Darcy v State of New South Wales

[2010] NSWDC 210

CITATION:	Darcy v State of New South Wales [2010] NSWDC 210
HEARING DATE(S):	23, 24, 25, 26, 27 and 30 August 2010
JUDGMENT DATE:	21 September 2010
JURISDICTION:	Civil Jurisdiction
JUDGMENT OF:	Johnstone DCJ
DECISION:	Judgment for the defendant Plaintiff to pay the defendant’s costs
CATCHWORDS:	TORT - false imprisonment - adult plaintiff with an intellectual disability, suffering from epilepsy and a borderline personality disorder with complex needs and subject to guardianship orders - claim by tutor against the State in respect of an allegation of wrongful detention by DoCS for 6½ years - whether there was conduct by DoCS officers, the coercive consequence of which was the actual complete deprivation of, or a total restraint upon, the plaintiff’s liberty - if so, whether there was lawful authority justifying the imprisonment - whether the guardian consented, or had power to consent, to the detention - whether the common law principle of necessity operated to justify the detention
LEGISLATION CITED:	Civil Liability Act 2002 Crown Proceedings Act 1988 Disability Services Act 1993 Guardianship Act 1987Law Reform (Vicarious Liability) Act 1983 Mental Health Act 1990 Mental Health (Criminal Procedure) Act 1990
CASES CITED:	Hunter Area Health Service v Presland [2005] NSWCA 33 Lamb v Cotogno (1987) 164 CLR 1 Marshall v Watson (1972) 124 CLR 60 Myers Stores Ltd v Soo [1991] 2 VR 597 New South Wales v Ibbett (2006) 229 CLR 638 R v Bournewood Community and Mental Health NHS Trust; ex parte L [1999] 1 AC 458 Ruddock v Taylor [2003] NSWCA 262 State of South Australia v Lampard-Trevorrow [2010] SASC 56 Trobridge v Hardy (1955) 94 CLR 147
PARTIES:	Joanne Darcy by her tutor Diane Aldridge (Plaintiff) State of New South Wales (Defendant)
FILE NUMBER(S):	2007/291149
COUNSEL:	Mr C Birch SC and Ms K Edwards (Plaintiff) Ms S Norton SC and Ms L Boyd (Defendant)
SOLICITORS:	Public Interest Advocacy Centre (Plaintiff) Crown Solicitor’s Office (Defendant)

REASONS FOR JUDGMENT

The proceedings and the issues

1. The plaintiff was a resident at the Kanangra Centre, Morisset, from 20 June 1996 to 18 December 2002, a period of 6½ years. Kanangra was a centre then operated by the Department of Community Services (DoCS) at which persons with intellectual or developmental disabilities were accommodated for treatment and care.

2. These proceedings are brought against the State on behalf of the plaintiff, by her tutor, alleging the plaintiff was wrongfully imprisoned at Kanangra by officers of DoCS. She claims damages, including aggravated and exemplary damages. It is not disputed that the State is liable to be sued in respect of the plaintiff’s claim: s 5 Crown Proceedings Act 1988; nor that it is liable, vicariously, for the actions of officers of DoCS complained of in the proceedings should they be found to have been wrongful: s 8 Law Reform (Vicarious Liability) Act 1983.

3. The plaintiff was born on 27 May 1977. She was 19 years old when she went to Kanangra and 25 when she left. She is now 33. At all relevant times she suffered from an intellectual disability, a borderline personality disorder, and epilepsy. She was not capable of managing her affairs and was partially incapable of managing her own person. As a result she had complex care needs including requirements for extensive support and supervision. In 1996 and for the period of the plaintiff’s stay at Kanangra the plaintiff was subject to guardianship orders made under the Guardianship Act 1987. Her property and affairs were subject to management under the Protected Estates Act 1983.

4. The State contends that by reason of the plaintiff’s disabilities and recurring serious behavioural problems, including violent verbal and physical outbursts, she required special care and supervision including accommodation involving specific limits and restrictions. She was accommodated at Kanangra where these needs could be met.

5. The tutor contends that the plaintiff was induced by the conduct of DoCS officers to submit to a total deprivation of her liberty, against her will and without the consent of her guardian, as a result of which she was wrongfully imprisoned, there being no legal justification for her detention at Kanangra.

6. The issues for determination in relation to liability are:

· Whether the plaintiff’s stay at Kanangra amounted to imprisonment.

· If so, whether such detention was lawfully justified.

Factual background

7. The plaintiff first came to the attention of DoCS at the age of 8 when in 1985 she was made a ward of the State, and placed into care.

8. For the next 5 years until the age of 13 she was accommodated by DoCS at various locations including Katoomba and Sydney, then in a group home at Port Macquarie. He mother was residing nearby at Kew, and made regular visits to her daughter at the group home. When that group home was closed in 1993, the plaintiff went back to live with her mother and ceased to be a ward of the State.

9. From 1993 the plaintiff then lived with her mother for a period. One of the consequences of the plaintiff’s disabilities was that she had less social skill than other people her age and she was prone to deal with difficult or tense situations by outbursts of violence, during which she was difficult to control. During this period the plaintiff received assistance for this and her other developmental difficulties from carers provided by DoCS attending and giving her support. The mother was also provided with weekly respite assistance. In January 1994, Joanne commenced supported employment at the Hastings Foundation, a workshop for disabled people, but only attended there for a short period because of behavioural problems. Whilst at the Foundation she met Gary Holland with whom she commenced a relationship. After leaving the Foundation, the plaintiff commenced a TAFE course with the intention of studying numeracy and literacy, but she attended for an 8-week period only, again due to behavioural problems. As a result of these behavioural problems the plaintiff was taken to see a consultant psychiatrist in Port Macquarie, Dr Parsonage, in August 1994. In 1995, when the plaintiff was 17, Mr Holland moved in with her at her mother’s house. However, the plaintiff’s behavioural problems continued and eventually the mother approached DoCS to request that alternative accommodation be found for her daughter.

10. In June 1995, while the plaintiff was still 17, she and Mr Holland moved out into a flat at Clifton, Port Macquarie, where they lived together for a short period. His level of disability was less serious than hers, and he was more capable of looking after himself. When not at work, he spent time looking after her and helping monitor any anger management problems that she might have been having. When he was at work, support amounting to some 20 hours a week was provided by carers made available by DoCS.

11. However, the plaintiff’s behavioural problems deteriorated. In September she saw Dr Parsonage again in September 1995 following episodes of “upsetting other people.” This involved her going into the homes of neighbours, often uninvited, and at times she was verbally abusive to them. She was also involved in episodes with community workers when she would block the door to prevent them leaving. In October 1995 she was taken to the Developmental Disabilities Clinic at the Royal North Shore Hospital after gaining excessive weight, putting her into the morbidly obese range.

12. After Christmas 1995 the plaintiff fell out with Mr Holland and moved out, refusing to return, and residing at various different locations. It appears she may have spent part of this period living in a caravan. A number of episodes occurred which brought her to the attention of the Police and the Criminal Justice system. In early February 2006 she assaulted a staff member at a group home, and a few days later she bit a police officer who was attempting to remove her from the group home after she had created a disturbance. As a result, her DoCS case manger, Alison Bate, took her to see a consultant psychiatrist, Dr P Wurth, from Chatswood, on 8 February 1996.

13. Ms Bate then prepared an application to the Guardianship Board for guardianship and financial management orders. In anticipation of a hearing an Investigation & Liaison Officer, Ms Jane Samek, conducted certain enquiries, obtained various reports and other documents, and prepared a report dated 26 March 1996, in which she foreshadowed the need for the appointment of a guardian and a financial manager (Exhibit 3.27). By this time the plaintiff had been accommodated alone in a flat, but now required some 24 hours support daily from various sources, such as Hastings Respite Care and Adult Community Education Services.

14. A hearing in relation to the application was held by the Guardianship Board at Port Macquarie on 28 March 1996. In its Reasons for decision the Board said (Exhibit D4 - 8):

“The medical, psychological and psychiatric reports available to the Board indicate that Ms Darcy has a moderate developmental disability, along with epilepsy, which is controlled on medication, and behavioural disturbance. She also has some medical problems and has gained approximately 5 stone in weight over the past year.

The Board was, therefore satisfied that Ms Darcy is a person with a disability which affects her capacity to manage her personal affairs. The Board was also satisfied that she is a person in need of a guardian.

This need arises largely because Ms Darcy’s aggressive and sometimes violent behaviour has given rise to a number of problems in the provision of appropriate accommodation, support and health care.

Ms Darcy has been unable to stay in any one place of accommodation for any length of time since her mother, Ms Stringer, indicated that she could no longer cope with her at home. She was, at the time of the hearing, living alone in a flat. She was receiving approximately 20 hours support per day, provided by various services. It is likely that she will have to leave this accommodation however, following an incident in which she smashed a neighbour’s window when her support worker failed to arrive…

The provision of adequate support services for Ms Darcy is a major problem for local service providers. She is currently in receipt of a package of services cobbled together with various local community and government agencies using funding from a variety of sources. Ms Darcy’s behaviour has, in the past, led to the withdrawal of services and creates an on-going problem in finding staff who are willing to work with her. It has resulted in her having to be accommodated alone, thus increasing the cost of 24 hour supervision. Those present expressed their concern that funding must eventually run out.

Ms Darcy’s behaviour has also resulted in criminal charges…

Ms Stringer told the Board that she would prefer not to be appointed as her daughter’s guardian. The Board agreed that, given the complexities of the issues involved as well as the potential for conflict and stress, it was necessary to appoint the Public Guardian.”

15. The Board made formal findings as follows (Exhibit D8):

Guardianship

1. Ms Joanne Darcy has an intellectual disability by virtue of which she is restricted in one or more major life activities to such an extent that she requires supervision and social habilitation. Consequently, she is a person who has a disability within the meaning of the Act.

2. By virtue of that fact, Ms Darcy is at least partially incapable of managing her person.

3. The circumstances of the case mean that it is necessary and appropriate in Ms Darcy’s interests for a guardian to be appointed for her with the functions referred to in the order and for the period and subject to the conditions referred to therein.

Financial Management

1 .Ms Darcy is not capable of managing her affairs.

2. The circumstances of the case mean that it is necessary and appropriate that her property and affairs be subject to management under the Protected Estates Act 1983.

