by the Court when the Tribunal has made its determination. Meanwhile, as an interim measure, I make the order proposed by counsel. I order, pursuant to s24(1)(b), that the offender be held in strict custody.


[32] In summary:


(1) For the offence of malicious wounding with intent to cause grievous bodily harm, I nominate a limiting term of one year, commencing on 26 January 1999 and expiring on 25 January 2000;


(2) For the offence of manslaughter, I nominate a limiting term of five years commencing on 26 January 2000 and expiring on 25 January 2005;


(3) I refer the offender to the Mental Health Review Tribunal;


(4) I order that the offender be held in strict custody.” ( R v Adams [2001] NSWSC 1042)

47 The Crown appealed the limiting term imposed by Sperling J and on 15 November 2002, the Court of Criminal Appeal (Ipp JA, Bell J and Smart AJ) increased the limiting term to an overall limiting term of 13 years, expiring 25 January 2012, of which a limiting term of 10 years was imposed for the offence of manslaughter, being the killing of Mr Bremner.

48 For the purpose of the hearings before Sperling J, Dr Rosalie Wilcox, general and forensic psychiatrist, assessed Ms Adams. That Report is evidence in these proceedings as are other reports, earlier referred to, or summaries of them. She diagnosed Ms Adams, relevantly, in the following terms:

“Ms Adams presents with a range of symptoms that could be partly explained on the basis of having been abused during her childhood. I do not feel that her presentation is typical of classic post-traumatic stress disorder however she does have many of the symptoms that Dr Judith Herman has referred to as ‘complex post-traumatic stress disorder’ …


The tendency to dissociate is a prominent feature of Ms Adams presentation and although dissociation is a symptom of post-traumatic stress disorder, it is also conceivable that she has a separate Dissociative Disorder. The essential feature of a Dissociative Disorder is a disruption in the normally integrated functions of consciousness, memory, identity or perception of the environment. The disturbance may be gradual, transient or chronic.


A significant component of Ms Adams’ presentation is related to her dysfunctional personality. She has prominent antisocial and borderline traits as discussed in my earlier report …


OPINION


On the day of the alleged offence Ms Adams indicated that she was in an agitated state and reportedly told the other girls that she felt like doing something silly. They encouraged her by shouting ‘do it, do it’. I believe that due to being in a very aroused state she experienced a period of dissociation and as a result she has no recollection of picking up the knife or of stabbing the teacher.


In my opinion she was in a dissociated state before she picked up the knife and while she was in this state she might have felt that she was stabbing her mother….


I do not believe that Ms Adams would satisfy the criteria for a mental illness defence. However I feel that when she stabbed the teacher she was suffering from an abnormality of the mind that occurred as a result of an underlying condition and the underlying condition was a dissociative form of post-traumatic stress disorder. As a result of this abnormality of the mind, her capacity to control herself was substantially impaired. Whether the capacity was so substantial as to warrant liability for murder being reduced to manslaughter is something for the court to decide.”

49 Similar, but not identical, opinions were obtained from Dr Bruce Westmore, forensic psychiatrist, and other psychiatric material was before this Court. Before Sperling J, one of the youth workers (whose testimony has been admitted by consent) accepted that Ms Adams was someone who, notwithstanding the professional skills, experience and compassion of the staff at Yasmar, could act in a violent way without any discernable provocation. The same staff member noted the gesturing with knives prior to the killing and the preoccupation with knives on the morning.

50 Dr Westmore attested, on questioning from Sperling J, (the transcript of which is before the Court) that he could not

“really find any evidence that she [Ms Adams] didn’t know that what she did was wrong at the time. There are some statements from witnesses, which might cast a question mark over that second part. But the fact that she apparently went up to the victim with the knife concealed would suggest to me that she had some understanding and awareness … of what she was going to do, and that it was wrong in the sense that she needed to hide the weapon before she did the act. So I concluded really that she knew the nature of what she was doing and I concluded that she knew that it was wrong.”

51 The orders of the Court of Criminal Appeal required Dr Lennings’ report of 30 July 2002 be placed on Ms Adams’ file. There are significant sections of Dr Lennings’ report of 30 July 2002 that are recited in the judgment of Smart AJ, with whom Ipp JA and Bell J agreed. Those excerpts are in the following terms:

“[73] Dr Lennings wrote:


‘Although Debbie has numerous diagnoses the diagnosis of most concern appears to be her personality disorder. Severe personality disorder probably underlies the perception of risk of dangerousness in Debbie. I note that psychiatric reports indicating that treatment is not available for this condition. Although the view is held that severe personality disorders are recalcitrant to treatment, over the last decade treatment programs for severe personality disorders have been developed, in particular for borderline personality disorder. The problem is that such programs require therapeutic hospital settings, are long (take at least 2 years), require both individual and group treatment processes, and are limited in their effectiveness in cases of comorbid presentations (more than one psychological disorder in the person's make-up). Generally, the effect of comorbidity is to both lengthen the course of treatment, and reduce the expectations for treatment gains. It appears that in our current public (mental) health system, such treatment programs are not available.’
and



‘Research in the child protection and forensic areas, however, suggests that the kinds of personality disorders of the dimensions revealed by Debbie are unlikely to alter much simply as a function of age until late in the 4th decade of life. Even then it is not known whether age related change alone will be sufficient to moderate her risk to others or to herself. It appears imperative that if Debbie is not to be held in gaol for the next 30 years or more, a dedicated treatment plan needs to be considered.

...



Debbie is a young woman suffering from a range of severe and complex disorders that vastly limit her capacity to function. Her morbid pre-occupation with knives, the absence of any reasonable levels of pre-morbid functioning, and her long history of aggressive and destructive impulses signal a young woman who is both very disturbed and quite dangerous.

…



It is most unlikely her level of disturbance will spontaneously resolve simply as a function of incarceration, and any amelioration of her risk (as well as any humane considerations that might be considered) will only take place if she is placed in an intensive, in-patient therapeutic setting. There is, I am informed, no opportunity for such a placement at this time

...


In the interim, if Debbie is to remain in Parklea, consideration of her vulnerability and developmental needs has to be taken into account. Debbie is a young woman, still developing her identity. She has a need for exercise and an opportunity to get her weight gain under control. She requires opportunities for (safe) social interaction, and clearly has a major requirement for treatment. It is not possible for adequate treatment to be given to Debbie whilst in Parklea. The kinds of treatment Debbie needs are a mix of individual and group based strategies, and no group exists in Parklea that would be suitable for her. None the less, some beginnings of appropriate therapeutic contact should occur. This might ideally take the form of treatments modelled on the work of Linehan and Beck in managing severe and destructive personality disorders, and parallelled by a continuing monitoring of her relevant medication needs. If prison personnel are to be used for this purpose, an arrangement should occur such that the prison personal (sic) receive some supervision and debriefing in their therapy with experienced practitioners from Cumberland, or whatever other appropriate therapeutic venue she may eventually be transferred to. Ideally, transfer to some therapeutic venue will be considered, and to prepare for that, treatment from that setting should begin whilst she is in Parklea. This will enable a bridge into the next phase of her management, whilst security needs are managed.’” ( R v Debbie Marie Adams [2002] NSWCCA 448)

Conclusions of Fact

52 From the foregoing, a number of relevantly uncontroversial conclusions of fact can be derived. First, Ms Adams either acquired as a result of physical and sexual abuse and/or was genetically predisposed to a mental disorder, to violence and to disruptive and/or antisocial behaviour.

