McDonald v State of New South Wales

[1999] NSWSC 350

CITATION:	McDonald v State of New South Wales [1999] NSWSC 350 revised - 31/08/99
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	20642/96
HEARING DATE(S):	17 February 1999 - 24 February 1999
JUDGMENT DATE:	20 April 1999
PARTIES :	Timothy Andrew McDonald by his next friend Lynnell Hogan v State of New South Wales
JUDGMENT OF:	at 1

COUNSEL :	H. Shore (Plaintiff) B. Donovan QC with G. Moore (Defendant)
SOLICITORS:	Graham Jones (Plaintiff) I.V. Knight, Crown Solicitor (Defendant)
CATCHWORDS:	Tort - Trespass to Person - Profoundly Developmentally Delayed Victim - Employee of Care Authority - Vicarious Liability - Aggravated and Exemplary Damages Claimed
ACTS CITED:	Law Reform (Vicarious Liability) Act 1983
CASES CITED:	Cassell & Co v Broome 1972 AC 1027 CES v Superclinics (Aust)Pty Ltd 1995 38 NSWLR 47 Commonwealth of Australia v Connell 1986 5 NSWLR 218 Connors v Doak 1978 24 NBR 2d(85) Costi v Minister of Education 1973 5 SASR 332 Coyne v Citizen Finance Ltd 1991 172 CLR 211 Del Ponti v Del Ponti 1987 11 NSWLR 498 Gray v Motor Accident Commission 1998 73 ALJR 45 Griffiths v Kerkemeyer 1976-7 139 CLR 161 Hern v Nichols 1701 1 Salk 289 Johnston v GIO unreported Finlay J 2 December 1993 Lamb v Cotogno 1987 164 CLR 1 Lloyd v Grace Smith & Co 1912 AC 716 Merest v Harvey 1814 5 Taunt 442 128 ER 761 Nguyen v Nguyen 1990 169 CLR 245 Prior v The State of NSW CA Unreported 23 October 1998 Rookes v Barnard 1964 AC 1129 Rose v Plenty 1976 1 All ER 97 Skelton v Collins 1996 115 CLR 94 Spautz v Butterworths 1997 A Torts R81-415 Stepanovic v GIO Unreported 29 March 1995 Tiger Nominees Pty Ltd v State Pollution Control Commission 1992 25 NSWLR 715 Uren v John Fairfax & Sons Limited 1966 117 CLR 118 Van Gervan v Fenton 1992 175 CLR 323
DECISION:	Damages Assessed

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Tuesday 20 April 1999

20642/96 - TIMOTHY ANDREW McDONALD by his next friend LYNNELL HOGAN v STATE OF NEW SOUTH WALES

JUDGMENT
1 HIS HONOUR : Timothy Andrew McDonald was born on 30 March 1962, the youngest of four siblings. He is developmentally delayed to a marked degree. The exact cause of this has not been determined but his disability is profound. He has never crawled or walked. For a few months he demonstrated a capacity to roll over but he stopped doing this and is substantially incapable of independent movement. He can wave his arms and elevate from the supine to an extent. At the age of two or three he is reported to have had a few words at his disposal but these have been lost and he is limited to non verbal sound making. Those close to him regard his eyes as expressive and they recognize moods in him such as joy, fear, upset and the like. He has always been and will remain totally dependent on others for every activity of living.
2 Until he reached the age of 27, the plaintiff was cared for in his home at Goulburn principally by his mother with some assistance from other family members. His mother, Mrs McDonald is now aged 67 years. She was widowed when Timothy was 16. Mrs McDonald’s own health has not been robust in recent years. She is diabetic and has been told apparently, that she has osteoporosis. She has had major surgery to her spine, the last procedure taking place in about mid 1988.
3 It came to pass that the plaintiff attended on a day basis at Strathallen Centre, a facility conducted originally by the Department of Health and taken over by the Department of Family and Community Services ( as it was then known). By gazettal on 30 June 1989 Strathallen Centre and other similar developmental disability centres were removed from the list of hospitals in the 5th Schedule to the Public Hospitals Act, that removal taking effect on 1 July 1989. I shall return to this matter. When Mrs McDonald was required to go to Sydney for surgery in 1988, she agreed to the plaintiff entering Strathallen for full time residential care, a decision which she testified that she made with reluctance:
“Q. Some time in 1988 he went into full time residential care?

A. Yes.
Q. And did could you tell us how you felt in terms of whether you experienced any guilt about that, or whether you did not?
A. I think every mother of a handicapped person has this feeling of guilt. I wanted to be able to look after Timothy all my life and me being the only one to do it.”
4 However, in the light of experience Mrs McDonald came to terms with the situation. She gave this further evidence:
“Q. And you told us that you were satisfied with the service, had you made some assessment or judgment about it in coming to that conclusion?
A. At that time when I really put Timothy there, they had cottages out at Strathallen, and I fought like for them to be separated from the psychiatric for the developmentally delayed, and when these cottages were built I thought it was the answer to my prayers. I thought they were wonderful. They were lovely cottages and nice sized rooms.”
5 Timothy was accommodated in a cottage designated as No 5. He was allocated his own room and he shared the house with four other residents. By day he spent time reclined in either a bean bag or a chair in the living area. Staff attended to all his needs which of course included bathing, dressing and feeding him. He is incontinent and his lower torso was enclosed in a large napkin-like garment with urine pads placed within it.
6 Family members, prominently his mother and his sister Mrs Hogan spent extensive time with him. On occasions, usually in liaison with the welfare officer Mr Livermore, Timothy would spend a day at home. Towards the end of 1989 Mrs McDonald observed that her son appeared to be disturbed. Of course, he could not communicate his feelings by words but she thought he was withdrawn and that the noises he made were not in accord with normalcy and she noticed him, unusually, clinging to his brother. She consulted Mr Livermore who arranged for medical examinations but although these were undertaken the medical examiners did not detect any injury or anything that could be diagnosed as different from or super-added to his usual condition.
7 It has been common ground in the litigation (despite the formal declining to admit matters by the Amended Defence) that an employee at Strathallen Centre Vicki Adams, a registered nurse, committed a series of assaults upon the plaintiff whilst he was in residence at cottage No 5. I should specify that Sister Adams has not been called to give evidence by either side and accordingly she has had no opportunity to give any account of her conduct or offer any explanation she might wish to make. Other employees of Strathallen have given evidence about what they saw her do and there have been tendered records of investigation and enquiry together with statements taken in connection with them. As well the evidence includes departmental minutes, memoranda, file notes and depositions taken at Goulburn Local Court when Sister Adams was prosecuted on charges of assault. A series of relevant certificates of conviction was also tendered.