3. Management of the property and affairs of Ms Darcy should be committed to the Protective Commissioner.

16. The Board therefore made a Management Order under the Protected Estates Act 1983 and a Limited Guardianship Order under the Guardianship Act 1987 both dated 28 March 1996. The latter of these two orders placed the plaintiff under the guardianship of the Public Guardian for a period of 12 months, with the following limited functions and subject to certain standard conditions (Exhibit D1- 2):

5. The guardian shall have the following functions in relation to Ms Joanne Darcy:

(a) Accommodation
To determine where Ms Joanne Darcy may reside.

(b) Health Care
To determine…health care and…treatment…

(c) Medical and Dental Consent
To consent on her behalf to medical and dental treatment…

(d) Services
To make decisions on her behalf concerning major services to which she should have access including, in particular, legal services, accommodation support services and leisure services.”

6. This order is subject to the following standard conditions:

(a) The guardian, in the exercise of the above powers and functions, shall take all reasonable steps to bring Ms Joanne Darcy to an understanding of the issues affecting her and shall obtain and take into consideration her views when significant decisions are made.

(b) The guardian may not introduce or authorise any form of restraint or confinement of Ms Joanne Darcy, nor any threat of such restraint or confinement.”

17. Finding appropriate accommodation for Ms Darcy following these events was problematic. This is evident from the Running Notes (Exhibit C) made by officers from the Office of the Public Guardian (OPG). As predicted by the Guardianship Board, the plaintiff was evicted from the premises in which she was then residing by the Tenancy Tribunal. The following extracts from the Running Notes indicate clearly the predicament in the lead up to the Court hearing involving the various criminal charges brought by the Police against the plaintiff for assault and malicious damage:

16.04.96 P/C from Alison Bate. Informed PG that Ms Darcy attended Residential Tenancy Tribunal this morning. Result is eviction from unit within t 4/52. Ms Bate wanted to know what other options there were. I restated PG’s role, but suggested she look at respite placement maybe in Newcastle (Matfen Close) or Cooinda in New England Area. She suggested Kanangra. I stated this would not be a preferred option and to even PG to think of this she would need to show all other options have been tried and failed…

23.04.96 Meeting with Alison Bate…

In relation to future accommodation, Alison wished to pursue Kanangra… Mother does not wish to care for her…Respite Services in the area are home based and that nobody would accept her due to her reputation…

Recommended the following:

* That before Kanangra would be considered, the following applications are to be made and results forwarded to the PG;

* Home Based Respite
* Private Accommodation with investigation into the possibility of Ms Darcy moving in with a friend
* Respite non home based service statewide (Cooinda application to be made immediately)
* Department of Housing
* Boarding House - second last option
* Kanangra - last option

23.04.96 Visit to Ms Darcy - Ms Darcy wished to reside in a house or a flat with another boarder. She wished this person to be “Mark Marki”. She was willing to move out of the area (as far as Taree or Forster - but no further). Ms Darcy has no concept of Boarding Houses or Respites…Ms Darcy stated that she wished to find work as staying home all day was “boring”.

19.06.96 T/C from Alison Bate regarding Ms Joanne Darcy.
Advised that Ms Darcy is in police custody, and is going to court this morning.

Yesterday, Ms Darcy moved into a Dept of Housing flat with a friend, supported by Hastings Accommodation Support. The placement did not even last a night before Ms Darcy had assaulted her flatmate, and attempted to assault the carer. Both the latter left the house, then tried to return later, but were not able to gain access as Ms Darcy had evidently barricaded herself in…Finally, the police were called, and Ms Darcy was taken into custody. Apparently there has been a court appearance every month this year, apart from May. Generally, AVO/Assault issues…

Current Issues:
Ms Bates advised that she did not have an alternative placement option for Ms Darcy, but that she couldn’t return to the flat in view of the fact that she had assaulted her flatmate. I advised Ms Bates that it was her responsibility to secure alternative options, or the service’s responsibility to find Ms Darcy an alternative, and that they needed to have a planned response to the situation…

Ms Bates believes that Ms Darcy is expressing her inability to cope with community living, since all placements to date had broken down, even when she had 24 hour support…

I reiterated the importance of finding feasible alternatives, including all options, and not resorting to Kanangra, which was what Ms Bates proposed…

I advised that we would not consent to Kanangra unless other options had been fully explored…

18. The impasse concerning where the plaintiff could be appropriately accommodated was resolved by the court order made the next day. After spending the night in jail, the plaintiff went before the Local Court on 20 June 1996.

19. The Magistrate ordered (Exhibit D10):

“Dealt with Section 32 Mental Health (Crimes) Act. Dismissed and discharged and order that the defendant attend at Kanangra Centre Morriset Hospital.”

20. Six other charges against the plaintiff were adjourned until 24 December 2010.

21. The Magistrate’s order was in fact a reference to s 32 of the Mental Health (Criminal Procedure) Act 1990, which provided:

(1) If, at the commencement or at any time during the course of proceedings before a Magistrate, it appears to the Magistrate:

(a) that the defendant is developmentally disabled, is suffering from mental illness or is suffering from a mental condition for which treatment is available in a hospital, but is not a mentally ill person within the meaning of Chapter 3 of the mental health Act 1990; and

(b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law, the Magistrate may take the action set out in subsection (2) or (3).

(2) …

(3) The Magistrate may dismiss the charge and discharge the defendant:

(a) into the care of a responsible person, unconditionally or subject to conditions; or

(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment of the defendant’s mental condition or treatment or both; or

(c) unconditionally…

22. According to a report from the DoCS manager, Ian Mussett (BWR “A”):

“The Magistrate, after discussion with Joanne’s legal representative, myself, Alison Bate, Community Worker, and Debbie Ryan, Co-ordinator, Hastings Accommodation Service, refused to release Joanne back into the community, citing the safety of the community, Joanne’s welfare and the safety of her support staff, as his reasons. He indicated a secure placement was necessary.”

…the Magistrate was seeking a placement with the Department of Community Services, in lieu of remanding her in Mulawa Prison.”

23. The plaintiff was, therefore, taken to Kanangra on 20 June 1996, by Ms Bate. On the way she took the plaintiff to see her mother. According to the mother, Ms Bate told her:

“The judge in Joanne’s case wants an assessment done on Joanne so I am taking her to Kanangra for a two (2) to three (3) month assessment. The judge didn’t know what her abilities were so he ordered an assessment. I am taking her there now and will let you know when I have dropped Joanne off there.”

24. Mr Mussett explained the position in his report:

“Conclusion:

Joanne cannot be managed in the community, even with 24 hours support. Her behaviour towards staff and others places them at risk of physical assault, threats harassment and trespass. It is difficult to maintain behaviour management strategies due to the high staff turnover and, as time goes by, the employment of less experienced staff.

Joanne’s behaviour in the community reduces the acceptance of the community to persons with intellectual disabilities.

A secure placement such as a residential unit would allow a more complete assessment of Joanne’s medical and behavioural needs in a professional atmosphere. Group Home placement is not considered appropriate as experience has shown other residents and staff continue to be at risk of verbal and physical abuse. It is a requirement of Occupational Health and Safety to provide a safe working environment for staff.

Exit Plan:

Joanne be permitted to be placed at Kanangra for at least 3 months, to enable:

● a full assessment of Joanne’s behaviour and medical regime.

● behaviour management strategies to maintain Joanne In the community with safety to staff and other persons.

● to enable alternate accommodation to be located for Joanne which will meet her, and her neighbours, needs.

● the opportunity to provide specialist skill training for staff to meet Joanne's challenging behaviours.

● to finalise a funding package for Joanne to meet her needs for 24 hours' support.

25. The Kanangra Centre was operated by DoCS to accommodate persons with intellectual or developmental disabilities for treatment and care. There were some 150 residents there, and the centre was only used as “last resort” accommodation. It consisted of a complex of buildings and cottages set in spacious grounds in an isolated area located on the shores of Lake Macquarie (see Exhibit D14). The complex was demarcated on its various sides by the lake, a State forest, and fences. It was adjacent to, but not part of the Morisset Hospital, situated some 5 kilometres from the township of Morisset, from which access was to be gained via a road that wound through the State forest (see Exhibit A).

26. Ms Carol Tranter, the Nurse Manager, Accommodation and Nursing Services at Kanangra, who has worked there for 29 years (1975 - 1981 and 1986 to date), provided an affidavit in which she described the operations and processes of the centre. She was also cross-examined. My summary of her evidence as to the type of accommodation available and the arrangements for allocation of residents to the different units or cottages at the centre is as follows:

The Kanangra complex of buildings was made up of units and cottages in which residents were accommodated on a graded basis.

Unit 3 was a “secure unit” in which all external doors and gates were locked. Residents staying at Unit 3 had a higher level of developmental disability combined with more difficult and challenging behavioural problems. Residents slept in dormitories that had been converted into one or two-bed rooms to enhance privacy. Movements were restricted within the building, and residents could only leave the building if staff unlocked a door. There was a large backyard, and if allowed out into the yard, residents could only leave if staff unlocked a gate, or they climbed the 3-foot high fence. A resident could only leave the unit after a request made to a staff member, who would ask where the resident wanted to go and for how long. The staff member would make a decision after considering various risk factors.

Unit 2 was also a “secure unit” in which external doors and gates were locked. However, residents could move freely between the day room and the yard. The yard was large, but demarcated by a 3-foot high fence. Sleeping arrangements were dormitory style and partitioned into groups of 3 to 4 beds, and residents were segregated by gender. In about 1999 the building was renovated into apartments to improve privacy. The decision-making process for clients wanting to go outside the unit, either into the yard or the grounds, was “looser”, reflecting the generally higher capacity and traits of the residents allocated to that unit.

Unit 10 was not locked and residents were free to move about without staff having to unlock doors and gates. It included common areas, such as tearooms, and single bedrooms. The process for residents going outside the unit was similar to that for Unit 2.

The cottages were not fenced and residents could leave them to venture into the grounds after telling staff where they were going and for how long.

When new residents were admitted to Kanangra, they first went to Unit 3 for assessment by psychologists, psychiatrists and speech therapists. General observational assessments were made by nursing staff. Team meetings with the senior psychiatrist, clinical support staff and doctor assessed which group and unit the new resident would be most suited to and what kind of programme would be appropriate for them. Residents were then allocated accommodation according to their assessment results.

Residents were subsequently transferred according to criteria such as availability, compatibility and ability in relation to keeping themselves safe.