53 Secondly, the mental and/or psychiatric disorder from which Ms Adams suffered was a factor in Ms Adams’ stabbing of her mother in January 1999.

54 Thirdly, as a result of the stabbing of her mother, Ms Adams was “in custody” at Yasmar.

55 Fourthly, Ms Adams displayed a fascination and/or preoccupation with sharp instruments: the making of a spear, the stealing of a knife, and more latterly the excitement at the possession of a knife.

56 Fifthly, Ms Adams was allowed to enrol, at Yasmar, in a cooking class, which class gave her access to knives.

57 Sixthly, Ms Adams, having gained access to a knife in the cooking class, stabbed and killed Mr Bremner.

58 Seventhly, as a result of the operation of the law, Ms Adams was found unfit to plead, but was found to have committed the offence of manslaughter of Mr Bremner. The offence of manslaughter arose as an alternative to the offence of murder with which she was charged and was the result of the Court finding that Ms Adams’ capacity to control herself, at the time of the stabbing that caused the death of Mr Bremner, was substantially impaired by an abnormality of mind arising from an underlying condition, namely, severe personality disorder, which impairment was so substantial as to warrant her liability for murder being reduced to manslaughter.

59 Lastly, in accordance with the law, a limiting period of 10 years was imposed upon Ms Adams.

60 Further, lest the status and effect of findings at a special hearing not be binding, I make clear that, on the evidence before me, I accept the opinion of Dr Rosalie Wilcox that Ms Adams was not “insane” but had a diminished capacity to control her actions. To the extent necessary, I would, on the evidence before the Court in these proceedings, independently confirm the findings of Sperling J on capacity and liability.

The Effect of a Limiting Period

61 The criminal law and sentencing for criminal offences involves a number of purposes. Those purposes include punishment, retribution, the imposition of general and specific deterrence, protection of society and, to the extent considered available, rehabilitation of the offender.

62 Fundamentally and conceptually, the criminal law depends upon the proposition that human kind has free will. That is, humans have the capacity to determine right from wrong and have a choice to act in a particular way. The criminal law presupposes that when laws are made for the regulation of society, members of society have the capacity to obey them.

63 Fundamentally, the law imposes punishment for actions for which members of society are responsible. Further, it makes allowances in circumstances where a particular member of society is not responsible. The criminal law, for example, does not punish unless the conduct is voluntary and, in the case of murder, performed with a particular state of mind: an intention to kill; an intention to cause grievous bodily harm; or a reckless indifference to human life.

64 Likewise, the criminal law makes allowances for conduct, otherwise unlawful, for which a person is not responsible. Thus, it is a complete defence to kill in self-defence, if the response be reasonable. Even where the conduct in self-defence is a response beyond that which is reasonable in the circumstances, the criminal law ameliorates the culpability so that the person is guilty of manslaughter, not murder.

65 Moreover, in the area of mental health, the law makes significant allowances by allowing the courts to deal with criminal offences otherwise than in accordance with the general criminal law. The law allows a defence of insanity, which renders a person not criminally responsible for an act or omission, if, at the time of performing the act or omission, the persons mental state were such that the person was labouring under such a defect of reason, from a disease of the mind, that the person did not know the nature and quality of the act performed, or, alternatively, if the person did know, the person did not know that the act performed was wrong: M’Naghten v The Queen (1843) 4 State Tr NS 847; R v Jennings [2005] NSWSC 789.

66 The overwhelming and uncontroverted evidence before this Court (and before the Supreme Court and Court of Criminal Appeal in the proceedings involving Ms Adams on earlier occasions) is that (as evidenced by some of the extracts above) Ms Adams knew the nature and quality of her act and knew that what she was doing was wrong.

67 Nevertheless, the law also allows, in circumstances such as that suffered by Ms Adams, for culpability to be ameliorated when mental disorder causes a diminution in the capacity to control one’s actions.

68 These underlying premises are implemented by a number of detailed provisions. The Mental Health (Criminal Procedure) Act provides, in circumstances of Ms Adams, for Ms Adams to be dealt with other than under the criminal law. Because Ms Adams was held to be unfit to be tried, she was dealt with under s 21 of the Mental Health (Criminal Procedure) Act. Section 21 of that Act requires a “special hearing”, which was the procedure before Sperling J.

69 It is not in issue in these proceedings, and is clearly the case, that Ms Adams has not been convicted of any offence relating to Mr Bremner’s homicide.

70 Technically, the Attorney General ordered that a special hearing be conducted. The Attorney General made such an order after a determination that Ms Adams was unfit to be tried, which determination was issued by Dunford J. [The Act has since been amended.]

71 Section 19 of the Mental Health (Criminal Procedure) Act required the special hearing to be conducted for the purpose of ensuring that a person, who is unfit to be tried, is acquitted, unless it can be proved, beyond a reasonable doubt, on the limited evidence available, that the person committed the offence. That involves a determination that the person was criminally responsible for the conduct, i.e. was not entitled to be found not guilty by reason of insanity. Section 19 of the Mental Health (Criminal Procedure) Act is in the following terms:

“19 Court to hold special hearing after advice received from Director of Public Prosecutions
(1) If the Court receives a notification of a determination from the Tribunal under section 16 (3), 42 (4) or 44 (2) that a person will not, during the period of 12 months after the finding of unfitness, become fit to be tried for an offence, the Court:
(a) is to obtain the advice of the Director of Public Prosecutions as to whether further proceedings will be taken by the Director of Public Prosecutions in respect of the offence, and
(b) is to conduct a special hearing as soon as practicable unless the Director of Public Prosecutions advises that no further proceedings will be taken.
(2) A special hearing is a hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged.
(3) If the Director of Public Prosecutions advises the Court under subsection (1) (a) that no further proceedings will be taken in respect of the offence, the Director of Public Prosecutions is also to give that advice to the Minister for Police.
(4) Subsection (1) does not apply if the Court has already held a special hearing in relation to the offence concerned.”

72 The special hearing is, to the reasonable observer and otherwise, a trial in the same way as any criminal proceeding, except it is usually before a judge alone and not a judge with jury. Ms Adams was legally represented. Evidence was adduced. Ms Adams is assumed to have pleaded not guilty, is entitled to give evidence (although, as a matter of practice, would not normally), and is entitled to rely upon any defence that would otherwise be available: see s 21 of the Mental Health (Criminal Procedure) Act.