8 For the purposes of this litigation therefore and from that material I find that Sister Adams committed assaults upon the plaintiff. There are 12 certificates of conviction each specifying an offence of assault upon Timothy McDonald without particulars and notifying that in respect of each charge Sister Adams was released after conviction upon her entry into a recognizance in the sum of $300 without surety to be of good behaviour for three years pursuant to s 558 of the Crimes Act. As I have said, the certificates in their terms do not discriminate the various acts which constituted the individual assaults. I am satisfied that those acts included inhibiting the plaintiff’s breathing through nasal passages by placing a peg on his nose and by holding his nose between fingers; taping his mouth with micropore; pulling his head by the hair; splashing cold water on him while he was in a bath of warm water; putting a urine soaked incontinence pad on his face and stamping on his hands and feet. The evidence does not enable me to find precisely when any particular assault took place. I do not ignore the observations by Mrs McDonald which led to her request for medical examination in the latter half of 1989 but application of the standard of proof leads me to the conclusion that probably the assaults were committed between November 1989 and mid January 1990 at which latter time Sister Adams was removed from duty in the Strathallen cottages.
9 These assaults were witnessed by other members of staff who were junior in status to Sister Adams. I accept their further evidence that she made reference to the plaintiff from time to time in insulting terms such as referring to him as “an abortion gone wrong”. I reject however the invitation of counsel for the plaintiff to find that there were probable assaults committed by Sister Adams when others were not there to observe. The argument advanced was broadly based upon the proposition that Sister Adams were rostered from time to time on night duty. On such occasions two staff supervised five cottages and worked independently save for times when they might require the assistance of each other for a particular task such as lifting a patient/resident. At the time of Mrs McDonald’s observation of change in her son paralleling the time of the now known assaults and subsequently, Mrs McDonald’s observations included manifestations by the plaintiff of what might be called night terrors. Therefore, it was contended that it was more likely than not that the plaintiff had been the victim of other assaults at times when Sister Adams was alone at night and unobserved, given her apparent contempt for him and her propensity to commit assaults upon him. I am unwilling to draw an inference of the probable occurrence of assault or assaults from the circumstances demonstrated by the evidence other than those testified to by the witnesses.
10 Upon being informed of Mrs McDonald’s concerns about her observations of change in her son’s demeanour, Mr Livermore had arranged for medical examinations which detected no sign of injury on the body. The misconduct of Sister Adams came to the attention of management at Strathallen as a result of information provided by a Sister Kennedy, a staff member who reported to Mr Aubrey a nursing unit manager who in turn informed the Mr Boyle the Director of Nursing. This chain of information passing occurred approximately 15 to 17 January 1990. There is evidence to suggest that some complaint about Sister Adams’ conduct had earlier been passed to Mr Mills (a senior charge nurse) on about 10 January but his response was to indicate that he would not do anything unless he was given written confirmation of complaint. His position was immediately above that of Sister Adams being senior and junior charge nurses respectively. They were described as friends and were said to socialize outside of the work environment. I consider it would be entirely prudent to require any complaint about serious misconduct to be submitted in writing. The possible reaction to such complaint is suspension of an employee and ultimate dismissal and it would be a quite unreasonable administration which risked the complainant varying, ameliorating or even denying the substance of oral communication upon which action had been taken. The tone of submissions on behalf of the plaintiff was that there was something sinister about Mr Mills’ reaction but I do not find it a matter for criticism.
11 A letter dated 24 January 1990 was sent by Mr Boyle to Sister Adams (Exhibit 3) and it referred to an earlier communication of 19 January in which charges under the Public Sector Management Act were notified. Sister Adams never thereafter returned to work at Strathallen. A preliminary enquiry was directed to be undertaken by Mr Smith the Deputy Director of Nursing by the terms of an Instrument dated 1 February 1990. On 7 February 1990 Mr Smith reported (Exhibit N) recommending pursuit of some of the charges already notified together with some additional charges. He made a recommendation to extend the “time frame” of charges to span from 1 August 1989 to 10 January 1990 but this does not cause me to depart from my finding on the evidence that the relevant assaults probably took place no earlier than November 1989. After an ensuing formal interview the delegate of the Director General recommended on 18 June 1990 that Sister Adams be dismissed from the Public Service. On 22 June 1990 Sister Adams sent by facsimile transmission a letter of resignation expressed to take effect from that day (Exhibit DD). On 27 June 1990 approval was given to its acceptance on those terms (Exhibit CC).
12 On 26 January 1990 Mr Boyle and Mr Livermore had called on Mrs McDonald. The detail of what was conveyed on this occasion is not clear and there is some dispute, however it is plain that Mrs McDonald was informed that it was alleged that Timothy had been assaulted by a staff nurse. I am satisfied that the officers declined to nominate the nurse at that stage but that they informed Mrs McDonald that an investigation was taking place and that more information would be forthcoming when it had been finalized. I do not doubt that Mrs McDonald was shocked by this news and she became distressed at not being privy to the detail of the allegations immediately. Thereafter she aggressively pursued whatever avenues occurred to her to gain further information. Mrs McDonald complained that from the interview on 26 January she gained the impression that the number of charges was limited to two and that it was only much later (in August) that she learned of the larger number. I am not satisfied that anyone sought to deceive her but I am satisfied that the departmental employees restricted her access to information until the procedures under the Public Sector Management Act were completed. I do not find that such restriction was improper.
13 On 31 July 1990 the Department of Family and Community Services wrote to Mrs McDonald in these terms (Exhibit Q):
“I am writing to inform you of the course of events since my previous letter of 12 March 1990. At that time a preliminary inquiry that had been instituted under the disciplinary provisions of the Public Sector Management Act 1988 was in train.
Following consideration of the report of the preliminary inquiry I issued a letter of charge to Sister Adams regarding nine alleged breaches of discipline relating to her care of clients, including your son Timothy, at the “Strathallen” Centre. Sister Adams formally responded to the charges on 2 May 1990, denying all the allegations and requesting an interview with an officer nominated by me, as was her right under the Act.