27. According to Ms Tranter, residents were seldom allowed beyond the Kanangra grounds unless accompanied by a staff member. Decisions in that regard were made after consulting other staff and considering factors such as the risk to the resident, the risk to others and to the community, and the peculiarities of the relevant resident. It was the responsibility of staff to ensure that residents returned to their allocated unit or cottage by the specified time. If a resident refused to return to their unit, as a last resort after all other efforts to persuade them to do so failed, the police were called to assist. If a resident could not be located, they would be reported as a missing person and returned to Kanangra when located.

28. If a resident wanted to leave Kanangra altogether, staff would discuss the reasons with them. If the issues raised could not be addressed, the Office of the Public Guardian was called, and someone from that office would visit the resident and discuss alternative accommodation. If it came to someone being discharged, that was approached in a very organised manner, and an exit plan drawn up taking into account risks to their health and wellbeing and the risk to other members of the community. But a resident was never discharged without alternative accommodation being in place:

Q. Joanne's mother mentioned the expression yesterday of, "You don’t want to set up residents to fail when they leave the Centre".
A. No.

Q. So you have to make sure there's somewhere that's suitable to their needs, has the amount of care per day they require, has compatible, if possible, people to share it with; they're to be in a share situation. And not only do they have to have enough numbers looking after them; those people have to be appropriately trained.
A. Yes.

Q. And that can sometimes be difficult, to find people with appropriate training.
A. Yes.” (T 90)

29. Upon her arrival at Kanangra on 29 June 1996, the plaintiff was admitted to Unit 3 for assessment and she remained there for about 10 days until 10 July 1996. She was then transferred to the less restrictive Unit 2, in which she spent the majority of her time at Kanangra. She also had a few months in one of the cottages, specifically the Koala Cottage (No 5) on a trial basis in the first half of 1997, but that trial failed, for a variety of reasons, including manipulative, abusive and intrusive behaviour and incompatibility with the other residents and her negative impact on them generally. (The reasons are detailed at Exhibit D47 - 48)

30. In the course of her time at Kanangra, the plaintiff undertook various courses and training programmes. These included cooking classes, a computer course and behavioural management programs. According to one of the professionals involved in her management, Mr Brett Rogers, the plaintiff improved as a result of her stay at Kanangra. Her excessive weight was brought unde control, and a better regime of medication and behavioural management was devised for her. She became far more manageable, better able to interact socially and her living skills improved immensely.

31. There were undoubtedly restrictions and limitations placed upon the plaintiff during her time at Kanangra. But Ms Tranter said (T 91):

Q. Do you think the restrictions placed on her when she was at Kanangra, her movements, were unreasonable?
A. No.

Q. Were they reasonable?
A. Yes.

Q. Were they necessary for her care?
A. Yes.”

32. Notwithstanding these limitations, the plaintiff appears to have enjoyed a level of freedom to move around the complex. She formed a relationship with another resident, Mr Bill Troutman, who resided in Unit 10, and she spent quite a deal of time with him there.

33. Nor was it unusual for her to venture outside the complex. Residents from her unit went shopping one day a week. Some of the more capable ones were allowed to shop at their own pace, as it were, and meet up with someone to come back. The plaintiff also went to Morisset on a regular basis for other activities including netball, to undertake a paper run, and a car-washing programme.

34. In addition to these activities external to the complex, the plaintiff regularly left the complex to visit her mother, by train, to go on holidays at other locations, and on excursions with a group of people known as The Samaritans.

The role of the Local Court

35. There can be little doubt that the plaintiff went to Kanangra at the instigation of the Local Court, pursuant to the Magistrate’s order made on 20 June 1996. It may be assumed that this first order was made pursuant to s 32(3)(b) of the Mental Health (Criminal Procedure) Act 1990. The other charges pending against the plaintiff that were adjourned until 19 December 1996 came back before Magistrate Jackson on that day and were also dismissed, on the following basis (Exhibit 3.1 – 6):

“Defendant discharged upon condition that she accept supervision & treatment available to her from DoCS.”

36. I am satisfied that this order was also made pursuant to s 32 of the Mental Health (Criminal Procedure) Act 1990, more specifically it was made pursuant to s 32(3)(a) and (b), such that the plaintiff was discharged into the care of DoCS, on condition that she accept supervision and treatment available to her, from DoCS.

37. It seems clear to me that the plaintiff’s subsequent residency at Kanangra flowed from that authority.

The role of the guardian

38. From the outset, the Public Guardian regarded Kanangra as the least favoured option for the accommodation of Ms Darcy (Exhibit C), and continued throughout to express its consistent opposition to her remaining there.

39. But the reality was, the Public Guardian was not in a position to do anything about the placement, other than advocate for a change. Its dilemma is encapsulated in these extracts from a report prepared for the Guardianship Board dated 6 March 1997 in preparation for a hearing on 10 March 2007 (Exhibit D28):

Accommodation:

The Public Guardian realises that Kanangra is not an appropriate accommodation setting for a range of reasons outlined in the copies of reports submitted with this report. Thus, one of the Public Guardian’s priorities is to advocate for Ms Darcy to be placed in a more appropriate setting which is not institutional.

The Public Guardian has, and will continue to advocate for Ms Darcy to be returned to the community, with the appropriate support services in place.

Services:

The Public Guardian recognises that the Department of Community Services is the primary agency which has the skills and expertise to be able to achieve Ms Darcy’s transition into the community, and the Public Guardian perceives its role as continuing to liaise with the appropriate services to ensure this occurs as soon as possible.”

40. Senior Counsel for the defendant, Ms Norton, expressed it this way (T 289):

“So the difficulty is what to do, what your Honour does with the evidence of the various Public Guardians. Your Honour, in our submission they were the substitute decision-makers and, as we said in our written submissions, no matter what they said on paper by way of advocacy, they knew that if they didn't consent to her being removed, she would stay there. So in effect de facto they consented to her staying there. They are not service providers so they couldn't actually provide a house for her. But, as Ms Davidson said in her affidavits, from time to time if they thought the level of supervision was too great on someone, they would physically go and get them and remove them. They didn't do that in this case. Therefore she remained there by reason, as Mr Conna put it, of the status quo and they knew that was happening.

To suggest that it offends the orders of the Guardianship Board, or Tribunal as it was from time to time, is not to the point. The board and the tribunal knew where she was. The meetings were held there. To suggest that her being held there was in breach of their orders and they said nothing about it is fanciful basically.”

41. Mr Conna, the Public Guardian’s delegate with responsibility for the plaintiff up until August 1997 said this in his affidavit:

“I was the person supervising the guardian who had responsibility for ensuring her wellbeing and welfare in accordance with the terms of the Limited Guardianship Order. From May 1997 to August 1997 I had direct responsibility for her as Senior Guardian… [7]

There was general agreement as to what appropriate accommodation was required, however it was clear that there was no funding available to implement any such plan. It must be borne in mind that Joanne was only one of hundreds of people in those days… that needed to be catered for, having regard to her special needs… [15]

There was, in reality, no other place where Joanne could have been accommodated. If there was any suitable accommodation as an alternative to the Kanangra Centre, then I most certainly on behalf of the OPG would have provided consent for her to be accommodated in the more suitable placement… [16]

The Public Guardian was never in a position to remove Ms Darcy from the Kanangra Centre directly. The Public Guardian… never at any stage had available suitable accommodation for her to have been placed in… [22]

Whilst the Kanangra Centre may not have been an ideal placement for Ms Darcy during the period 1996 to 2002, it is my view that it was the most appropriate placement in the circumstances…” [24]

42. Ms Patricia Davidson took over the responsibility for the plaintiff after Mr Conna. In her affidavit she said:

“As Joanne’s guardian with the OPG, I was responsible for advocating on her behalf with the various government departments, which include DoCS/DADHC, and the disability service organisations… [5]

In the end, whilst I was not happy I had no option but to allow Joanne to remain at Kanangra. I made repeated attempts to place pressure on the relevant authorities to find suitable accommodation in accordance with any plan that would meet her accommodation needs… [17]

As unfortunate as it may be, my assessment of the situation is that, whilst it was not considered appropriate, desirable or in her best interests to be at the Kanangra Centre, as a matter of necessity she was required to be there so that her welfare and safety could be ensured and her daily needs met… [18]

The only other accommodation at that time which I believe may have been available to her would have been in a boarding house… I felt that the placement of her in a boarding house would have jeopardised her safety and welfare…” [16]

43. An option available to the Public Guardian was intervention. However, Ms Davidson regarded that option as inappropriate:

“I have in the past physically had persons under guardianship removed from an institution such as Kanangra when I considered it to be inappropriate… [15]

Insofar as Joanne Darcy is concerned, I did not take the step of having her physically removed from Kanangra Centre. I was aware that Joanne did not like being at Kanangra Centre and that she wished to be removed from Kanangra Centre. However, it is my view that, if I did physically remove her as I had with other people under guardianship, I would have failed in my duty of care…” [16]

44. The Guardianship Board continued to monitor the situation. A hearing was held at Kanangra on 10 March 1997 when evidence was taken and documents were reviewed. In its reasons, the Board said (Exhibit D30 - 33):

“Whilst Ms Darcy is well cared for at Kanangra Centre it is highly inappropriate that she remain there… All persons were in agreement that Ms Darcy needs to return to the local community as it is clearly inappropriate and against Department of Community Services’ policy that persons remain institutionalised…”

45. The Board made a further Limited Guardianship Order dated 10 March 1997 in the similar terms to its 1996 order, continuing the guardianship of the Public Guardian with the same limited functions and subject to the same standard conditions.

46. The hearing was adjourned to 3 June 1997, when a further hearing was held at Kanangra. In its reasons, the Board said (Exhibit D38 - 42):

“All present at the hearing expressed their strong view that Ms Darcy should be returned to Port Macquarie as soon as possible. As was mentioned at the last hearing, the Department of Community Services has refused to accept Ms Darcy back in Port Macquarie because of a perceived lack of resources to meet her needs. The Ageing and Disability Department has declined to provide extra funding for this purpose.

…Ms Leanne Durrington and Ms Yvonne Cooper from the Department of Community Services and Mr Graeme Smith of the Ageing and Disability Department made themselves available to give evidence by telephone.

Ms Durrington confirmed that her Department does not have the capacity to support Ms Darcy in the community and that funding submissions to the Department of Ageing and Disability had been unsuccessful…

Mr Smith… stated that all recurrent funds are committed and expressed his unwillingness to advise the minister that one-off funding should be made available… he was clearly of the view that there was simply no extra money to be found…”

47. The Board confirmed its previous findings in relation to the plaintiff’s disability and incapacity and renewed its orders for a further 12 months, including a further Limited Guardianship Order dated 3 June 1997 in similar terms to its 1996 order, continuing the guardianship of the Public Guardian with the same limited functions and subject to the same standard conditions (Exhibit D36 - 37).