73 At the conclusion of the special hearing, the following verdicts were available to Sperling J: not guilty of the offence; not guilty on the ground of mental illness; on the limited evidence available, guilty of the offence; and, on the limited evidence available, guilty of an available alternative to the offence: s 22 of the Mental Health (Criminal Procedure) Act. It is unnecessary to deal with the first available verdict.

74 The second available verdict (not guilty on the ground of mental illness) would, as the verdict suggests, be a finding which found Ms Adams insane (in the M’Naghten sense), but would have consequences associated with the denial of liberty to Ms Adams associated with the existence of the mental illness, its treatment, and the continuing danger to society as a result of her continuing liberty.

75 The third available verdict (guilty of the offence charged, on the limited evidence available) would have resulted in a finding of murder and a refusal to find a mental disorder which impacted substantially on her capacity to control her actions. It is not necessary to further deal with that possibility.

76 The fourth available verdict, and the verdict of Sperling J, once accepted, determined that Ms Adams’ capacity to control herself was substantially impaired by an abnormality of mind arising from severe personality disorder and that impairment was so substantial as to warrant her liability for murder being reduced to manslaughter.

77 It is important to understand that prior to the special hearing before Sperling J, the Mental Health Review Tribunal determined, pursuant to s 16(1) of the Mental Health (Criminal Procedure) Act, that the accused would not, during the period of 12 months after the finding of unfitness, become fit to be tried, which gave rise to the Attorney General making an order under s 18, as earlier noted. It is appropriate to set out some of the current relevant provisions in order to understand the process undertaken (even though these provisions are amended from those applying at the time):

“16 Functions of Tribunal on referral after inquiry
(1) If a person has been referred to the Tribunal under section 14 after a finding that the person is unfit to be tried for an offence, the Tribunal must, as soon as practicable after the person is so referred, determine whether, on the balance of probabilities, the person will, during the period of 12 months after the finding of unfitness, become fit to be tried for the offence…”

[Section 18 is now repealed but then interposed a reference by the Attorney General as a necessary step between what is now s 16 and the special hearing referred to in s 19.]

“19 Court to hold special hearing after advice received from Director of Public Prosecutions
(1) If the Court receives a notification of a determination from the Tribunal under section 16 (3), 42 (4) or 44 (2) that a person will not, during the period of 12 months after the finding of unfitness, become fit to be tried for an offence, the Court:
(a) is to obtain the advice of the Director of Public Prosecutions as to whether further proceedings will be taken by the Director of Public Prosecutions in respect of the offence, and
(b) is to conduct a special hearing as soon as practicable unless the Director of Public Prosecutions advises that no further proceedings will be taken…”

“21 Nature and conduct of special hearing
(1) Except as provided by this Act, a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings.
…
(3) At a special hearing:
(a) the accused person is to be taken to have pleaded not guilty in respect of the offence charged, and
(b) the Australian legal practitioner, if any, who represents the accused person may exercise the rights of the person to challenge jurors or the jury, and
(c) without limiting the generality of subsection (1), the accused person may raise any defence that could be properly raised if the special hearing were an ordinary trial of criminal proceedings, and
(d) without limiting the generality of subsection (1), the accused person is entitled to give evidence…”


“21A Judge to try special hearing unless election for jury made
(1) At a special hearing, the question whether an accused person has committed an offence charged or any other offence available as an alternative to an offence charged is to be determined by the Judge alone unless an election to have a special hearing determined by a jury is made by:
(a) the accused person and the Court is satisfied that the person sought and received advice in relation to the election from an Australian legal practitioner and understood the advice, or
(b) an Australian legal practitioner representing the accused person, or
(c) the prosecutor.
(2) An election to have a special hearing determined by a jury must be made:
(a) in the case of an election by the accused person or the Australian legal practitioner representing the accused person-on any day before the day fixed for the special hearing in the Supreme Court or the District Court, or
(b) in the case of an election by the prosecutor-at least 7 days before the day fixed for the special hearing in the Supreme Court or the District Court.
(3) An accused person or an Australian legal practitioner representing an accused person who elects to have a special hearing determined by a jury may, at any time before the day fixed for the special hearing, subsequently elect to have the matter determined by the Judge alone.
(4) The Jury Act 1977 applies to and in respect of the constitution of a jury, and a jury constituted, for the purpose of a special hearing in the same way as it applies to and in respect of the constitution of a jury, and a jury constituted, for the trial of any criminal proceedings.
(5) A member of a jury otherwise constituted for the purpose of any proceedings relating to the same accused person and the same offence is disqualified from being a member of a jury constituted as referred to in subsection (4).
(6) Rules of court may be made with respect to elections under this section.”


“21B Verdict of Judge
(1) The verdicts available to a Judge who determines a special hearing without a jury are the verdicts available to a jury under section 22. Any such verdict has, for all purposes, the same effect as a verdict of a jury.
(2) A determination by a Judge in any such special hearing must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.”


“22 Verdicts at special hearing
(1) The verdicts available to the jury or the Court at a special hearing include the following:
(a) not guilty of the offence charged,
(b) not guilty on the ground of mental illness,
(c) that on the limited evidence available, the accused person committed the offence charged,
(d) that on the limited evidence available, the accused person committed an offence available as an alternative to the offence charged.
…
(3) A verdict in accordance with subsection (1) (c) or (d):
(a) constitutes a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the finding relates, and
(b) subject to section 28, constitutes a bar to further prosecution in respect of the same circumstances, and
(c) is subject to appeal in the same manner as a verdict in an ordinary trial of criminal proceedings, and
(d) is to be taken to be a conviction for the purpose of enabling a victim of the offence in respect of which the verdict is given to make a claim for compensation.”

78 It should be reiterated that the defence of mental illness, pursuant to s 38 (as it then was) of the Mental Health (Criminal Procedure) Act, was not raised before Sperling J. Further, Sperling J made clear that, on the evidence before the Court, including an abundance of psychiatric evidence, no such defence was available. I take the same view, on the material in these proceedings.

79 The imposition of a limiting term, pursuant to the provisions of the Mental Health (Criminal Procedure) Act, while treated for a number of purposes as the imposition of a sentence, is not a sentence and the finding is not, in law, a conviction.

80 Further, once a court imposes a limiting term, the provisions of s 24 of the Mental Health (Criminal Procedure) Act requires the court to refer the offender to the Mental Health Review Tribunal. It is the task of the Mental Health Review Tribunal to determine whether an offender so referred suffers from a mental illness or from a condition for which treatment was available in a hospital.

81 In the circumstances of Ms Adams, the Mental Health Review Tribunal determined that she was not suffering from a mental illness, within the definition of the Mental Health Act 1990, but was suffering from a mental condition. Further, the Tribunal determined that no treatment was available in any New South Wales hospital for the mental condition from which Ms Adams was suffering. This finding was based upon the proposition that there was no hospital facility in New South Wales that was able to provide the kind of intensive psychotherapy treatment that Ms Adams required for her severe personality disorder: R v Adams [2003] NSWSC 142; (2003) 58 NSWLR 1 at 15.