Sister Adams was interviewed on 4 June 1990 in the presence of an officer of the Nurses Association by Mr David Sherlock, Director of Operations (Disability Services). Mr Sherlock subsequently recommended that Sister Adams be dismissed from the Public Service. This recommendation was approved by the Deputy Director General (Mr Marchant) on 20 June 1990.
Prior to the service on Sister Adams of this decision she submitted her resignation with effect from 22 June 1990. After consideration the Deputy Director General accepted Ms Adams’ resignation.
In my earlier letter to you I stated that the Department demands the highest possible standards of skill, care and commitment from its staff. The actions taken by the Department in this mater confirm my statement.
I re-affirm my earlier assurances that you need have no further anxiety for Timothy’s welfare.”
14 Mrs McDonald testified that someone from the department had telephoned her and told her that Sister Adams had been dismissed and when she learned that, in lieu of dismissal, resignation had been accepted she felt that she had not been told the truth. She was unable precisely to locate the time of information receipt and it is quite conceivable that she was told that a decision had been made to dismiss Sister Adams (as it was) and, as the evidence shows that the acceptance of resignation followed a subsequent decision, both communications might well have been accurate at the time they were made.
15 Mrs McDonald sought all the documentation concerning the enquiry and this was not supplied to her. Some insight is available from a document tendered by the plaintiff (Exhibit WW) which is an undated briefing note to the Minister from Ms Meredith (a regional officer) which noted that the above recited letter to Mrs McDonald had been sent following her request for full documentation, however:
“Mrs McDonald was extremely angry and upset that she had not received the information which she requested from the Department and contacted Mr Kerry Boyle and indicated that she was considering approaching the media including the Hinch Program, and the Redfern Legal Rights Centre, and that she intended to exercise her rights under the Freedom of Information Act.”
16 On 14 August 1990 Ms Meredith and Mr Boyle visited Mrs McDonald and gave her details substantially amounting to particulars of the assaults. Mrs McDonald asked for the information to be given to her in writing but was informed that such a request would need to be dealt with by the Director General. A further comment was added in the briefing note:
“Mrs McDonald is extremely angry, and referred to the situation, and the Department’s actions in accepting Sr. Adams’ resignation, as ‘despicable’, ‘unforgivable’, and stated that she does not intend to let the matter rest nor to let Sister Adams ‘get off scot-free’.”
17 On 30 August 1990 Mrs McDonald took the plaintiff out of full time residence at Strathallen. He has returned for day and respite care on occasions since then. A schedule of attendances has been extracted (Exhibit 7) from which it can be observed in passing that at a time critical to the emergence of complaints about Sister Adams namely between 15 and 22 January 1990, the plaintiff was coincidentally on “short leave” in his mother’s care.
18 In October 1996 the plaintiff entered full time care at St John of God Hospital, Goulburn from where he was transferred to Waminda Nursing Home on 13 January 1997. He remains there. Although this is primarily an aged facility, the plaintiff has an air conditioned single bedroom. A letter from the Director of Nursing at Waminda (Exhibit SS) described the situation, the simple things provided to occupy or amuse the plaintiff and the interesting comment that although he has no useful speech “by clever use of body language and the tone of his voice, one is able to deduce his wants, likes and so on”. The Director stated that there was “no reason to assume that Timothy will be unable to remain here for as long as he or his family wishes.”
19 This action was commenced in the District Court in 1995. It was transferred to this Court by an order made on 27 May 1996.
20 The plaintiff’s claims were advanced in an Amended Statement of Claim filed on 9 April 1997 and I deal with them in accordance with that pleading. In short, the plaintiff claimed:
(1) That the defendant was vicariously liable in tort for the trespasses to the person of the plaintiff by Sister Adams;
(2) That compensatory, aggravated and exemplary damages should be awarded in respect of those trespasses;
(3) That the defendant was vicariously liable for the negligence of the members of the staff at Strathallen who failed to report observed instances of abuse;
(4) That those omissions by staff members were causative of damage to the plaintiff and compensatory and aggravated damages were sought;
(5) That the defendant in the management by the Department of Family and Community Services of Strathallen Centre failed to institute and maintain adequate systems which ought to have avoided the trespasses or the continuation of them;
(6) That the failure to institute and maintain an adequate and safe system was causative of damage to the plaintiff and compensatory, aggravated and exemplary damages were sought, and
(7) As a particular item of compensatory damage the plaintiff sought the cost of 24 hour care at rates applicable for commercial carers for the ministrations of the plaintiff’s mother and other family members during the period from August 1990 when he left Strathallen until October 1996 when he entered St John of God Hospital.
21 It is a matter of extreme difficulty to assess what actual damage the assaults caused. Mrs McDonald and Mrs Hogan described their perceptions of the plaintiff’s changed demeanour, however the medical examination which followed the reports to Mr Livermore detected nothing of significance. I gained the impression that Mrs McDonald’s anger, as for example conveyed in the remarks attributed to her in the above quote from the briefing note, continues unabated and that that mood was also to an extent shared by Mrs Hogan. Whilst I do not doubt their loving devotion to the plaintiff (a matter for obvious admiration), I am persuaded that their assessments are affected by passion and lack objectivity and where there is difference I prefer other assessments.
22 The various staff members who gave evidence of Sister Adams’ conduct were themselves familiar with the plaintiff and saw him in the frequent routine of their various employments. All of them manifested a caring interest in him. Mrs Cosgrove saw Sister Adams place micropore over the plaintiff’s mouth which she herself immediately went to remove but this provoked Sister Adams to do so. She also witnessed an incident of splashing with cold water whilst the plaintiff was in the bath. Her observation was that after these incidents the plaintiff settled down easily and fairly quickly. Mrs Koromikalou saw Sister Adams hold the plaintiff’s nose as a consequence of which his face turned blue. She also saw an incident when Sister Adams stamped upon the plaintiff’s feet while he was sitting on a bean bag. The plaintiff’s lower limbs are markedly underdeveloped. On each occasion she described the plaintiff as reacting by becoming hysterical. Mrs Koromikalou thought that after these events the plaintiff manifested a fear of Sister Adams but after her departure in January 1990 she thought he was back to his old self, saying “He was alright in a happy environment. If he is okay, he is okay. Depending on how you see to him.”