48. The Public Guardian continued to agitate for funding throughout the next 12 months to enable Ms Darcy to leave Kanangra for more appropriate accommodation.

49. Ms Davidson from the OPG, who took over responsibility for the plaintiff after Mr Conna, wrote to DoCS on 16 March 2008 (Exhibit D50 - 52):

“Thankyou for your letter dated 17th February, 1998 advising the Public Guardian that Ms Darcy was not successful in her application for the vacancy at Sherwood Group Home…

Ms Darcy has been accommodated in Kanangra, against her will, since June 1996…

This latest rejection of Ms Darcy by Port Macquarie DCS is her failure to secure a vacancy in the Sherwood Group Home, the reasons given are based on need, compatibility with current consumers and service provision of the group home. Ms Darcy’s needs cannot be questioned she is held in a major institution against her will, without permission or consent since 22.8.96…

The Public Guardian after this last unsuccessful application for Ms Darcy to regain a placement in Port Macquarie does not accept Port Macquarie’s DCS explanation that Ms Darcy has not returned to Port Macquarie due to funding, and now requests DCS to follow DCS Policy and develop a concrete, action structured, written plan for Ms Darcy to return to the community within a 12 week time frame. The Public Guardian requests that the Director General be advised and the matter be referred to the Commissioner for Community Services…”

50. Ms Learne Durrington, the DoCS Area Manager, Mid North Coast Area, sent a 5 page reply dated 3 April 1998 (Exhibit 3.37 - 41):

“I refer to your correspondence dated 16 March 1998 in regards to Ms Joanne Darcy’s continued placement in Kanangra. I welcome this opportunity to clarify issues raised in regards to this matter…

…the central issue is provision of financial resources necessary to meet Ms Darcy’s support needs. Applications have been forwarded to the Department of Ageing and Disability (ADD) identifying the critical need of Ms Darcy for an accommodation support package. To date these have been unsuccessful.

It is not reasonable to presume that arguably the poorest disability resourced DCS Area within the State has the capacity to meet Ms Darcy’s accommodation support needs within its existing consumer committed financial base…”

51. In a Memorandum dated 9 June 1998 Ms Durrington recorded the following (D 62):

“Please find attached Schedule in regards to financial expenditure as requested.

Also note that Joanne Darcy, consumer from Port Macquarie has been included in Schedule although her support costs are currently met through Kanangra. Ms Darcy’s continued inappropriate placement (for in excess of two years) is directly resultant from lack of funding for an individual accommodation package from Ageing and Disability Department.

Significant concerns over Ms Darcy’s welfare are shared by this Area, Kanangra and the Office of the Public Guardian…”

52. Ms Davidson prepared a report for the guardianship review scheduled for June 1998 (D 67 - 69), in which she noted:

“Ms Darcy continues to reside at Kanangra without the consent of the Public Guardian, against her and her families wishes and contrary to the recommendations of the Unit’s Intern Psychologist as per her report…

Ms Darcy currently resides in Unit 2… Over the last twelve months the Public Guardian has communicated with Port Macquarie DCS to seek accommodation for Ms Darcy in Port Macquarie…

The Public Guardian believes that Ms Darcy’s needs are not being met by her continued institutionalisation… The Public Guardian recommends that the current functions be renewed for a further twelve months.”

53. The Guardianship Tribunal held a hearing at Kanangra on 15 June 1998 to review its previous order, when it found that the plaintiff was still in need of a guardian. It therefore renewed its limited guardianship order for a period of three months, in similar terms. It went on to recommend that an exit plan be prepared and funding be secured to support Ms Darcy in accommodation at Port Macquarie (Exhibit 71 - 72). In its reasons, the Board said (Exhibit D73 - 76):

“The report from the Public Guardian caused deep concern to the Tribunal. It identifies obvious and necessary action which must be taken in relation to finding appropriate accommodation for Ms Joanne Darcy…

It was heartening for the Tribunal to see that the Department of Community Services had appointed a Senior Practitioner, to review Ms Darcy’s placement. Ms Narelle Henry was able to advise the Tribunal that the Department does have a commitment to finding a place for Ms Darcy in the Port Macquarie region. She said the fundamental issue was one of resources; bearing in mind that Ms Darcy will require 24 hour support on a one to one basis this service was not currently able to be provided by the Department. She said that she had recently put a support package to the Ageing and Disability Services but had yet to receive any response…”

54. The Guardianship Tribunal noted the ongoing need for advocacy on the part of the Public Guardian and limited its orders to a three-month period to allow the issues to be considered by the DoCS and the Ageing and Disability Department, and for a timetable to be established for an exit plan for the plaintiff from Kanangra. It accepted the view expressed by the Public Guardian that:

“Ms Darcy is one of the most misplaced people you could meet.”

55. Further correspondence passed between the OPG and Docs (Exhibit D77 - 79). An exit plan was developed (exhibit D83 - 86), but the necessary funding remained unavailable. In a letter dated 28 August 1998, Ms Davidson wrote (Exhibit D80 - 81):

“The Public Guardian has now referred Ms Darcy’s case to the Commissioner for investigation (the Commissioner for Community Services).

The Public Guardian was advised…to contact the Intellectual Disability Rights Service to advocate on Ms Darcy’s behalf. This Service has now been contacted and legal representation is being put in place for Ms Darcy to secure her right for supported accommodation in Port Macquarie…”

56. The Guardianship Tribunal then held a further hearing at Kanangra on 29 September 1998 to review its previous order, when it found that the plaintiff was still in need of a guardian. It therefore renewed and varied its limited guardianship order for a period of four months to February 1999, in the similar terms as previously, except that Standard Condition 6(b), relating to restraint and confinement, was deleted (Exhibit D99 - 100). In its reasons, the Board said (Exhibit D101 - 104):

“The Public Guardian advised that the Department of Community Services had applied to the Ageing and Disability Department for recurrent funding in the magnitude of $199,000 per annum to provide support for Joanne to resume living in the community in a Department of Housing flat. This package was not funded by ADD and The Public Guardian has since been discussing with staff of the Department of Community Services, a second option which would involve a stepped exit whereby Joanne would move first to Newcastle and then to Port Macquarie. The Public Guardian advised that the Mid North Coast region of the Department of Community Services is currently refusing to accept Joanne to return to the port Macquarie district as the Department is currently overspent in its budget…

The Public Guardian advised that they were seeking a renewal of the current order in the same terms for a reasonably short period in order to maintain the momentum around executing an exit plan for Ms Darcy…

The Tribunal was advised that the Department of Community Services, Mid North Coast, does currently accommodate several people beyond its budget allocation and it appears Ms Darcy is being treated differently from several other clients of the Department in this regard.…all agreed that Ms Joanne Darcy is inappropriately placed at the Kanangra Centre and that she needs to return to live in the community as a matter of priority.”

57. The next significant development in the funding saga occurred in December 1998 when Ms Faye Lo Po MP wrote to the plaintiff. Ms Lo Po was the Minister for Community Services, the Minister for Ageing, the Minister for Disability Services and the Minister for Women. The letter read (D122):

“I am writing to you in regard to your accommodation and support needs.

The NSW Government has provided the Ageing and Disability Department (ADD) with the new recurrent funds to assist children and adults with disabilities who have been identified as urgently requiring accommodation and support services. The Department of Community Services (DOCS) has now assessed and prioritised the needs of the identified individuals and has presented ADD with the names of the individuals prioritised through this process and the different accommodation and support models recommended.

I am very pleased to inform you that I have now approved recurrent funding to assist in the provision of appropriate accommodation and support services to you.

The recurrent funds will be allocated to the most appropriate selected service provider(s). ADD has now called for expressions of interest from service providers for the accommodation and support models recommended by DoCS…”

58. One might be forgiven for assuming that the funding impasse was now resolved and that it was only a matter of time before the plaintiff was accommodated in a more suitable environment. The guardian thought so.

59. The Guardianship Tribunal reconvened four months later, at Kanangra, on 1 February 1999, when it reviewed its previous order. It found that the plaintiff was still in need of a guardian and therefore renewed and varied its limited guardianship order, in similar terms, with Standard Condition 6(b), relating to restraint and confinement, being deleted (Exhibit D123 - 124). In its reasons, the Board said (Exhibit D125 - 127):

“The Tribunal… notes the Minister for Community Services informed the Public Guardian the recurrent funding was available to provide Ms Darcy with supported accommodation. Expressions of interest have been sought from service providers however it is clear that Ms Darcy will at last be provided with supported accommodation. It was reported that Joanne will originally be located within the Newcastle area but at some stage then moved to Port Macquarie. The issue that was raised with the Tribunal was that Port Macquarie is not as well serviced as the Newcastle area and it was considered that whilst Joanne was enjoying Post School Options that perhaps a stage transfer could be arranged…”

60. Thus, the Tribunal accepted the need for the plaintiff to be transitioned back into the community, initially in the Newcastle area, notwithstanding the preference of the plaintiff and her family that she return to the Port Macquarie area.

61. But the transition was delayed when the plan to move the plaintiff to the Newcastle area failed, as Ms Davidson explained to the ADD in a letter dated 10 June 1999 (Exhibit D129):

“The Public Guardian requests that the Ageing and Disability Department allocate the approved recurrent funding for Ms Joanne Darcy to Port Macquarie DCS as a matter of great urgency.

In the recent negotiations that occurred to allocate this funding the Samaritan Foundation was selected as the most appropriate service provider. The Samaritans have subsequently withdrawn their expression of interest…

Extensive planning has occurred with DCS Hunter for Ms Darcy to move into the community in Newcastle since she was allocated this recurrent funding in December 1998. DCS Port Macquarie had negotiated with DCS Hunter to provide this service due to their lack of resources. This planning has been put on hold since the advice that the Samaritans were to be allocated this funding. Now that the Samaritans are not taking up this package the Public Guardian is keen for this process to continue…”

62. The funding impasse re-emerged. A further 9 months went by and the plaintiff’s transition back into the community had still not occurred. On 3 March 2000 the Public Guardian wrote directly to the Minister in an attempt to resolve the matter (Exhibit D140):

“The Public Guardian notes the Minister approved recurrent funding for accommodation and support for Ms Darcy as early as 15 December 1998. (Letter of notification to Ms Darcy is attached). However Ms Darcy still remains a resident at the Kanangra Centre against her wishes and without the consent of the Public Guardian.