82 Following the determination of the Mental Health Review Tribunal, Sperling J ordered, pursuant to the provisions of s 27 of the Mental Health (Criminal Procedure) Act, for Ms Adams to be detained in a place other than a hospital. As a result of that order, Ms Adams became a forensic patient for the purposes of the Mental Health Act 1990 (now the Mental Health Act 2007). Pursuant to the terms of that Act, the Mental Health Review Tribunal is required:

(a) to review Ms Adams’ case as soon as practicable after the order was made and at least once every six months;

(b) to determine whether Ms Adams becomes fit to be tried and whether Ms Adams or the public would be seriously endangered by Ms Adams’ release;

(c) make recommendations to the Minister as to Ms Adams’ fitness to be tried, her release or her continued detention.

83 Since the order made by Sperling J (as amended by the Court of Criminal of Appeal), the Mental Health Review Tribunal has never declared its satisfaction that either Ms Adams’ safety or public safety would not be seriously endangered by her release and has never recommended her release.

Remand for Attack on Mother

84 When Ms Adams killed Mr Bremner, she was on remand at Yasmar. She was on remand because she had not yet been convicted of any relevant offence and was not subject to any control order. At the time, she was a minor and being dealt with under the Children (Criminal Proceedings) Act 1987.

85 Having been refused bail, Ms Adams’ remand continued and she was detained under the Children (Detention Centres) Act 1987.

86 The relevant purposes of the Children (Detention Centres) Act include the objects (s 4(1) of that Act) to ensure persons on remand or subject to control “take their places in the community, as soon as possible, as persons who will observe the law”. Further, s 4(2) of the Children (Detention Centres) Act requires that, in the administration of the Detention Centre, the “welfare and interests of persons on remand … shall be given paramount consideration”. The State is required to provide adequate arrangements for the maintenance of the physical, psychological and emotional well-being of detainees and to promote their social, cultural and educational development, and to maintain discipline and good order: s 14 of the Children (Detention Centres) Act.

87 Regulations also prescribe the conduct of the detention centres that are governed by the Children (Detention Centres) Act. Regulation 8 of the regulations made pursuant to the Act require the detention centre to afford reasonable opportunities for detainees to participate in recreation and leisure activities.

The Claim of Ms Adams

88 As earlier stated, Ms Adams seeks damages for her loss of liberty for the period of 10 years imposed by the Court of Criminal Appeal as the limiting term for the offence of manslaughter.

89 Ms Adams submits that the State of New South Wales, as the responsible body for the conduct of Yasmar, owed Ms Adams a duty of care akin to the duty a school authority owes a student, which duty is to ensure that reasonable care is taken to ensure that students are not exposed to unnecessary risks. The duty, it is said, is characterised by the position of vulnerability of the students and the position of authority and control exercised by the authority.

90 Further, Ms Adams submits that the aforesaid duty has been breached. First, it is said that the State of New South Wales would have foreseen that the situation it created constituted a real risk to Ms Adams through its failure to take into account Ms Adams’ violent history and to ensure that Ms Adams was not given access to knives. In this regard, Ms Adams relies upon findings in proceedings for the prosecution of the State of New South Wales under the Occupational Health and Safety Act 1987.

91 Secondly, Ms Adams relies upon the failures by the State of New South Wales and says that these failures led directly to a situation where Ms Adams, with a known violent history against other detainees, staff and others, was given access to knives.

92 Thirdly, Ms Adams submits that the failure of the State of New South Wales to ensure that there were proper controls and systems in place to prevent Ms Adams from coming into contact with the knives, in the circumstances where the State of New South Wales was aware of Ms Adams’ propensity, demonstrates that its conduct was so unreasonable that no authority exercising such a power could have regarded it as a reasonable exercise of power.

93 The State of New South Wales denies each of the existence of a duty of care and its breach. Further, the State of New South Wales submits that, if there were a breach of the duty of care, it did not cause the damage alleged. Secondly, that the damage, being the imposition of a limiting term in accordance with law, is not damage compensable under the common law. Thirdly, the State of New South Wales submits that s 54 and s 54A of the Civil Liability Act 2002 prevent an award of damage in proceedings of this kind.

94 Lastly, to the extent that the State of New South Wales is unsuccessful in each of its other submissions, it submits that, given the “meanness” of Ms Adams’ pre-offence existence and the likelihood that she would have, in any event, offended and been incarcerated, the Court would dramatically reduce (or obliterate) any damage suffered. Further, it submits that any such damage would be reduced for contributory negligence.

Duty of Care

95 Foreseeability is not, at least in Australia, the only determining factor in ascertaining whether the State of New South Wales has a duty of care. The mere fact, if it be the case, and I will hereafter, given the evidence in these proceedings, assume that it is, that the State of New South Wales had a knowledge that Ms Adams had a propensity to act as she did and cause damage, does not necessarily involve the consequence that action may be taken against the State of New South Wales for a breach of a duty of care to take reasonable steps to avoid the conduct of Ms Adams.

96 In Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562, the High Court said:

“[42] The argument was conducted upon the basis that it was foreseeable that harm of the kind allegedly suffered by the appellants might result from want of care on the part of those who investigated the possibility that the children had been sexually abused. But the fact that it is foreseeable, in the sense of being a real and not far-fetched possibility, that a careless act or omission on the part of one person may cause harm to another does not mean that the first person is subject to a legal liability to compensate the second by way of damages for negligence if there is such carelessness, and harm results. If it were otherwise, at least two consequences would follow. First, the law would subject citizens to an intolerable burden of potential liability, and constrain their freedom of action in a gross manner. Secondly, the tort of negligence would subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms. A defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care.” (Per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ.)

97 The common law, as applied in Australia, requires the determination of a separate question as to whether the law imposes a duty. There is no one precise formula that can be applied to determine whether such a duty exists: see Sullivan v Moody at [48], citing Professor Flemming. The High Court dealt with the determination of the existence of such a duty in the following way:

“[50] Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care. Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party. Sometimes they may arise because the defendant is the repository of a statutory power or discretion. Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits. Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships. The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle. In Donoghue v Stevenson , for example, Lord Buckmaster, in dissent, was concerned that, if the manufacturer in that case was liable, apart from contract or statute, to a consumer, then a person who negligently built a house might be liable, at any future time, to any person who suffered injury in consequence; a concern which later cases showed to have been far from fanciful. The problem which has caused so much difficulty in relation to the extent of tortious liability in respect of negligently constructed buildings was not only foreseeable, but foreseen, in the seminal case on the law of negligence.