23 Ms Jacka observed two incidents involving Sister Adams disrupting the plaintiff’s nasal breathing, once by holding his nose with her fingers and once by placing a peg on it. She also saw Sister Adams tread on the plaintiff’s hands and feet whilst he was sitting in the bean bag. Ms Jacka said that after the departure of Sister Adams the plaintiff was “the same as he was before”. This opinion was expressed in particular concerning her observations of the plaintiff when he returned for day or respite stays after he had ceased to be a full time resident at Strathallen.
24 Ms Wilson saw Sister Adams place a peg on the plaintiff’s nose. Ms Wilson removed it, telling Sister Adams that she disapproved. It was claimed that the intention was to stop the plaintiff regurgitating food but Ms Wilson saw that the plaintiff was in obvious distress which he showed by waving his arms about. She thought he settled down quickly after the peg was removed. She judged that the plaintiff was well settled in cottage 5 and appeared to be so when he returned from day or respite care after he had been withdrawn by Mrs McDonald in August 1990.
25 Ms Whittaker saw the plaintiff with a peg on his nose although she did not see who applied it. Sister Adams was in charge of the cottage at the time. On another occasion she saw Sister Adams hold a bib over the plaintiff’s face after he had regurgitated some food. She witnessed a further incident when Sister Adams pulled the plaintiff’s head by the hair. She perceived an annoyed reaction by the plaintiff who made non verbal sounds of distress. In her testimony Ms Whittaker claimed little memory of these events now many years past but she asserted that she and others on the staff, with the exception of Sister Adams, saw that the plaintiff was well cared for.
26 Ms Shoppee saw Sister Adams put micropore across the plaintiff’s mouth. Ms Shoppee removed it immediately and remonstrated with her. She also saw Sister Adams hold the plaintiff’s nose in an apparent attempt to make him swallow food. Ms Shoppee asked Sister Adams to stop, which she did. She noticed the plaintiff flinch. Ms Shoppee had been familiar with the plaintiff from the time of his arrival at Strathallen. She had noted his immediate reaction to Sister Adams’ interference but overall she said that she never noticed any change in the plaintiff.
27 Ms Lacey had seen an incident involving Sister Adams and a resident Mr Cannon. She worked as a hospital assistant frequently at cottage No 5. She knew the plaintiff. To her observation the plaintiff appeared happy and cheerful at Strathallen including the period, to which her attention was directed, following the inquiry concerning Sister Adams and her departure.
28 Ms O’Donnell observed Sister Adams put a urine soaked napkin which she had removed from the plaintiff’s lower body across his face. Ms O’Donnell rebuked Sister Adams and removed the item and wiped the plaintiff’s face. Apart from the conduct by Sister Adams, Ms O’Donnell observed that the plaintiff appeared well cared for by herself and other staff and thought that he seemed to relate well to them.
29 There is no evidence from any source of any physical injury or damage to the plaintiff resulting from assault beyond the immediate and passing reactions to the interference with his person. There were placed in evidence two reports from Professor Shaddock, a psychologist who is a professor of special education at the University of Canberra. He would appear to have made some contribution to the record in the BIALA booklets (Exhibit 9A and B). Professor Shaddock emphasized that he was not a medical practitioner but recognized that it was necessary to contemplate medical factors as influential upon the plaintiff’s life and situation. He made three visits to the McDonald household in September, October and December 1995. Although under a heading in his report indicating an overview of findings, it is obvious that the factual matters as to behaviour were derived by him from reports of others. His comment included the following:
“Early reports state that, at the time of the abuse, there were behavioural indicators (night time screaming, uncharacteristic fearfulness) that could have been interpreted as indicators that something in his life was disturbing him. Such behaviours are, in the literature, associated with physical abuse. However medical investigations at that time were inconclusive.
Mr McDonald now lives at home, receiving day care at the Strathallen Centre and fortnightly respite care at a private residence. Although he generally appears quite happy, he is more wary and cautious than before the abuse. He needs reassurance (from his mother) before he relaxes in the presence of strangers. He has also made some developmental gains since living at home.
I found no indisputable evidence of long term, direct, negative effects on Mr McDonald of the abuse.
However, since the abuse of Mr McDonald’s there has been some deterioration in aspects of Mr McDonald’s behaviour. He is now abnormally vigilant and apprehensive; he needs constant reassurance; he is upset by breaks in routine and he displays a general fearfulness.”
30 The statement that medical investigations were inconclusive must be taken in the context of support for the hypothesis of assault and injury. The medical investigations detected no damage nor any condition of the plaintiff different from his normal presentation.
31 In a later report Professor Shaddock adhered to his view concerning the absence of long term, direct, negative effects of the abuse but expressed a qualification (on the probabilities) concerning the desirability of taking the plaintiff home from Strathallen. I shall return to the issue of the plaintiff being brought home when dealing with the claim for damages for provision of voluntary services. Professor Shaddock also commented upon a series of reports including those from Mrs McDonald and Mrs Hogan that the plaintiff cried and squealed inconsolably at night, pinched and picked at his body, clung to family members and regressed in the trust which he showed but wanting people to hold him. Mrs McDonald also felt she was “snubbed” by her son after she was absent for a few days at a family funeral interstate. It is not possible to connect the lastmentioned with any event at Strathallen. However Professor Shaddock reported:
“The literature on abuse of people with intellectual disability indicates that the behaviours described above are frequently the indicators of physical abuse. Fortunately most of these behavioural changes appear to have been temporary in Mr McDonald’s case. However, it was reported that Mr McDonald now appears to be habitually more anxious and insecure and he requires more stability and dependability in his immediate environment. He is also more wary of strangers, particularly and (inexplicably), of men. He needs constant reassurance from those he trusts. This general fearfulness was also reported by other informants.”
32 I find that each of the assaults had immediate impact upon the plaintiff in causing him hurt and distress and that as a result, there were engendered in him for a time feelings of fear and mistrust. The evidence does not enable precise determination of when the consequential effects ceased but it does not satisfy me that they are continuing and, on the probabilities, I hold that any effect attributable to the assaults had ceased after the expiry of 12 months beyond the events. I am not suggesting that I find that they lasted for 12 months but I have selected that as an outer marker point, as it were, of consequences.
33 I am conscious of course of the expression of view by Mrs McDonald in particular that the effects are continuing but I consider that that perception is derived from her own anxieties and not from any tort induced damage to the plaintiff. The assaults were, of course, criminal as well as tortious. Mrs McDonald’s subjectivity is demonstrated in a remark reported in 1992 by Ms Barbey, a Goulburn community nurse coordinating developmental disability services:
“No-one can understand the horror I feel when I think that Timothy may have to return to Strathallen when I am no longer able to manage.”