The Public Guardian understands the initial funding package to implement this approval has been modified three times by the Department of Community Services support team on the Mid North Coast, apparently due to the cost of the proposals. The Public Guardian has been informed there is a current submission to support Ms Darcy within your office awaiting approval…”

63. It seems there was no reply from the Minister and on 11 May 2000 the Commissioner for Community Services, Mr Robert Fitzgerald AM wrote to the Minister (Exhibit D143):

“I am writing to advise you that a review assessment of Ms Joanne Darcy has been finalised… Although funding was approved in December 1998 for Ms Darcy’s accommodation and support there is still no indication of when her community placement will commence… the delay in the relocation of Ms Darcy to a community placement is unacceptable.

We understand that the Office of the Public Guardian has also raised Ms Darcy’s case with your office. The Commission is requesting that this matter be given urgent consideration….”

64. If there was response from the Minister, it is not in the Exhibit. It appears, however, that the efforts to secure sufficient funding for a Port Macquarie community placement for the plaintiff in suitable accommodation, with appropriate support, were ongoing. But there were more obstacles and delays (See Exhibit 3.54).

65. The Guardianship Tribunal held a further hearing at Newcastle on 5 February 2001 to review its previous order, when it found that the plaintiff was still in need of a guardian. It therefore renewed its limited guardianship order for a further 12 months, in similar terms (Exhibit D152 - 153). In its reasons, the Board said (Exhibit D154 - 156):

“Ms Malloy, for the Public Guardian, stated that Joanne has been going to Port Macquarie, that funding has been allocated, that Joanne needs a 24 hour service and that there has been an ongoing delay, despite all their best advocacy, with the Department of Community Services. When Joanne goes to Port Macquarie she stays with her mother and she is looking forward to moving...

The Tribunal spoke by telephone with Brett Rogers, Project Officer with the Department of Community Services, as to any delay and a time frame for the future. It was established that funding was made available but it was somewhat short. There was an application to use the money for the provision of services to Joanne while she was still in Morisset (Kanangra) to be rolled over. There was also compatibility studies being undertaken with other prospective co-residents. Mr Rogers advised they were ready to purchase a property, however the vendor had withdrawn from the sale. Mr Rogers states he is concerned so that all of the services Joanne needs to be provided with to ensure the placement does not fail will be in place, that she will need 24 hour support and that there will need to be additional people within the premises to be cost effective, and to provide the level of service necessary. He states that the house may not be in Port Macquarie itself; it may be in one of the outlying villages, but from which access to Port Macquarie would be readily available.

The Tribunal asked Mr Rogers would all of the accommodation and other issues be resolved within twelve months. Mr Rogers stated “yes”…”

66. Unfortunately that expectation was forlorn. Another 11 months passed and the plaintiff was still resident at Kanangra. It appears that the vendor of the property identified for purchase to accommodate the plaintiff and others increased the asking price by $100,000, taking it out of the reach of the Department. A further application for funding was therefore necessitated, which was not approved until 31 January 2002. Steps were then taken to find an alternative (T 146).

67. The Guardianship Tribunal met again at Kanangra on 5 March 2002 to review its previous order, when it noted these developments (Exhibit D167 - 170), but found the plaintiff was still in need of a guardian. It therefore renewed its limited guardianship order in similar terms (Exhibit D165 - 166). It was anticipated that a further short order of only 12 months was required, the expectation being that the plaintiff would be transitioned into the community placement within that period.

The plaintiff’s subsequent accommodation and circumstances

68. The placement of the plaintiff into the community was finally effected in December 2002 when she was transferred from Kanangra into a group home at King Creek Road, Wauchope. The house was specially purchased with the plaintiff in mind and is located at a 25-minute drive away from her mother’s place. The house was the first of its kind in that area and involved a significant capital outlay (T 146). The buildings were altered to suit the residents’ needs. The location was deliberate, in that the group home was some distance from Port Macquarie and hotels, and without any close neighbours. The other residents were handpicked from a statewide search for compatible persons with similar requirements and interests to the plaintiff. The right staff also had to be located and trained: carers with experience in working with people with complex behaviours (T 147).

69. The 7½ years since the plaintiff left Kanangra have not been without their difficulties. Her complex behaviour pattern persists. Episodes of unruly and resistant conduct still occur. The need for 24-hour supervision remains, there rules are required as to where she can go and when, and she requires to be driven to and collected from other locations, such as Port Macquarie. There have been more assaults and court appearances, including the imposition of a good behaviour bond (see Exhibit 4). Mark Marky re-emerged and lived with the plaintiff for a time and there were incidents of violence involving him.

70. Initially the plaintiff was located in the group house with the other residents and carers. Ultimately, however, it became evident that she was unable to satisfactorily co-exist with the other residents. It was contemplated that the plaintiff would be moved again, but after representations by the mother and grandmother, and the re-involvement of the Public Guardian, an annexe in the form of a granny-flat with a self-contained garden was constructed, at further expense to DoCS, for the plaintiff’s sole use, in which she now resides alone.

71. It is clear that King Creek Road is a better location and environment for her accommodation. In her own words:

“Now my life is much better. I live at King Creek Road and it is much better. The staff are more comfortable and they help me by making me feel happy. They talk to me. It was not like that at Kanangra because they would not talk to me because they did not like me. The staff at King Creek Road listen to you and ask if you need a hand and if you want something [80].

At King Creek Road I have more freedom. I go for bushwalks. I have my own garden, with strawberries, lettuce and tomatoes… I get to go and do garden and wash the van on the weekend (the van we drive around in). I like doing that. I get to ring up mum. I did not get to do that much at Kanangra. I ring my mum every Thursday night, unless I cannot and then I do it every Saturday [81].

I live in a house where I have my own room, my own bathroom and my own kitchen… I have my own stereo and TV. I cook and clean. I have learned how to have fun. I have a dog called Jacky…[82] - [83].”

The plaintiff’s case

72. The claim made on the plaintiff’s behalf is for the intentional tort of false imprisonment. There is no claim in negligence or for misfeasance in public office, nor is any a judicial review sought of administrative action: see State of South Australia v Lampard-Trevorrow [2010] SASC 56. Nor is there any claim for negligent trespass, the allegation being that the DoCS officers acted deliberately and intentionally, cognisant of the fact that their actions were directed towards the plaintiff, and intended to bring about her detention. The primary contention is that the plaintiff was wrongfully imprisoned at Kanangra from 20 June 1996 to 18 December 2002. In the alternative, it is alleged that she was wrongfully imprisoned for some part of that period (see also T 227 - 228).

73. The case for the plaintiff, put simply, is that her accommodation by DoCS at Kanangra constituted an intentional total restraint of her movement for which there was no lawful justification. It is alleged that her resolve to remain at Kanangra was a coercive consequence of deliberate and intentional action by DoCS officers intended to bring about such a total restraint, but for which she would not have yielded to the restraint. It was submitted that the restraint related to an identifiable location, the only means of escape from which were unreasonable in all the circumstances; and that to be actionable, the restraint need not have been the result of the application of physical force, it being sufficient that the plaintiff was induced to submit to the control of DoCS in the understanding that she must submit or she would be compelled to submit. It is irrelevant that this plaintiff may not in fact have apprehended that she was being imprisoned, the conduct of DoCS officers having been sufficient to induce submission by a reasonable person in any event, and awareness of the imprisonment not being an essential ingredient of the tort. Similarly, it did not matter that by reason of her intellectual disability the plaintiff may have lacked the mental capacity, permanently or temporarily, to choose to resist the restraint (see also T 234 - 235).

74. Accordingly, it was submitted, it was not open to the defendant to take the position that the Public Guardian in some fashion reflected the will of the plaintiff, such that the guardian’s consent to her residence at Kanangra meant it cannot have been an unlawful imprisonment (see also T 229.46). On the contrary, it was the position taken on the plaintiff’s behalf that her detention at Kanangra was imposed without the consent of her guardian, the Public Guardian, one of whose functions pursuant to the successive Limited Guardianship Orders was to determine where the plaintiff may reside. That function did not include a power to have the plaintiff detained at such a location. Furthermore, the wording of Standard Condition 6(b), as it appeared in the Limited Guardianship Orders up till 29 September 1998, prevented the guardian from introducing or authorising any form of restraint or confinement of the plaintiff. In fact, the Public Guardian consistently and persistently made known its opposition to the plaintiff being accommodated at Kanangra, apart from one short period between 23 June and 17 August 1998 in the expectation that the plaintiff was shortly to be transitioned into a community placement.

75. It was further submitted that even if the conduct of the responsible officers of DoCS was reasonable, and they acted in a bona fide way, that does not excuse the detention, the mere interference with a person’s liberty constituting the infringement: Trobridge v Hardy (1955) 94 CLR 147 at 152 (see also T 230.26).

76. To establish the fact of intentional total restraint, Counsel for the plaintiff point to her having been accommodated within Unit 2 or Unit 3, but concede there were periods when she enjoyed greater liberty to move around the grounds of Kanangra. But movement between buildings within the grounds, it was submitted, is not sufficient liberty to negate unlawful detention within those grounds. Indeed it is the case put on her behalf that to the extent she went shopping or on holidays, or to her mothers, she remained imprisoned (T 228.3). Her presence at Kanangra was well known to the relevant officers at DoCS. She was transported there by DoCS; it was DoCS officers who maintained the premise and supervised the locked doors and gates, and the like, and DoCS officers who made clear to her that she must stay there and return there after excursions and trips (T 231.25 - 50). Realistically, there was no escape, Kanangra being at the end of an isolated 4.5 kilometre road, surrounded by a State forest and a lake (T 237).

77. The written submissions go on to point to a series of specific key facts said to be suggestive of a total restraint of the plaintiff against her will, and without the consent of her guardian [34]:

(a) Joanne’s evidence that she was told that she had to go to Kanangra and that she had to stay at Kanangra. She was told this by Alison Bates, her case worker.

(b) Unit 2 in which Joanne spent much of her time at Kanangra was surrounded by a fence. Joanne could leave the fenced area to access other parts of the Kanangra complex but only with and by permission of the staff.

(c) Staff made it clear that they did not consider Joanne was free to leave Kanangra and had she attempted to walk out the front gate and leave they would have taken whatever steps were necessary to bring her back.

(d) The documentation produced, including progress notes recording the minor incidents during her stay, indicate that her life was fully regulated and every movement by her to and from a cottage or any

(e) On all excursions from the Kanangra unit Joanne was supervised. When she visited her mother’s she was escorted to the station and the train guard was informed that she was on the train. She was collected by her mother when the train arrived and delivered back to the train by her mother and collected again at Morisset station by officers from Kanangra. Progress notes reveal consternation on the part of staff that on one particular excursion she was left unsupervised on a work experience excursion for 20 minutes.