[51] In Dorset Yacht Co Ltd v Home Office , Lord Diplock said:

‘...[T]he judicial development of the law of negligence rightly proceeds by seeking first to identify the relevant characteristics that are common to the kinds of conduct and relationship between the parties which are involved in the case for decision and the kinds of conduct and relationships which have been held in previous decisions of the courts to give rise to a duty of care’.


[52] Conversely, conduct and relationships may have been held not to give rise to a duty of care, and the reasons for that holding may provide an important guide to the solution of the problem in a new case.

[53] Developments in the law of negligence over the last 30 or more years reveal the difficulty of identifying unifying principles that would allow ready solution of novel problems. Nonetheless, that does not mean that novel cases are to be decided by reference only to some intuitive sense of what is ‘fair’ or ‘unfair’. There are cases, and this is one, where to find a duty of care would so cut across other legal principles as to impair their proper application and thus lead to the conclusion that there is no duty of care of the kind asserted.

[54] The present cases can be seen as focusing as much upon the communication of information by the respondents to the appellants and to third parties as upon the competence with which examinations or other procedures were conducted. The core of the complaint by each appellant is that he was injured as a result of what he, and others, were told. At once, then, it can be seen that there is an intersection with the law of defamation which resolves the competing interests of the parties through well-developed principles about privilege and the like. To apply the law of negligence in the present case would resolve that competition on an altogether different basis. It would allow recovery of damages for publishing statements to the discredit of a person where the law of defamation would not.

[55] More fundamentally, however, these cases present a question about coherence of the law. Considering whether the persons who reported their suspicions about each appellant owed that appellant a duty of care must begin from the recognition that those who made the report had other responsibilities. A duty of the kind alleged should not be found if that duty would not be compatible with other duties which the respondents owed.

…

[62] There is also a question as to the extent, and potential indeterminacy, of liability. In the case of a medical practitioner, the range of people who might foreseeably (in the sense earlier mentioned) suffer some kind of harm, as a consequence of careless diagnosis or treatment of a patient, is extensive.”

98 To complicate the matter further, even where there is a relationship that gives rise to a duty of care, such a duty does not necessarily arise in relation to all losses occasioned. For example, assuming, for present purposes, that there would be a duty of care owed by the State of New South Wales to Ms Adams, inter alia, on account of the relationship and duties required by the statutory duty imposed in conducting Yasmar, such a duty would not include a duty in relation to all kinds of damage. Thus, to use an extreme example, a financial loss occasioned when Ms Adams, in this hypothetical, invested in accordance with an advice of one of the administrators, would, without more, not be actionable because it would be outside the scope of the duty of care.

99 To deal with less extreme examples, it would seem that the relationship between the State of New South Wales and Ms Adams would give rise to a duty of care, at least for certain purposes. For example, physical damage occasioned to Ms Adams by one or other of the teachers or staff would, assuming negligence, be actionable as a breach of the duty of care owed. Likewise, negligence associated with the function of the State as the occupier of the premises would be a breach of the duty of care to Ms Adams.

100 Greater difficulty occurs when one is dealing with action intentionally occasioned by the act of another person. It may well be, assuming carelessness by the State, that the State of New South Wales would owe a duty of care in relation to damage caused by the intentional act (even criminal act) of a person under its control. Thus, in the circumstances now before the Court, it would seem, without deciding the matter, that the State of New South Wales would owe a duty to Mr Bremner, under the common law, for injuries sustained in the attack by Ms Adams, assuming, once more, that Ms Adams’ conduct was foreseeable and the scope of the duty of care required action by the State to take reasonable steps to prevent it.

101 To the extent that authority is required for the proposition that a common law duty of care does not apply to injury, loss or damage of all kinds, simply because it exists in relation to one kind, reference should be made to Council of the Shire of Sutherland v Heyman [1985] HCA 41; (1985) 157 CLR 424 at 487 in which Brennan J said:

“[27] The corollary is that a postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered and in reference to the plaintiff or a class of which the plaintiff is a member…


[28] It is impermissible to postulate a duty of care to avoid one kind of damage – say, personal injury – and, finding the defendant guilty of failing to discharge that duty, to hold him liable for the damage actually suffered that is of another and independent kind – say, economic loss. Not only may the respective duties differ in what is required to discharge them; the duties may be owed to different persons or classes of persons. That is not to say that a plaintiff who suffers damage of some kind will succeed or fail in an action to recover damages according to his classification of the damage he suffered. The question is always whether the defendant was under a duty to avoid or prevent that damage, but the actual nature of the damage suffered is relevant to the existence and extent of any duty to avoid or prevent it.” ( Sutherland Shire Council , supra, at 487, per Brennan J.)

102 In Hunter Area Health Service v Presland [2005] NSWCA 33; (2005) 63 NSWLR 22, the Court of Appeal was required to deal with a claim by a psychiatric patient who was discharged from a psychiatric hospital and who, some six hours after the discharge, killed his brother’s fiancé. The patient, the plaintiff at first instance, was acquitted of murder on the ground of mental illness and detained as a forensic patient. Relevant to the current proceedings, it was determined, in relation to that plaintiff, that the verdict ought properly to be not guilty on the grounds of mental illness, the Court determining that the person could not ascertain the difference between right and wrong and, relevantly, that the act was not voluntary. In the subsequent civil proceedings, the Supreme Court, at first instance, awarded damages against both the psychiatrist and the hospital. On appeal, the Court of Appeal allowed the appeal and quashed the judgment.

103 In Presland, in some significant respects, Spigelman CJ dissented from the reasons for judgment of the majority. In the Chief Justice’s reasons for judgment, he distinguished the situation that applied in Presland from the position that would apply in circumstances where the plaintiff had not successfully defended the charge on the basis of insanity. His Honour said:

“[71] There is only one case in which a criminal conviction for a serious offence has not led to a denial of civil remedy. That case, Meah v McCreamer(No 1) [1985] 1 All ER 367, has not been subsequently followed and must be taken to have been overruled (see Clunis supra at 989-990; State Rail Authority v Wiegold supra at 514; and Worrall supra).

[72] Furthermore, this Court’s decision in Grey v Simpson (Unreported, Supreme Court of New South Wales, Court of Appeal, Hope, Reynolds and Samuels JJA, 3 April 1978), on whether a plaintiff can recover for heroin addiction, may need to be reviewed. It was distinguished in Wiegold supra at 515B on the basis that the plaintiff in Grey v Simpson had never been found guilty of a crime. However, Grey is an application of a ‘but for test’ simpliciter and does not appear to be consistent with the subsequent authority of March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506. The result has been different in other similar more recent cases. (See Anderson v Hotel Capital Trading Pty Ltd [2003] NSWSC 1195 at [51] affirmed [2003] NSWCA 78 appeal dismissed; Anderson v Hotel Capital Trading Pty Ltd [2005] NSWCA 78; Holt v Manufacturers’ Mutual Insurance Ltd [2001] QSC 230 at [3].)