34 It is beyond argument that Sister Adams would, if sued, be liable to pay damages to the plaintiff for the assaults. The first basis upon which claim is made against the defendant is that it is vicariously liable for her conduct. All of the assaults occurred in the course of employment with the defendant. Sister Adams has claimed or has been reported to have claimed that the instances of nasal obstruction (by fingers or pegs) and mouth taping were designed to provoke swallowing regurgitated food during feeding of the plaintiff. I do not accept such claims in the sense that any legitimate form of nursing would call for such action but these were activities which were undertaken in purported performance of a particular employment task. I have not overlooked the denials by Sister Adams reported in the preliminary inquiry (Exhibit N) but I do not regard them as either acceptable or determinative of the nexus between her acts and her employment.
35 I find that the assaults consisting of stamping on hands and feet, flinging the urine soaked napkin in the face, and pulling the hair are in a different category in the sense that it has never been claimed (so far as the evidence called reveals) that any of these acts was done in connection with any particular reference to a task being undertaken in the course of Sister Adams’ employment.
36 Sister Adams asserted to Mr Smith who was conducting the preliminary inquiry that she did not use cold water on the plaintiff but had mixed hot and cold water to obtain lukewarm liquid which needed to be done in that way in the absence of appropriate facilities such as a hose. The evidence in the trial by Ms Cosgrove was that the water was cold which she could assess because it splashed on her also. The credibility of Sister Adams’ reported explanation to Mr Smith was undermined by the testimony from Ms Cosgrove that at the time she remarked “It’s good value”.
37 The potential liability of the Crown in the right of the State of New South Wales has been declared in the Law Reform (Vicarious Liability) Act 1983 which provides:
“8(1) Notwithstanding any law to the contrary, the Crown is vicariously liable in respect of the tort committed by a person in the service of the Crown in the performance or purported performance by the person of a function (including an independent function) where the performance or purported performance of the function:
(a) is in the course of his service with the Crown or is an incident of his service (whether or not it was a term of his appointment to the service of the Crown that he perform the function); or
(b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the Crown.”
38 Attention to that provision has recently been given in Prior v The State of New South Wales CA unreported 23 October 1998. Although differing from the primary judge’s conclusion in that case, Meagher JA recited without disapproval a construction of that provision that in order to found liability first, one must find a tort committed by a person in the service of the Crown, second that the person was actually or purportedly performing a “function” and third, that the tort must have been committed by the person in the performance or purported performance of that function. Sheller JA (with whom Handley JA agreed) referred to Commonwealth of Australia v Connell 1986 5 NSWLR 218:
“I would conclude that conduct by an apprentice sailor is within the scope of his service or duty or authority if it is authorised expressly or impliedly or is incidental to what he is authorised to do even though it may be performed in an unauthorised way. If, however, it is not authorised expressly or impliedly and is not so connected with authorised conduct as to be an improper mode of performing it, it is an independent unauthorised act and is outside the scope of his service.” Per Glass JA, Samuels and Priestley JJA concurring,
and to Tiger Nominees Pty Limited v State Pollution Control Commission 1992 25 NSWLR 715 where Gleeson CJ, (Mahoney JA and Campbell J concurring) adopted as a test for determining vicarious responsibility (in that case a criminal responsibility) attaching to an employer, the distinction “between a mode, albeit improper, of doing that which the employee is employed to do and conduct which is outside the scope of the employee’s employment”.
39 Whilst vicarious liability undoubtedly has an arbitrary quality, the tendency has been towards imposition. It was long ago held that a principal was liable for the fraud of an agent acting within the scope of authority even if committed for the benefit of the agent: Lloyd v Grace, Smith & Co 1912 AC 716. The public policy factor is recognizable in very early expressions of judicial thought. Sir John Holt wrote in 1700 “…….. seeing somebody must be a loser by (this) deceit, it is more reason that he that employs and puts a trust and confidence in the deceiver should be a loser, than a stranger”: Hern v Nichols 1701 1 Salk 289. That observation was in this century described by Scarman LJ (as he then was) as prophetic wisdom ( Rose v Plenty 1976 1 All ER 97) and, in similar vein to the situation noted by Lord Scarman in Rose , I would recognize that that wisdom has no direct application to the present case but there is “a family relationship”.
40 The issue for determination is the vicarious liability of the defendant for the trespasses to the person of the plaintiff by Sister Adams. Although I accept that the actions in every case were incapable of being performed in the proper administration of nursing care, Sister Adams asserted that some of them were designed to assist him particularly in suppressing food regurgitations. That purport, even if it is unacceptable, remains significant. Sister Adams was employed, inter alia, to attend to feeding the plaintiff. Similarly it was an incident of her employment to bathe him and, whilst her remark at the time is suggestive of malice, in terms of the test articulated in Tiger Nominees this was an improper mode of doing what she was employed to do. The same comment is applicable to the removal of the urine soaked napkin which was done, I have presumed, in the course of replacing it with a clean one. There is some difficulty in reaching a similar conclusion in respect of the incidents of stamping on hands and the hair pulling but no submissions were made based upon discriminating between the assaults, the defendant contending total denial of liability. In the circumstances I am minded to find that all of the actions should be categorized as improper modes of doing what Sister Adams was in the general sense employed to do, namely to attend to the welfare and daily living needs of the plaintiff.
41 Accordingly I find that the defendant is vicariously liable to pay damages for trespass to the person. The nature of compensatory damages is to reflect hurt suffered. Despite the plaintiff’s inability to articulate complaint, I am satisfied that from the observations of reaction recounted by staff he was conscious that hurt was being done to him. There was no evidence of bodily harm in the sense of bruising, abrasion, laceration or like injury. I note the descriptions of mood change by Mrs McDonald and Mrs Hogan but as I have already held, I am unpersuaded that anything of that nature was causally connected to any assault by Sister Adams after the expiry of 12 months beyond her departure. A particular aspect of claim was that what I have referred to as night terrors were continuing. Mrs McDonald has described this uncontrollable squealing as being observed on occasions when the plaintiff came home as he did from time to time including late 1989. It was not until August 1990 that the plaintiff was withdrawn from Strathallen and it must be observed that there has been no evidence of any report from any member of staff of manifestation of this uncontrollable squealing at night during the period between Sister Adams departure and withdrawal of the plaintiff from Strathallen by his mother over seven months later. Other than the description of conduct of Sister Adams there was no evidence of malice towards the plaintiff and those staff and former staff who gave evidence impressed me as caring of the plaintiff and interested in his welfare. Taking all matters into account I conclude that the plaintiff probably did sometimes manifest sleep disturbance and produced sounds of discomfort but the descriptions from his mother and sister have exaggerated both the intensity and the span of time over which the behaviour was manifest. I record that this conclusion is not premised upon any finding of deliberate inaccuracy by those witnesses but the exaggeration probably stemmed from loss of objectivity consequent upon their deep anger and upset over what had happened to the plaintiff.