(f) Joanne at all times believed that she was obliged to remain in Kanangra and if on an excursion to return to Kanangra under the supervision of staff.

(g) In her six years at Kanangra Joanne was always accommodated in… the grounds of Kanangra to which she has access with permission. The grounds are isolated being demarcated by fences, bordered on one side by Lake Macquarie, and on other sides by State forest.

78. In addition to these matters, during oral submissions Senior Counsel for the plaintiff directed my attention to a further series of matters set out in the documentary evidence. I have referred to most of these in the factual narratives above. But some of the matters stressed include (in summarised form):

· Joanne was required to be supervised at all times, including while away from Kanangra on work experience (T 245.15).

· If the plaintiff had attempted to leave the complex and walk out, she would have been brought back (T 246.42).

· If a resident expressed a desire to leave Kanangra, it was necessary that this first be discussed with staff, and on occasions with the Public Guardian (T 247.13).

· Other residents told the plaintiff she would be brought back if she tried to leave (T 248).

79. The case advanced for the plaintiff is that intentional total restraint was established on the facts, and that the defendant failed to establish any lawful justification for that restraint.

80. Central to the case sought to be made for the plaintiff is the notion that there was absent any form of authority for accommodating the plaintiff at Kanangra: Marshall v Watson (1972) 124 CLR 60 at 643. The executive is not authorised to detain people without appropriate authority, even if it is in their best interests to do so (T 248.38 - 259.13). It was submitted that such authority is not to be found in the evidence: it is not to be found in the orders of the Magistrate; it does not arise through any consent given by the Public Guardian; nor does it arise under the provisions of the Mental Health Act 1990.

81. So far as the orders made by the Magistrate are concerned, it is the plaintiff’s contention that these cannot be relied upon to lawfully justify the plaintiff’s period of residence at Kanangra. It was submitted that the first order, properly construed, merely required that the plaintiff “attend at Kanangra Centre”. The references to an authorised two or three month period of accommodation at Kanangra following that first order had nothing to do with the court order. Rather it reflects some administrative expenditure approval within DoCS (see also T 241.9 and T 253.5). The treatment of the plaintiff by DoCS officers was far in excess of what was justified by that order (T 240.24). Nor did the second order of the Magistrate purport to authorise any detention of the plaintiff at Kanangra.

82. So far as the Public Guardian is concerned, not only did the guardian not consent to the plaintiff being accommodated at Kanangra, the Limited Guardianship Orders did not empower the guardian to consent to the plaintiff’s detention. Standard Condition 6(b) in the early orders expressly prohibits the notion of detention. It is submitted that on its proper construction, this condition cannot be construed as having the narrow construction for which the defendant contends, that the reference to any restraint or confinement of the plaintiff means physical restraint or close confinement, such as in a cell. In any event, Units 2 and 3 at Kanangra were in fact “lock-ups”.

83. So far as the Mental Health Act 1990 is concerned, the defendant made no application for authority to accommodate the plaintiff at Kanangra, notwithstanding “an elaborate statutory regime” for dealing with people suffering from mental disorders [38]:

“No order was ever made under the Mental Health Act 1990 in regard to the plaintiff, nor did any of the people at DoCS who considered the plaintiff’s case, purport to exercise any of the statutory powers conferred under the Mental Health Act 1990 in the six years that the plaintiff was at Kanangra.”

84. The case advanced for the plaintiff is that DoCS should have regularised its accommodation of the plaintiff at Kanangra:

“If they (DoCS) form the view, having assessed this woman, that she couldn't be moved back to the community, then it was beholden on them to make an appropriate application under the Mental Health Act for either an involuntary admission or some other form of compulsory treatment permitted under that Act or go back to the magistrate.” (T 244.12)

“Indeed I can sum it up this way: that our view is that what they did was to, in effect, ignore the legal status for what they were doing; and, if it was the case that she should have been kept there, there was a proper procedure that should have been followed.” (T 244.31)

85. The plaintiff’s final contentions concern the common law doctrine of necessity. It was submitted firstly that there is no scope for the operation of such a doctrine in New South Wales, because the Mental Health Act 1990 governs the detention of mentally disabled persons. Further:

“…even if it were to be found that there was some residual function for the common law doctrine of necessity to operate in supplementation to, or parallel with the provisions of the Mental Health Act 1990, the very nature of the doctrine, dependant as it is upon the prevention of imminent harm, could only apply so as to permit someone to be detained briefly in circumstances where it was not possible to invoke the provisions of the Act.” [60]

86. It was submitted, secondly, that the doctrine of necessity cannot apply in any event to the circumstances of the present case, because the principle only operates where there is an apprehension of an immediate danger of injury to the plaintiff or others:

“This isn’t an instance where someone detained Ms Darcy in an emergency in the street, when she was about to throw herself under a bus or seriously assault someone. The doctrine could have no possible application where she's already in the hands of officers of the executive, who apparently know all about the law. Mr Conna said that it was one of his functions to know about the legislation that covered people who could be subject of guardianship orders. It couldn't possible have any application to permit someone to be detained for six and a half years. It would be a stopgap until they could be brought before authorities under the Mental Health Act.” (T 266.25)

87. Finally, it was submitted that a defence based on the doctrine of necessity cannot be supported by budgetary considerations, in the absence of some explanation from the defendant as to why appropriate funding was not sooner made available for a more appropriate placement of the plaintiff than at Kanangra (T 270.11 - 273.4). The written submissions summarise the proposition as follows [61]:

“…in the present case it appears to be put on the basis that due to lack of funding it was not possible to accommodate the plaintiff in alternative accommodation to Kanangra, and that this gives rise to the application of the doctrine of necessity. This would be a surprising application of the principle which is directed at preventing immediate harm. There is, in any event, no objective evidence of the financial contingencies on which the defence is said to turn. None of the defendant’s witnesses have knowledge of the overall budgetary position of DoCS at the relevant period. Merely because officers of DoCS announced that they were not allocating any money to the plaintiff’s accommodation other than that revealed by the evidence, does not establish the relevant financial restraints. The doctrine of necessity can, in any event, never have been intended to authorise the executive to detain people on what is indeed not so much a necessity, as a balance of convenience.”

The defendant’s case

88. The defendant contends that none of the factors necessary to prove a total deprivation of the plaintiff’s liberty can be established from the evidence. It was submitted that to succeed in her claim for false imprisonment, the plaintiff was required to show:

· there was in fact a complete deprivation of, or restraint upon her liberty: R v Bournewood Community and Mental Health NHS Trust; ex parte L [1999] 1 AC 458.

· the deprivation of liberty was actual rather than potential, that, but for the defendant’s conduct, the plaintiff would not have yielded to the restraint and that her resolve to remain was a coercive consequence of the defendant’s acts: Myers Stores Ltd v Soo [1991] 2 VR 597 at 614.

· the defendant’s staff members deliberately and intentionally intended to bring about a total deprivation of the plaintiff’s liberty.

89. The essence of the defendant’s contention is that mere supervision, or the imposition of normal societal rules of behaviour, such as not entering another person’s bedroom without permission, or taking other people’s belongings without permission, will not satisfy the requirement for total deprivation of liberty. The restrictions that were placed upon her movements related to her safety and the privacy of other residents, and are no different from the current restrictions placed upon the plaintiff in her group home. It was submitted that the evidence contradicts any assertion of complete deprivation of liberty, and a series of facts are pointed to in support of the submission, to which I will come when I set out my findings.

90. In oral submissions, Senior Counsel submitted that it is not every restriction of someone’s ability to move that leads to it being imprisonment (T 280.37):

“So the question is not has Joanne Darcy at some stage been detained from time to time in a place she did not always like. The question is a question of whether there has been a complete deprivation or restraint upon her liberty. There has to be a complete loss of freedom, and for the reasons set out in the written submissions, we say that simply has not happened in this case; and Kanangra is not now, and was not then, a gaol.” (T 278.45)

91. Reliance was placed on the decision of the House of Lords in R v Bournewood Community and Mental Health NHS Trust; ex parte L [1999] 1 AC 458, and the following passage was said to reflect the present case (per Lord Nolan at 302):

“I am satisfied the respondent Trust and its medical staff behaved throughout not only in what they judged to be the best interests of Mr L, but in strict accordance with their common law duty of care and the common law principle of necessity.”

92. In Bournewood, the patient was taken to the hospital under sedation, and whilst there the health care professionals exercised effective power over him, such that he was regularly sedated to ensure he remained tractable, his carers were prevented from visiting, and he was kept under continuous observation (per Lord Steyn at 306). And the majority considered that the patient was nevertheless not imprisoned. In the present case the facts are that whenever the plaintiff’s family wanted her to leave, she was allowed to leave. Not only was she allowed to leave, she was encouraged to leave and she was assisted to leave by way of taking her to the train station; by way of putting her in cabs; by way of facilitating her taking her medication with her. (T 279.37) The care and supervision and limits placed on the plaintiff were attributable to her developmental disability and the duty of the defendant’s staff members while she was a resident to take care for her safety. The plaintiff’s witness Ms Tranter did not consider the restrictions placed on the plaintiff at Kanangra were unreasonable (T 91.6). And there was nothing to suggest that at any time she was more or less restrained than other residents at Kanangra.

93. The defendant next addressed the issue of the plaintiff’s will, and submitted that she never comprehended or understood the reasons why she was residing at Kanangra. Her mother said the plaintiff did not understand what Kanangra was and agreed with Dr Wurth that she had no understanding of the court process. As a result of her developmental disability and personality disorder the plaintiff was incapable of choosing the environment that was most suitable for her and as such her will is not a relevant consideration. It was submitted that in these circumstances it is unrealistic to suggest that because she did not like some of the restrictions placed upon her or the food or some of the other residents she was submitting to remaining there against her will sufficient to be falsely imprisoned.

94. It is the defendant’s contention that care and supervision of a person with an intellectual disability requiring 24-hour supervision is not false imprisonment, and that it is artificial to treat the placement of the plaintiff at Kanangra as a total restraint.