[73] There are a number of obiter dicta which strongly indicate that conduct which has been successfully defended on the basis of a plea of insanity is not unlawful conduct which should lead to a denial of civil liability.

[74] In Beresford supra, the deceased was found not to have been insane at the time of suicide. Relevantly for present purposes, albeit in the context of a claim by the deceased estate under a policy of life insurance, their Lordships said at 210-211:

‘The question, therefore, is whether the felonious suicide of the assured is a bar to the present action. If the assured had taken his life while insane, the fact would not have constituted a defence. The act of an insane person is not in law his act – Felstead v The King [1914] AC 534 – and such a death is a death within the terms of the policy, unless there are special conditions excluding it. But suicide when sane is by English law a felony.’


[75] An appeal to the House of Lords was dismissed. (See Beresford v Royal Insurance Company Ltd [1938] AC 586.) Lord Atkin confined his reasoning to the situation of ‘intentional suicide by a man of sound mind’ (at 594).

[76] Similarly, in Clunis as quoted above, the Court indicated that the conclusion would be different if ‘it could be said that he did not know the nature and quality of his act or that what he was doing was wrong’ (at 989). Dicta to similar effect appear in Rimert v Mortell supra at 874-875).


…


[78] The significance of moral culpability in determining the weight to be given to unlawful conduct is clearly established on the authorities. Where, as here, a person has been held not to be criminally responsible for his or her actions on the grounds of insanity, the common law should not deny that person the right to a remedy as a plaintiff. In such a context the unlawfulness of the conduct is not entitled to weight in a multifactorial analysis.” ( Hunter Area Health Service v Presland , per Spigelman CJ.)

104 His Honour the Chief Justice also dealt with the issue of unlawful conduct in relation to causation, to which I will return. The majority judges would not have allowed for the exception to which Spigelman CJ referred, namely, circumstances in which the person was held to be not guilty by reason of insanity. Referring to the judgment of Clunis v Camden and Islington Health Authority [1998] QB 978, Sheller JA said:

“[290] … The Court, as already mentioned, held that public policy precluded it from entertaining the claims of the plaintiff who had been convicted of a serious criminal offence unless it could be said that he did not know the nature and quality of his act or that what he was doing was wrong (p 989E). At 990, Beldam LJ referred to Gray v Barr and the emphasis placed by Lord Denning on the proposition that in manslaughter of every kind there must be a guilty mind. In considering the defendant’s duty, the Court of Appeal at 993 referred to X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 753 where it was observed that the question whether a doctor owed a duty of care to a patient in certifying that a patient was fit to be detained under the Mental Health Acts was left undecided in Everett v Griffiths [1920] 3 KB 163; [1921] 1 AC 631 and still remained open for decision in an appropriate case. However, their Lordships had no doubt that it would not be right to hold the employed psychiatrist liable to the plaintiff in damages for failure to arrange the plaintiff’s assessment more speedily than she did.


…


[292] In general terms, two considerations may stand in the way of the plaintiff’s success in the present case. Although he was acquitted on grounds of mental illness, his act was and remained an unlawful act. His was not justifiable homicide but an unlawful homicide for which he was not criminally responsible. By contrast, suicide or attempted suicide have not since 1984 been crimes in New South Wales; see s31A of the Crimes Act 1900 inserted with effect from 3 August 1984. Adams J recognised that the plaintiff’s acts were deliberate acts of killing. His acquittal on the grounds of mental illness proceeded in the language of Dixon J in Porter on the supposition that the plaintiff knew he was killing, knew how he was killing and knew why he was killing, but that he was quite incapable of appreciating the wrongness of the act. Although the plaintiff was acquitted and hence held not criminally responsible for the murder, what followed for which he now seeks compensation was the statutory response to the reason for his acquittal; s39 of the Mental Health (Criminal Procedure) Act . He was accordingly detained in strict custody in a psychiatric hospital. He claims damages for the consequence of that detention.


[293] While the plaintiff could call in aid the decision of Woolf J in Meah v McCreamer (No 1) that decision has been rejected by this Court in State Rail Authority of New South Wales v Weigold . But in that case, Samuels JA categorised the plaintiff’s criminal activity as the result of a rational and voluntary decision. It is notable that in the earlier decision of this Court in Grey v Simpson Samuels JA had remarked that the plaintiff was not to be compensated for illegal activity as such but for the adverse consequences of activities, causally linked to the breach of duty and foreseeable as a not unlikely result of it. The theme, through the cases I have referred to, is that where compensatory damages claimed for the consequences of a criminal act are refused this is because the act was indeed criminal and the plaintiff was sane when committing it. See for example, Champagne v United States . In this case, in the language of Smith J in Haber v Walker , which I have quoted in para 110, the plaintiff’s human action could not properly be regarded as ‘voluntary’. It was not the result of the exercise of a free choice.” (Per Sheller JA, Hunter Area Health Service v Presland .)

105 The other majority judge (Santow JA) said:

“[315] While here the respondent was, by reason of insanity, judged incapable of acting with the necessary intent, his act of homicide was an unlawful act, hardly to be described as constituting reasonable action. Without in any way relying on the ex turpi causa maxim, I ultimately conclude that it would be unjust for the common law to allow the respondent a remedy for the non-physical injuries he has suffered in these circumstances. I here differ respectfully from Spigelman CJ’s conclusion to the contrary, at [78]. I do not base my conclusion on any moral culpability on the part of the respondent. Rather I base it on what I conceive legal policy, ultimately based on community values, would consider just in such a case.

…

[380] I agree with the observations of both Spigelman CJ and Sheller JA, insofar as they deny application of the ex turpi maxim as a defence to civil action, or as automatically breaking the chain of causation, where there is no crime, nor any rational and voluntary act, nor moral culpability, by reason of the respondent’s insanity at the time he killed Ms Laws. That said, I consider that the residual unlawfulness of the respondent’s act of homicide is a factor that may properly be taken into account, when considering the normative aspects of causation. It is to that aspect I now turn.”

106 The reasons for judgment in Presland, cited above, make clear that in circumstances such as that now before the Court, in these proceedings, Ms Adams cannot succeed. Ms Adams was held responsible (albeit on a diminished basis) for her actions and the State of New South Wales cannot owe a duty of care to a person to take steps to prevent damage, of the kind here claimed, arising from that person’s own criminal conduct.

107 It is instructive to recite two passages from the judgment of the High Court of Australia in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254. In Modbury Triangle, Gleeson CJ said:

“[14] In some cases, where there is a problem as to the existence and measure of legal responsibility, it is useful to begin by identifying the nature of the harm suffered by a plaintiff, for which a defendant is said to be liable.”

108 To similar effect is the statement by Hayne J:

“[105] In cases such as the present, where the extent of the relevant duty is not clear, it is useful to begin by considering the damage which the plaintiff suffered, and the particular want of care which is alleged against the defendant. Asking then whether that damage, caused by that want of care, resulted from the breach of a duty which the defendant owed the plaintiff, may reveal more readily the scope of the duty upon which the plaintiff's allegations of breach and damage must depend.” [ It should be noted that this paragraph appears at [106] in the HCA 61 version .]