42 The arguments presented on behalf of the plaintiff claimed damages specified in categories of compensatory, aggravated and exemplary damages. I have described this first element of claimed damages as compensatory to coordinate with those submissions but it should not be ignored that damages for trespass to the person, in parallel with torts such as false arrest and false imprisonment are at large: cf Spautz v Butterworths 1997 A Torts R 81-415. To recognize that damages are at large is not to suggest that a trial judge is authorized to select a figure arbitrarily or idiosyncratically and personal injury awards in more commonly litigated torts (such as negligence) are available to provide guidance by way of comparison: Coyne v Citizen Finance Limited 1991 172 CLR 211.
43 In the present case the assaults were multiple and, to say the least, heaped indignity as well as hurt upon a completely defenceless person. It is true that the plaintiff undoubtedly lacks any appreciation of money or any form of currency but he was not indifferent to the treatment meted out to him as witness his distressed responses and the use of his limited means of expression.
44 I have not overlooked the slight discrepancy between the pleading which asserted 13 assaults and the certificates of conviction which total 12, however I cannot correlate the certificates to the various acts described by witnesses either by collating their evidence, the depositions from the Goulburn Local Court and/or the statements to the departmental inquiry. It suffices in the context of this litigation to find that there were multiple trespasses upon the plaintiff as described by the staff members and former staff members in their respective testimony. I have previously summarized their observations.
45 I have reached the conclusion that a sum of $50,000 should be awarded for the total of assaults including within that award reflection of the indignities, humiliations and mental suffering as well as any transient feelings of hurt and disturbance to comfort and well being. That sum clearly exceeds any sum proportioned to physical injury and discomfort and the inclusion of the enhancement is frequently described as an inclusion of aggravated damages. It was agreed that, should the plaintiff succeed in recovering damages there should be included two items of $2,483 and $850 (total $3,333) for certain home and respite care and the amounts will be added to the sum which I have specified.
46 The plaintiff’s contentions advanced a claim for aggravated damage as a separate category. The thrust of the argument was summarized in a written outline of submissions:
“Aggravated damages ought be awarded because of the manner in which the tort has been inflicted adds to the damage. It has been accompanied not only by humiliation and a total demeaning of the subject of the assault but the same has been inflicted upon a person with a mental age of less than 1 year. The respective roles of the perpetrator and the victim are so disproportionate, so far from arm’s length that aggravated damages of a massive order are called for.”
47 In the often quoted classification of damages by Lord Diplock ( Cassell & Co v Broome 1972 AC 1027) aggravated damages were described as “additional compensation for the injured feelings of the plaintiff where his sense of injury resulting from the wrongful physical act is justifiably heightened by the manner in which or the motive with which the defendant did it”.
48 As observed in Street on Damages (1962) and quoted by Hogarth J in Costi v Minister of Education 1973 5 SASR @ 332:
“Evidence of the circumstances accompanying the commission of a tort for which damages at large is a head of permissible damages will, of course, be permitted; when that evidence tends to show that a higher sum of damages will be appropriate, the higher award is often called aggravated damages. Damages are awarded in assault for the effect on the plaintiff’s mental state produced by the defendant’s threats ….. Aggravated damages then are not some separate head of damages. The essential question is what heads of damages are legally recoverable for the particular wrong. Obviously, certain heads of damage such as compensation for humiliation and insult lend themselves more readily to claims for aggravated damages ….. For at least two hundred years aggravated damages have been given for trespasses which have inflicted insult or humiliation upon the plaintiff ……”
49 McGregor on Damages (16th Edn) contains these observations:
“In so far as an assault and battery results in physical injury to the plaintiff, the damages will be calculated as in any other action for personal injury. However, beyond this, the tort of assault affords protection from the insult which may arise from interference with the person. Thus a further important head of damage is the injury to feelings, i.e. the indignity, mental suffering, disgrace and humiliation that may be caused. Damages may thus be recovered by a plaintiff for an assault, with or without a technical battery, which has done him no physical injury at all. While damages for the injury to feelings may be given without their being classified as aggravated damages, it is usual to find, in the very few existing authorities, that the court does make its award one of aggravated damages.”
50 The inclusion in the assessment which I have already made of compensation for hurt, indignity and humiliation would be duplicated were I to make a separate award enhancing the already stated sum.
51 One of the difficulties in dealing with these claims is the circumstance that until 1964 Anglo-Australian courts did not distinguish between aggravated and exemplary damages. See Luntz, Assessment of Damages 3rd End Chap 1.7.1. Subsequent history has made the approach contended for by the plaintiff understandable and I recognize that there have been cases of separate awards in three categories: e.g. Stepanovic v G.I.O. CA Unreported 29 March 1995. On the other hand references in earlier cases to exemplary damages can be identified as what would now be called aggravated damages rather than exemplary (punitive) damages or, most often, a combination of them both.
52 In the present case, compensatory damages directly proportioned to actual injury would not greatly exceed a nominal sum but I have included in the assessment of $50,000 the factors abovementioned. There is little available guidance for an appropriate figure, if indeed there be one. In a somewhat exotic case, a defendant who was banker, magistrate and Member of Parliament (said to have dined and drunk freely) upon his request to join a shooting party being declined entered land with his dogs and fired at game (seeking to borrow more shot when his own was exhausted) and in intemperate language defied the plaintiff estate owner to bring action: Merest v Harvey 1814 5 Taunt 442; 128 ER 761. A verdict of five hundred pounds was left undisturbed although it must be conceded that the language of Gibbs CJ appears to emphasize the punitive character of permissible award. Heath J (who had tried the action at Norfolk assizes but sat with the Chief Justice in Common Pleas) remarked that he remembered a case where a jury gave five hundred pounds for knocking a man’s hat off and the court refused a new trial. He added that the permission of juries to punish insult by exemplary damages would go to prevent the practice of duelling. This rather dated reference is made to demonstrate that (given the combination of aggravated/punitive damages) comparatively large sums of money have been deemed appropriate.