95. This plaintiff was likened to the child in the case of State of South Australia v Lampard-Trevorrow [2010] SASC 56:

“The plaintiff required and has always required 24 hour supervision and care for her and others safety. The rules and restrictions were attributable to the responsibility that DoCS had undertaken pursuant to the order of Magistrate Jackson to care for her and attributable to her developmental disability. There existed no other legal basis why DoCS was responsible for the plaintiff.” [30]

96. The distinction was drawn between the biological parents in Lampard-Trevorrow, who had not consented to the fostering of the child, and the plaintiff’s mother in the present case, who acknowledged and agreed she needed 24-hour care and supervision [26]. The mother believed that it was not an option to simply let the plaintiff leave and live unsupervised in the community and that there was otherwise a risk of the plaintiff being sent to prison. [34]. As for the guardian::

“…here the plaintiff had a substitute decision maker in the Public Guardian who despite any correspondence suggesting otherwise did explicitly by its actions and by implication agree to the plaintiff remaining in Kanangra [the status quo]. The Public Guardian’s will was not overborne and could not have been by any defendant coercion.” [31]

“The evidence shows that the Public Guardian did not believe Kanangra was the most suitable residence for the plaintiff and the Public Guardian had not arranged for the plaintiff to be accommodated in Kanangra. However this does not signify that the Public Guardian believed the plaintiff was being held against her will.” [32]

“One method of examining the Public Guardian’s agreement to the plaintiff remaining in Kanangra is to ask whether the Public Guardian would have consented to the plaintiff’s removal from Kanangra in the absence of appropriate accommodation that provided for her complex care needs. The evidence is undoubtedly that the Public Guardian would not have agreed to the plaintiff leaving.” [33]

97. It was further submitted that the guardian always had the legal power to physically remove the plaintiff from Kanangra and as Ms Davidson said, she had done this with other clients under her guardianship. However, she believed it was a critical prerequisite that the plaintiff be provided with appropriately supported accommodation. [35] Importantly, the Public Guardian had no power to order that any person (including DoCS) care for or provide accommodation for the plaintiff. It could, however, have ordered that the plaintiff be removed from Kanangra:

“The plaintiff regularly came before the Guardianship Board and Guardianship Tribunal. The Board/Tribunal were aware where the plaintiff resided… The Board/Tribunal had power pursuant to s. 28 Guardianship Act 1987 to give directions regarding the exercise of the guardian’s functions and could have at any time ordered that the plaintiff no longer reside at Kanangra. However, the Board/Tribunal had no power to order any person [including DoCS] to provide accommodation or care for the plaintiff.” [36]

98. The defendant’s written submissions next address the plaintiff’s assertion that in 1996 the principles governing the detention of mentally disabled people in hospitals were governed by the Mental Health Act 1990. It is submitted that this is a misunderstanding of the Act, and that there is no evidence at all that the plaintiff was suffering from a mental illness such as to bring her within the purview of the Act. I do not propose to paraphrase the detailed argument set out at paragraphs [42] - [55] because, ultimately, in my view, the plaintiff’s contentions concerning the Mental Health Act 1990 have no merit in any event.

99. Finally, in relation to liability, the defendant’s written submissions address the doctrine of necessity [56] - [65]:

“There is no obligation [statutory or otherwise] that compels the defendant to provide the plaintiff with accommodation or services. The ultimate aim of DoCS and Kanangra staff members and the Public Guardian was always to find accommodation for the plaintiff in a group home receiving 24 hour support. Group homes are limited and the demand is high. The plaintiff’s needs required sufficient recurrent funding to be approved by the Minister of the Department of Aging and Disability.

The plaintiff’s disability and behavioural problems allowed her to be recognised as a person within the “Target Group” [section 5] of the Disability Services Act 1993. As such the Minister for Aging and Disability Services could provide recurrent funding. The Act however, does not create an enforceable right to funding. There are limited funds and the Minister is required to prioritise funding.

The first submission for capital and recurrent funding was made on behalf of the plaintiff in April 1996. ADD rejected the submission that due to the lack of availability of recurrent funding it could not provide for Ms Darcy’s long term support needs (Letter ADD to PG dated 3 March 1997). Applications were renewed thereafter. In February 1998 DoCS made an unsuccessful application for the plaintiff to fill a vacancy in a community home (Sherwood Group Home). Ultimately land was purchased at Wauchope and a group home built where the plaintiff now resides.

The sections of the Crimes Act 1900 [ss 61, 58 and 195] under which the plaintiff was charged are serious and carry the potential of penal servitude ranging from two to five years.

If the plaintiff was imprisoned during her stay at Kanangra the defendant says that the deprivation of her liberty amounted to no more than taking reasonable steps to protect her from harm:

▪ to prevent the immediate threat of her ending up in prison in an environment which could not possibly have met her needs her needs; (T 33.9 - 16)

▪ to prevent the immediate threat of her being homeless and living on the streets;

This was a difficult choice between the competing interests of the plaintiff’s liberty and prison and/or homelessness. The plaintiff could only be released with the consent of the Public Guardian and this could not happen until appropriately supported accommodation was found.

The choice did not arise directly from a lack of funds because the defendant at no time has ever been under a legally enforceable obligation to provide the plaintiff with accommodation.”

Imprisonment

100. For the plaintiff’s claim to succeed it must be proved on her behalf that she was imprisoned; that is, there was an intentional total restraint of her movement, or a complete deprivation of her liberty. This is a question of fact.

101. I find the following facts:

1. At all relevant times the plaintiff suffered from an intellectual disability, a borderline personality disorder, and epilepsy. She was not capable of managing her affairs and was partially incapable of managing her own person. As a result she was prone to unruly behaviour and episodes involving violence. She had complex care needs including requirements for extensive support and supervision.

2. In September 1995 the plaintiff was involved in several episodes during which she upset other people. This involved her going into the homes of neighbours, often uninvited, and at times she was verbally abusive to them. She was also involved in episodes with community workers when she would block the door to prevent them leaving. A number of further episodes occurred after Christmas 1995 and in early 2006, including assaulting a staff member at a group home and biting a police officer.

3. As a result of these episodes she was charged with various criminal offences, which brought her to the attention of the criminal justice system. On 19 June 1996 the plaintiff assaulted her flatmate, and attempted to assault a carer, then barricaded herself in the flat she had moved into that day. The police were called, and Ms Darcy was taken into custody. After spending the night in jail, the plaintiff went before the Local Court on 20 June 1996.

4. After discussion with the plaintiff’s legal representative, carers and community workers, the Magistrate indicated he would refuse to release the plaintiff back into the community, citing her welfare, the safety of the community, and the safety of her support staff. He indicated a secure placement was necessary. Accordingly, he dismissed the charge and discharged the plaintiff pursuant to s 32 of the Mental Health (Criminal Procedure) Act 1990 on the condition that she attend at Kanangra.

5. In the meantime, the other remaining charges against the plaintiff were adjourned until 24 December 2010.

6. The plaintiff was transported to Kanangra by a DoCS officer. On the way she was taken to visit her mother. I am not satisfied that Ms Bate told the mother the Magistrate sent the plaintiff to Kanangra merely for an assessment. I find, rather, that he did so as an interim measure prior to the hearing of the other charges, to ensure a secure placement for her in lieu of remanding her in Mulawa Prison.

7. There was no other place at which the plaintiff could have been suitably accommodated.

8. Upon arrival at Kanangra the plaintiff was assessed in the usual way in Unit 3 for 10 days. The assessment was for the usual time, after which she was transferred to Unit 2. Thereafter she resided in Unit 2 apart from a brief, but unsuccessful attempt to transition her into the Koala cottage in 1997. That trial failed, principally due to the plaintiff’s manipulative, abusive and intrusive behaviour and her incompatibility with the other residents and her negative impact on them generally, not as a result of any punishment or deliberate attempt to restrict her freedom of movement.

9. The selection of appropriate units for the accommodation of residents at Kanangra depended upon whether there was a vacancy, its suitability for the resident, compatibility with other residents, and the level of ability of the resident to keep themself safe.

10. During her stay at Kanangra restrictions were imposed on where the plaintiff could go and when. I am not satisfied, however, that her life was totally regulated such that “every movement by her to and from a cottage or any activity in which she engaged was with the consent of and by the authority of the staff at the Kanangra unit”.

11. The plaintiff in fact enjoyed a high level of free ability to move around the complex. She was a frequent visitor to other units, in particular Unit 10, where she frequently visited Mr Troutman, with whom she formed a relationship. This involved sexual intimacy, the only limitation being that privacy was to be maintained.

12. The restraints and limitations that were imposed on the plaintiff during her time at Kanangra were reasonable and appropriate, made necessary by reason of her propensity for violence and her complex needs resulting from her conditions. These restraints never exceeded that of other residents with similar problems and needs.

13. The plaintiff also enjoyed considerable opportunity to venture beyond the Kanangra complex on a regular basis, to play sport, to shop, and to work. I am not satisfied that she was supervised for the duration of these outings. She in fact experienced considerable independence of movement and activity on these occasions.

14. The plaintiff frequently attended the Samaritans, unaccompanied by the defendant’s staff members, where she could choose to and did participate in many programs and excursions such as cooking, walking, art and craft, swimming, ten-pin bowling, restaurants, clubs, shopping movies, and the library. She went on holidays to the snow and to the beach without the defendant’s staff ever being present.

15. The plaintiff travelled alone to visit her mother in Port Macquarie for extended periods of time. This involved her travelling alone and unsupervised by taxi, bus and train. The defendant’s staff members never refused a request from the plaintiff’s mother for the plaintiff to visit her or for the plaintiff’s mother to visit at Kanangra. The defendant’s staff members imposed no rules on what the plaintiff could or could not do while at her mother’s home. The plaintiff’s mother imposed rules during the visits such as requiring the plaintiff to tell her where she was going, telling her when she would return, respecting others privacy. The plaintiff never refused to return and no coercion was used to ensure her return.

16. The plaintiff never fully comprehended or understood the reasons why she was residing at Kanangra. She did not fully appreciate the implications of the Magistrate’s orders. She did, however, understand that she required supervision and care, and that she was limited in her capacity to lead an independent existence. As a result of her developmental disability and personality disorder the plaintiff was and is incapable of choosing the environment that is most suitable for her and as such her will is not a relevant consideration.

17. In 1996 and for the period of the plaintiff’s stay at Kanangra she was subject to guardianship orders made under the Guardianship Act 1987. Her property and affairs were subject to management under the Protected Estates Act 1983. Limited Guardianship Orders were first made on 28 March 1996, prior to the plaintiff going to Kanangra. These Orders were renewed successively until after the plaintiff left Kanangra and was transitioned into her community placement at King Creek Road. The Orders were limited in that the functions the guardian was given were restricted. In particular, however, the guardian was to determine where the plaintiff may reside. The guardian never determined that the plaintiff may not reside at Kanangra.