109 In this case, “the damage” suffered by Ms Adams was the “loss of liberty” as a result of a limiting term imposed by the Court. The want of care, which is alleged has caused that limiting term, is the granting of access to knives in the cooking class. However, in order to prevent that damage, the State of New South Wales would have been required to prevent access to any instrument that could be used to stab. In the current factual circumstances, Ms Adams, on different occasions, fashioned a spear, stole a knife and had access to pencils and pens. Each of those could have been used to effect similar physical damage. The duty to prevent access by Ms Adams to an instrument that was capable of stabbing, in order to prevent her from committing a further criminal offence for which she would be deprived of her liberty, is a duty that is impossible to fulfil and, to some extent, is inconsistent with the duty imposed upon the State in conducting Yasmar and in its control of Ms Adams, namely, readying her for community life. It may well be different if the damage against the occurrence of which the duty was aimed was physical damage e.g. if Ms Adams had stabbed herself.

110 The duty of the State, while Ms Adams was on remand, was to conduct its facility in a way that would, as soon as possible, allow Ms Adams to take her place in the community as a person who will observe the law. To make actionable a duty of care that would prevent the State from providing Ms Adams with cooking lessons, or a pen, would be inconsistent with that duty and so broad that the conduct of such centres would become prohibitive, if the duty of care were directed at “damage” occasioned by the operation of the law itself.

111 On the basis of the authority in Presland, and on the basis of first principles, the State of New South Wales owes no duty of care to Ms Adams to take reasonable steps to prevent Ms Adams from conducting herself in a way which would lead to the imposition on her of the criminal law or a limiting term under the Mental Health (Criminal Procedures) Act.

112 It is unnecessary to determine whether a duty was owed in relation to physical harm or any other kind of damage.

Causation

113 As has been stated on a number of occasions and by courts at every level of the judicial hierarchy, it is often difficult (if not impossible) to distinguish the factors that determine the existence of a duty of care, the scope of a duty of care and factors associated with breach and causation. Causation is a value judgment in which the court or tribunal must determine whether, as a matter of fact, the conduct alleged is responsible for the loss or damage to the plaintiff.

114 In this instance, the Court is required to ask itself whether the failure to prevent access to a knife was the operative cause of the alleged loss of liberty.

115 Access to the knife may have been a cause of the injury to Mr Bremner. Had Ms Adams injured herself with the knife, assuming she was acting in a manner consistent with her mental disorder and predisposition, then the access to the knife may have been an operative cause of that injury.

116 While it can be said that “but for” the access to the knife, there would not have been a criminal offence, a special hearing and the imposition of a limiting term, it is difficult to see how the access to the knife is the cause of the loss of liberty.

117 It should be stressed (as set out earlier) that as soon as Ms Adams can satisfy the Mental Health Review Tribunal that it is safe for her to live in the community, then orders allowing her liberty can be made. It must also be stressed that, if Ms Adams had been held not to be responsible for her actions, a limiting term of this kind would not have been imposed. Different measures would have been undertaken.

118 The cause of the loss of liberty is the order of the Court of Criminal Appeal in accordance with law. While the order of the Court of Criminal Appeal would not have occurred without prior unlawful conduct, which, in turn, would not have occurred unless Ms Adams had access to the knife (or some other sharp instrument), it cannot be said that the killing of Mr Bremner, or the prior access to the knife, is the cause of the loss of liberty.

119 In the words of the Chief Justice in Presland:

[86] There has always been a normative dimension to causation. The court asks ‘Should a person be held legally responsible for the loss or damage?’ … In Harvey v PD [2004] NSWCA 97; (2004) 59 NSWLR 639 at 670 [181]-[191], I indicated (at 643 [11]) a reservation about the general application of a ‘two limbed test’. However, I did not doubt that normative considerations are relevant when determining causation.” ( Presland , supra, per Spigelman CJ at [86].)

120 In the present circumstances, there is an intervening human act which causes the alleged loss or damage. That human act is an act, in accordance with the law, of the Court of Criminal Appeal, a body reposed with the authority of determining the appropriate responsibility for the conduct and imposing a limiting term for an appropriate period. It cannot be said, in any common sense or normative way, that the limiting term and the consequential loss of liberty is caused by the access to the knife. By analogy, such a submission is akin to awarding damages to the driver of a vehicle, whose driving record is reckless, against the owner of the vehicle, who was aware of that record, because of the provision of the vehicle to the driver. Moreover, the damage would, in that analogy, be for the loss of liberty for any sentence imposed upon the driver for reckless driving.

121 Ms Adams’ claim fails the causation test.

Damages

122 In this area the judgment of the Court of Appeal in Presland, supra, is again determinative against the claim of Ms Adams.

123 There was, and is, in place a lawful order of the Court of Criminal Appeal imposing a limiting term on Ms Adams. The restrictions on her liberty are the result of the lawful conduct of the authorities. It is instructive to ask what, precisely, the State of New South Wales could do to avoid this damage. Once the Court of Criminal Appeal imposed the limiting term, it was a statutory duty imposed upon the authorities to ensure, in accordance with the order of the Court, that Ms Adams’ liberty was constrained.

124 Even in wrongful imprisonment cases, damages are awarded only up to the time of a lawful order authorising imprisonment: Presland, supra, [100]-[101]. The same principle should be applied in the determination of damages for negligence: Presland, ibid.

125 Whatever “damage” was suffered by Ms Adams was the result of a lawful order issued under the Mental Health (Criminal Proceedings) Act and is not “damage” that is compensable under the civil law.

126 If Ms Adams were to allege that damage was suffered (being damage other than the normal and natural consequences of the loss of liberty as a result of the lawful exercise of jurisdiction by the Court of Criminal Appeal), then such damage would be the result of other conduct, lawful or unlawful, and would not arise as damage from the alleged breach of duty by the State of New South Wales in not preventing Ms Adams from gaining access to a knife.

Defences Under the Civil Liability Act 2002

127 If the Court be wrong on all of the foregoing, the State of New South Wales relies upon the provisions of the Civil Liability Act as a total defence to the claim for damages in this case. It is necessary to set out the relevant provisions of ss 11, 51, 54 and 54A of the Civil Liability Act. They are:

“[11] In this Part:
‘injury’ means personal injury and includes the following:
(a) pre-natal injury,
(b) impairment of a person’s physical or mental condition,
(c) disease.
‘personal injury damages’ means damages that relate to the death of or injury to a person.”