53 In Stepanovic separate awards of $10,000 and $15,000 for aggravated and exemplary damages respectively were left undisturbed. The trespass arose out of a single event whereas Timothy McDonald was the victim of multiple interferences. It is convenient to mention that in Stepanovic the Court (Kirby P, Priestley JA) affirmed the appropriateness of taking into account on the question of aggravated damages both the conduct of the assailant and the subsequent conduct of the litigation. So far as the latter is concerned, I have mentioned that the hearing was conducted on the basis that the commission of the assaults by Sister Adams was not disputed. The liability of the defendant for her actions was a matter of bona fide contest and I do not find the failure to concede the assaults in the pleadings was a matter of significant additional hurt to the plaintiff in all the circumstances of this case.
54 The foregoing is recorded in connection with my ultimate judgment that, in today’s terms of monetary value, damages should be assessed at $50,000. Counsel for the plaintiff specifically submitted that general and aggravated damages should combine to a figure of $150,000. That figure was, as my assessment has had to be, significantly the result of impression but I was invited to draw some comparison from the experiences of agony resulting from stroke-induced paralysis described by the author Jean-Dominique Bauby in “The Diving Bell and the Butterfly”. Ultimately damages at large must be assessed upon the evidence in a particular case gauged in the context of contemporary society and its perceived values. It would not be astonishing if perceptions failed to coincide.
55 I turn to the claim for exemplary damages. The nature of these was described by Lord Diplock in Cassell as “punishment of the defendant for his anti-social behaviour to the plaintiff”. Windeyer J in Uren v John Fairfax & Sons Limited 1966 117 CLR 118 proposed that “….. exemplary damages …… are intended to punish the defendant, and presumably serve one or more of the objects of punishment - moral retribution and deterrence.”
56 This claim of course related to vicarious liability of the defendant for the actions of the wrongdoer, Sister Adams, who was not personally sued. It is difficult to conceive that such a derivative liability would call for punishment in the circumstance that the payer of damages is liable by imputation rather than action and provides a strong basis for exercising discretion against such an award. I do not ignore that in Lamb v Cotogno 1987 164 CLR 1 the tortfeasor was indemnified under a compulsory scheme of insurance and that it was contemplated in that case that in condemning the actual wrongdoer (who was a defendant) the award of exemplary damages would appease the victim and assuage any urge for revenge. The plaintiff in this particular case by reason of his inherent developmental disability would not be capable of harbouring urges such as a desire for vengeance.
57 There is however a more important reason contra indicating an award of exemplary damages because, as the evidence of the certificates of conviction demonstrates, the wrongdoer herself has already had the criminal law brought to bear on her for her actions. In Gray v Motor Accident Commission 1998 73 ALJR 45 a joint judgment (Gleeson CJ, McHugh, Gummow and Hayne JJ) proclaimed this view:
“[40] Where, as here, the criminal law has been brought to bear upon the wrongdoer and substantial punishment inflicted, we consider that exemplary damages may not be awarded. We say ‘may not’ because we consider that the infliction of substantial punishment for what is substantially the same conduct as the conduct which is the subject of the civil proceeding is a bar to the award; the decision is not one that is reached as a matter of discretion dependent upon the facts and circumstances in each particular case.
[41] There are at least two reasons in principle why that is so.
[42] First the purposes for the awarding of exemplary damages have been wholly met if substantial punishment is exacted by the criminal law. The offender is punished; other are deterred. There is, then, no occasion for their award.
[43] Secondly, considerations of double punishment would otherwise arise. In R v Hoar Gibbs CJ Mason, Aickin and Brennan JJ said that there is ‘a practice, if not a rule of law, that a person should not be twice punished for what is substantially the same act’. That practice or rule would be breached by an award of exemplary damages in the circumstances described.”
58 The penalties visited upon Sister Adams were non custodial. In Gray the Court did not need to determine what extent of punishment would meet the requirement of being “substantial” but after noting that that issue did not fall for decision in that case their Honours observed:
“[46] ……….. At first sight, however, if criminal charges, alleging the same conduct as is alleged in a civil proceeding, have been brought and proved, it would be a most unusual case in which it was open to a civil court to conclude that the outcome of those criminal proceedings did not take sufficient account of the need to punish the offender and deter others from like conduct. There seems to be much to be said in favour of the views reached by a majority of the Court of Appeal of New Zealand in Daniels v Thompson that for a civil court to revisit a sentence imposed in a criminal court for the purpose of deciding whether the criminal received his or her just deserts is ‘contrary to principle’ and must ‘undermine the criminal process’.”
59 There is some Canadian authority for the proposition that where a defendant has been conditionally discharged in criminal proceedings exemplary damages may remain available: Connors v Doak 1978 24 NBR 2d (85) ( a case of conversion of goods) but I would doubt that a conditional discharge under s 662.1(1) of the Criminal Code of New Brunswick is necessarily an equivalently substantial penalty to deferral of sentence on conditions pursuant to s 558 of the Crimes Act.
60 I derive guidance from the dictum in Gray and am fortified by the expressed favour for the approach in New Zealand revealed in Daniels and in addition to the reasons already stated, I would decline to enhance the damages which I have assessed by an element of exemplary damages.
61 The first alternative presentation of the plaintiff’s case is as an action in negligence asserting vicarious liability of the defendant arising out of the omissions of nursing staff and hospital assistants to report their observations of abuse of the plaintiff by Sister Adams to authority. It was conceded by counsel that, even if this cause of action were to be made out it could not attract exemplary damages.
62 It is implicit in the case framed in this fashion that sooner reporting would have avoided some of the damage to the plaintiff. A staff member obviously could only report what he or she saw and thus even the promptest reporting could not logically have avoided the first incident even if it was observed. There was an understandable lack of precision about when any event seen by the various witnesses took place. The state of the evidence makes it quite impossible therefore to find when any particular assault took place and consequently what damage might have been avoided if early reporting had been made. By reason of the deficit in evidence, there exists also an obstacle to finding causation of damage by any specific failure to report and a general allegation of failure to report does not sustain the cause of action. Even if this conclusion be incorrect, I would not assess the damages any differently from those which I have determined in relation to the cause of action pleaded in trespass.