18. The orders were initially subject to a standard condition that the guardian may not introduce or authorise any form of restraint or confinement of the plaintiff. This condition was removed after the Orders were renewed on 29 September 1998. I am not satisfied, however, that any form of restraint or confinement of the plaintiff was introduced in the sense intended, that is, physical restraint or close confinement, such as in a cell.

19. The Public Guardian regarded Kanangra as the least favoured option for the accommodation of the plaintiff and continued throughout to express its consistent opposition to her remaining there. But it was accepted that in reality, there was no other place where the plaintiff could have been placed.

20. As Ms Davidson said, as unfortunate as it may be, whilst Kanangra was not considered appropriate, desirable or in the plaintiff’s best interests to be, as a matter of necessity she was required to be there so that her welfare and safety could be ensured and her daily needs met. The Public Guardian would not have agreed to the plaintiff leaving Kanangra in the absence of a suitable alternative with an appropriate level of care and supervision.

21. In reality, the Public Guardian was limited to an advocacy role. It was a substitute decision-maker, not a service provider. The Public Guardian complained, but never alleged any breach of the Orders or the conditions attaching to them.

22. The plaintiff’s mother similarly believed that it wasn’t an option to simply let the plaintiff leave and live unsupervised in the community. Ms Tranter did not consider Kanangra suitable because of the plaintiff’s youth and lack of access to her peers, not because she was imprisoned.

23. The defendant was not under any legal obligation that compelled it to provide the plaintiff with accommodation or services. The plaintiff had no enforceable right to accommodation at the expense of the defendant, let alone any particular level or style of accommodation, or funding for the purpose.

24. The defendant had limited funds that were required to be prioritised. Funding for the plaintiff’s accommodation in a group house in the Port Macquarie region was not available prior to the actual allocation. I am satisfied that the inability of the defendant to provide the necessary funding was not a matter of convenience, but was a matter of necessity. The evidence clearly establishes that the defendant never had the necessary budgetary allocation to accommodate the plaintiff in the community, and was at all times dependent on the Department of Ageing and Disability to allocate a sufficient level of recurrent funding for that purpose. Once that funding was made available, the defendant’s officers acted with appropriate speed, given the various obstacles that arose and problems that needed to be overcome, to secure the house in which the plaintiff was ultimately accommodated and to locate and train the carers.

25. The defendant, through its officers, at all times acted reasonably in the best interests of the plaintiff having regard to her complex needs. At Kings Creek Road the plaintiff remains subject to restrictions and limitations, albeit probably to a lesser degree. I accept the submission that the only real difference is that he plaintiff is now closer to her mother and she finds it easier to visit. She remains under constant, 24-hour supervision and there would be alarm if she went out and did not come back (T 288.44).

26. The plaintiff’s propensity for violence brought her before the courts and would have continued to do so ut for DoCS accommodating her, firstly at Kanangra, and subsequently at King creek Road, with 24-hour supervision. That has never changed. Indeed, at King Creek Road there have been further problems and incidents of violence, as outlined at [68] - [70] above.

102. Having regard to these facts, I am not satisfied that there was an intentional total restraint of the plaintiff’s movement, or a complete deprivation of her liberty. I find, therefore, that she was not imprisoned at Kanangra.

103. In its judgment in State of South Australia v Lampard-Trevorrow [2010] SASC 56, the Full Court of the Supreme Court of South Australia held [at 307]:

“However, in our opinion the required element of restraint is not made out. It is artificial to treat the placement of Bruce Trevorrow with Mrs Davies as a restraint. While Bruce Trevorrow was an infant, he needed care and nurture. That is what Mrs Davies gave him. There was no restraint. It is artificial to describe him, while an infant, as under any restraint. As he grew a little older, and could walk and talk, it can be said that there was a restraint on his movements. But this was attributable to the obligation of Mrs Davies to care for him, and attributable to his immaturity. We do not think it is realistic to describe the care and protection given by the carer of a child as a restraint on the child, in the relevant sense of the term. Bruce Trevorrow was separated from, and denied, the care of his mother, but that does not establish the fact of restraint. It seems to us that if the notion of restraint for the purposes of the tort of wrongful detention were taken this far, the potential would arise for the tort to expand into previously untouched areas and situations, with unpredictable consequences.”

104. In my view, this statement reflects the essence of the present case. To the extent that there was some restraint on the plaintiff’s movements, this was attributable to the obligation of DoCS to provide for her care and protection, and her complex needs and requirement for supervision. The plaintiff was separated from her mother, but with her knowledge and approval, because of her inability to cope with her daughter’s unruly, sometimes violent behaviour and to provide for her complex needs. It would be artificial to treat the placement of the plaintiff at Kanangra as a restraint amounting to an imprisonment (see also T 286.15).

Lawful justification

105. Because the plaintiff has failed to make out a case on imprisonment I need only state briefly my findings on other issues raised.

106. I do not agree with the submission that there was no legal basis or other form of authority for accommodating the plaintiff at Kanangra. As the facts demonstrate, there was ample justification, the primary authority being the orders of the Magistrate (see [35] - [37] above and [101] at 4 - 7).

107. I do not agree that some application should have been made under the Mental Health Act 1990 to regularise the plaintiff’s placement at Kanangra. It was not needed, and in any event I agree with the defendant’s submissions that there was, in the case of this plaintiff, no basis for such an application.

108. Beyond these considerations lies the doctrine of necessity. Quite simply, DoCS was unable, consistently with its duty of care, to do other than it did.

Damages

109. Notwithstanding the findings I have made on liability I am required to give my assessment of the damages I would award in the event of a verdict in favour of the plaintiff.

110. It was agreed by the parties that in the context of the subject cause of action, any damages to be awarded fall to be assessed under the general law without modification by the Civil Liability Act 2002.

111. Damages claimed on the plaintiff’s behalf included general damages, by way of vindication of her rights, aggravated damages and exemplary damages. There was no allegation of any injury or special damage.

112. It was submitted that the Court should take into account the whole of the conduct to the time of verdict, including conduct that may have the effect of increasing the injury to the person’s feelings such as the absence of apology and the reaffirmation of the truth of the matter. Leaving aside the question of the extent to which this plaintiff might comprehend such notions, having regard to her intellectual disabilities, I would not regard this as a matter calling for any apology on the part of DoCS. As I have already said, the defendant, through its officers, at all times acted reasonably in the best interests of the plaintiff having regard to her complex needs.

General damages

113. It follows that any award of general damages would be limited to damages not dependent upon proof of any injury or loss, but awarded to reflect the intentional nature of the tortious conduct and compensate for the invasion of the plaintiff’s rights.

114. The significant factors said to be relevant to an award of general damages were summarised on the plaintiff’s behalf as follows:

(i) The very long period of the period of the plaintiff’s placement at Kanangra: 6½ years.

(ii) The placement was contrary to her wishes: she didn’t want to be there. Her desire to leave was made clear at the various hearings of the Guardianship Tribunal.

(iii) The plaintiff was separated from her family, especially her mother, with whom she has a close relationship, seeing her only on visits that she could only make several months apart.

(iv) The plaintiff was cut off from her peers. She was placed with residents who were largely more disabled than her, and she was socially isolated.

(v) She disliked her surroundings.

115. The defendant, for its part, pointed to factors such as the fact that but for her placement, the plaintiff would probably have had to go to gaol. Her accommodation at Kanangra, whilst not the ideal which her mother and guardian were seeking, was suitable to the plaintiff’s needs. She enjoyed significant opportunities to move freely within the complex and to establish relationships. She went outside the complex on a regular basis, went on holidays, and had regular visits to her mother’s place.

116. As to the length of the placement, counsel for the defendant went on to cite the following passage in Ruddock v Taylor [2003] NSWCA 262 (per Spigelman CJ):

“Damages for false imprisonment cannot be imputed on the basis of some kind of applicable daily rate. A substantial proportion of the ultimate award must be given for the shock of arrest. As the term of imprisonment extends, the effect upon the person falsely imprisoned does progressively diminish.”

117. The weight to be given to unlawful conduct depends on a range of considerations, including the degree of seriousness, or the degree of moral culpability involved: Hunter Area Health Service v Presland [2005] NSWCA 33 at [45] - [47] and at [55]. In the present case, the degree of moral culpability, assuming any were to be ascribed to DoCS, would be relatively low.

118. In assessing the plaintiff’s claim for general damages I take into account her age, the length of her placement, and the other factors addressed in the submissions. I would award a sum of $100,000.00.

Aggravated damages

119. Aggravated damages may be awarded where the defendant has acted in “contumelious disregard of the plaintiff’s rights” or in an insulting or high-handed way, or with malice. They are designed to compensate for injury to a plaintiff’s feelings, to redress indignity or hurt pride. However, the Court must be careful not to award such damages for matters already encompassed by any other award of compensatory damages. It has also been held that provocative conduct by a plaintiff may reduce such damages, or disentitle a plaintiff completely.

120. The High Court has said, in New South Wales v Ibbett (2006) 229 CLR 638 at [31]:

“Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing.”

121. I have already indicated a substantial award of damages to reflect the intentional nature of the tortious conduct, which includes an allowance for violation of the dignitary interest. I do not consider that an additional award of aggravated damages is warranted. In my view, the conduct of DoCS was not of a character that calls for such damages.

122. For these reasons, I would make no award of aggravated damages.

Exemplary damages
123. Exemplary damages may be awarded to register a court’s disapproval of a defendant’s misconduct, to punish, or to act as a deterrent: Lamb v Cotogno (1987) 164 CLR 1 at 9.

124. For my part I see no basis for punishment, nor any deterrence value in the awarding of any such damages in this case.

125. For these reasons, I would make no award of exemplary damages.

Interest
126. Counsel undertook to reach an agreed position on interest, or to send separate notes on their respective positions (T 319). In view of the result, I will not concern myself with a finding on any interest to be awarded on the general damages assessed.

Costs
127. The prima facie position is provided for in r 42.1 and r 42.2, to the effect that the costs should follow the event and be assessed on the ordinary basis. I will give leave for either party to make an application for some other order.

Disposition

128. There will, therefore, be a verdict for the defendant.

129. I direct the entry of judgment for the defendant.

130. I order the plaintiff to pay the defendant’s costs, on the ordinary basis.

131. I give leave to the parties to apply for some other costs order or orders provided any such application is notified to the other party and the court within 14 days, in writing, specifying the order sought.