“[51] Part applies to civil liability for death, injury or property damage
(1) This Part applies to civil liability of any kind for personal injury damages (as defined in Part 2) or damage to property.
(2) This Part extends to any such liability even if the damages are sought in an action for breach of contract or any other action.
(3) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B.”
“[54] Criminals not to be awarded damages
(1) A court is not to award damages in respect of liability to which this Part applies if the court is satisfied that:
(a) the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and
(b) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage.
(2) This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned constitutes an offence (whether or not a serious offence).
Note: Sections 52 and 53 can apply to prevent or limit recovery of damages even though the defendant’s conduct constitutes an offence.
(3) A ‘serious offence’ is an offence punishable by imprisonment for 6 months or more.
(4) This section does not affect the operation of the Felons (Civil Proceedings) Act 1981 .
(5) This section operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned.”

“[54A] Damages limitations if loss results from serious offence committed by mentally ill person
(1) This section applies to a liability to which this Part applies in circumstances where:
(a) the liability arises out of the death of, or injury or damage to, a person, and
(b) that death, injury or damage occurred at the time of, or following, conduct of the person that, on the balance of probabilities, would have constituted a serious offence if the person had not been suffering from a mental illness at the time of the conduct, and
(c) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage.
(2) If a court awards damages in respect of a liability to which this section applies, the following limitations apply to that award:
(a) no damages may be awarded for non-economic loss, and
(b) no damages for economic loss may be awarded for loss of earnings.
(3) A ‘serious offence’ is an offence punishable by imprisonment for 6 months or more.
(4) This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned:
(a) constitutes an offence (whether or not a serious offence), or
(b) would have constituted an offence (whether or not a serious offence) if the defendant had not been suffering from a mental illness at the time of the conduct.
(5) This section operates whether or not a person whose conduct is in issue was acquitted of an offence concerning that conduct by reason of mental illness or was found by a court not to be fit to be tried for an offence concerning that conduct by reason of such an illness.”

128 The State of New South Wales submits that s 51 of the Civil Liability Act applies ss 54 and 54A to the claim of Ms Adams in these proceedings, because the damages claimed by Ms Adams are “for personal injury damages”, which means damages that “relate to the death” of Mr Bremner. The State of New South Wales submits that the term “relate to” should have a construction, which is the same as “relating to”, and conveys a wide permissible range of relationship. It is sufficient if there be any degree of connection between the damages and the death or injury: Australian Securities Commission v Bank Leumi Le-Israel (Switzerland) and Ors [1996] FCA 1789; (1996) 69 FCR 531 at 547; Workers’ Compensation Board (Qld) v Technical Products Pty Ltd [1988] HCA 49; (1988) 165 CLR 642 at 653, 654; Smith v Federal Commissioner of Taxation [1987] HCA 48; (1987) 164 CLR 513 at 533; PMT Partners Pty Ltd (In Liq) v Australian National Parks & Wildlife Service [1995] HCA 36; (1995) 184 CLR 301 at 328; but will not, usually, apply to a connection that is remote: Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24; (1989) 167 CLR 45 at 51. What is required is a connection, which can be either direct or indirect, close or distant, but must be able to be described as one that relates to the particular subject matter under consideration: Australian Competition & Consumer Commission v The Maritime Union of Australia [2001] FCA 1549; (2001) 187 ALR 487 at [68], [69], and [74].

129 It is strictly unnecessary for me to determine the full extent of ss 54 and 54A of the Civil Liability Act. They were inserted immediately following the award of damages at first instance in Presland, from which the appeal to the Court of Appeal, cited above, was taken. It seems that the legislature sought to deny a liability in tort arising from the criminal conduct of a plaintiff. Nevertheless, the criminal conduct must have a connection to the damage that is claimed. For the reasons I have given (for the conclusion that Ms Adams’ claim fails on the question of causation), it would seem, consistent with that approach, that the claim for damages is remote from the criminal conduct of Ms Adams.

130 However, assuming that the conclusion reached in relation to causation is wrong, then ss 54 and 54A of the Civil Liability Act would apply to exclude compensation for damage. As already stated, it is unnecessary to reach a concluded view on this issue.

Contributory Negligence

131 For all of the above reasons, I would consider that Ms Adams’ respective share in the responsibility for the damage is significantly greater than that of the State of New South Wales. I apply the test in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492, in which the High Court said:

“[10] The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris [1956] HCA 26; (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. [1953] UKHL 4; (1953) AC 663, at p 682; Smith v. McIntyre (1958) Tas.SR 36, at pp 42-49 and Broadhurst v. Millman (1976) VR 208, at p 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”

132 The relative culpability of the State of New South Wales and Ms Adams, on the above analysis, would result in Ms Adams’ contributory negligence being 100% of the damage caused. Section 9 of the Law Reform (Miscellaneous Provisions) Act 1965 provides that contributory negligence does not defeat the claim for damage. However, ss 5R and 5S of the Civil Liability Act, require the Court to apply the same principles in determining contributory negligence, as are applied in determining the claim for negligence. In that respect, the standard of care in contributory negligence is that of a reasonable person in the position of that person. I take that to include the diminished responsibility of Ms Adams. Further s 5S of the Civil Liability Act reinstates the outcome that contributory negligence can be assessed at 100% of the damage. This is not a reinstatement of the historical position that contributory negligence was a complete defence. Historically, minimal contributory negligence would be a complete defence to an action in negligence. This simply clarifies that in assessing relative culpability and respective share in the responsibility, the Court is entitled to come to a view that the contributory negligence should be assessed at 100% of the cause of the injury.

133 For the reasons already given as to responsibility for the stabbing, duty of care, damages and causation, I would ordinarily assess the “contributory negligence” to be at 100% of the damage. However, if the foregoing conclusions be incorrect, and it can be said that the failure to prevent access to the knife was a cause of the injury, I would still assess the relative culpability and the respective share such that any “damage” suffered by Ms Adams would be reduced by at least 75% of that which would otherwise be awarded.

134 Given the findings already made, I do not assess quantum.

Conclusion

135 In accordance with the foregoing reasons, I conclude that the State of New South Wales has no duty of care to take reasonable steps to prevent Ms Adams from “suffering” the lawful effect of her own criminal conduct, at least in circumstances where the damage is not physical injury.

136 Further, the “damage” “suffered” by Ms Adams was not caused by the failure to prevent Ms Adams having access to a knife, but rather was caused by the lawful imposition of a limiting term that recognises the relevant responsibility of Ms Adams for her own conduct, and restricts her liberty only for as long as she represents a threat to society.

137 For the same reasons, or reasons related to them, the lawful imposition of a limiting term, by a court with authority to impose it, is not damage and cannot be the subject of compensation or an award of damage. The restrictions and/or loss of liberty “suffered” by Ms Adams is a loss of liberty required by law and is not, and cannot be, damage that is compensable.

138 For the foregoing reasons, the Court makes the following orders:

(i) Judgment for the defendant;

(ii) Proceedings be dismissed;

(iii) The parties have liberty to approach the Court, through my Associate, for any consequential order and/or any order for costs. Such liberty must be exercised within 14 days of the date hereof, at which time directions will be given for the filing of written submissions in relation thereto.

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