63 The second alternative cause of action can briefly be described as couched in terms of an action for negligence arising out of the alleged failure of the Department of Family and Community Services to devise, institute and maintain systems of operation so as to avoid unnecessary risk of injury to the plaintiff. Over objection, I permitted the plaintiff to file amended particulars of negligence in advancement of the claim in these terms:
“(i) Failed to exercise sufficient supervision over its nursing staff to prevent unlawful assaults upon intellectually disabled residents in its care;
(ii) Failed to ensure the safety of all disabled residents at Strathallen;
(iii) Failed to ensure that nursing staff at Strathallen delivered nursing service to residents in accordance with a standard expected of skilled and competent nursing staff;
(iv) Failed to adequately train staff to intervene to protect residents whose welfare was being abused by other staff;
(v) Failed to maintain an adequate grievance procedure for staff to notify the management of the Department of Family & Community Services of the misconduct of other staff members;
(vi) Failed to prevent any further assaults occurring on residents after becoming aware of such assaults on residents;
(vii) Failed to ensure that the plaintiff’s family was alerted to any abuse to which he was subjected immediately upon becoming aware of such abuse;
(viii) Failure to guard against a known and documented risk of abuse within facilities such as Strathallen;
(ix) Failed to put in place systems or procedures which would have avoided the assaults upon the plaintiff or the continuation of them;
(x) Failed to report abuse which had been observed or witnessed;
(xi) Failed by investigation or otherwise to uncover abuse to the plaintiff when behavioural changes indicative of abuse were drawn to the attention of Mr Livermore and/or the hospital administration;
(xii) Failed to have systems or procedures in relation to abuse or the reporting of it or its possible indicia that would have brought such matters as Mr Livermore drew attention to, to the attention of the Executive Officer;
(xiii) Allowing verbal abuse to continue unchecked;

(xiv) Failing to treat verbal abuse as a warning of the possible or likely occurrence of other abuse;

(xv) Failing to enquire of staff as to whether abuse or indicia of abuse had been observed.”

64 The plaintiff’s case on this cause was sought to be supported by a considerable volume of documents in handbooks, reports, policy statements and departmental memoranda. It was contended by the defendant that there was no evidence of what the system should have been and that, in the absence of expert evidence, I could not by a process of divination as it were, determine what a reasonable system should have been. There is evidence of the institution of new systems and procedures which, if they had been in effect, probably would have brought Sister Adams’ misdeeds to attention earlier and probably would have prevented at least some of them. It was argued by the defendant that the change emerged upon the introduction of new legislation, and that is historically so, but it was not suggested that legislation was an essential pre-requisite to adoption of more effective systems for the reporting of and the prevention of misconduct by staff. The new system demonstrated what might have been done if minds had at the relevant time been turned to the possible problem. I do not mean to assert that every aspect of change wrought by what was referred to as the “new Act” could have occurred in the absence of the statute but there was no inhibition on introducing some effective procedures at an earlier date.
65 Some forceful submissions were advanced on behalf of the plaintiff asserting that the removal of Strathallen Centre from the schedule to the Public Hospitals Act was germane to the causation of the plaintiff’s damage. I specifically reject the contention that legislative action or authorized “de-gazettal” was an element in founding any private right in the plaintiff.
66 I do not regard it as necessary to analyse the issues raised on this cause of action in detail because the outcome of the litigation by way of verdict will not alter and it suffices to record that I find that on the probabilities some of the assaults by Sister Adams would have been avoided if reasonable attention had been paid to devising an adequate system for having the misbehaviour of staff reported and an adequate system instituted for ensuring appropriate response to report of such misbehaviour. Part of any such system would involve communicating to staff what their responsibilities were in relation to reporting and establishing alternative means of so doing so that rigid adherence to a chain of authority would not frustrate reporting that was needed where the alleged miscreant was a superior to the would-be informant. That conclusion does not require expertise or specific knowledge of any particular bureaucratic structure.
67 In my view therefore, subject to the claims for aggravated and exemplary damages in the terms pursued, the plaintiff’s success on this cause of action would not attract compensatory damages greater than would be payable in respect of the trespass. Non-punitive damages for trespass and negligence arising out of the same events are not recoverable cumulatively and it would become something of a hypothetical exercise to further pursue this alternative cause of action. I would not enhance the compensatory damages consequent upon a finding in favour of the plaintiff in negligence. The negligence of the defendant did not heighten the injuries or sense of injury by the manner or motive whereby the tort was committed. Appeasement and assuagement of desire for revenge are not relevant in this case. This cause of action is framed to impose a direct responsibility upon the defendant for acts and omissions different from its vicarious liability for the acts of Sister Adams which were capable of heightening the nature of injury.
68 The claim for exemplary damages based upon this cause of action is postulated differently from that referrable to the claim for such damages referrable to trespass. Attention was drawn to the decision of the House of Lords in Rookes v Barnard 1964 AC 1129 where one of the identified categories in which such damages might be awarded was described as oppressive, arbitrary or unconstitutional acts by government servants. Significant aspects of that decision have not been followed in Australia particularly relating to the limitation of categories in which exemplary damages might be awarded (see Uren ) but therefore, so the argument ran, so much more emphatic would be the call to award such damages where there was conduct fitting the above description by government servants.
69 Although the remarks were provoked by reference to debate about whether trespass could be committed negligently and noting that in the instant case the question arose of an intentional wrong being committed by inadvertence, in the joint judgment in Gray their Honours recorded these observations which are pertinent:
“[22] ……..For present purposes it is enough to note two things. First, exemplary damages could not properly be awarded in a case of alleged negligence in which there was no conscious wrongdoing by the defendant. Ordinarily, then, questions of exemplary damages will not arise in most negligence cases be they motor accident or other kinds of case. But there can be cases, framed in negligence, in which the defendant can be shown to have acted consciously in contumelious disregard of the rights of the plaintiff or persons in the position of the plaintiff. Cases of an employer’s failure to provide a safe system of work for employees in which it is demonstrated that the employer, well knowing of an extreme danger thus created, persisted in employing the unsafe system might, perhaps, be of that latter kind. No doubt other examples can be found.”
70 The second matter adverted to by their Honours was the circumstance that in Gray the action was pleaded in negligence but appeared to have been conducted at trial by all concerned as an action in trespass.
71 The plaintiff again faces the obstacle on this issue that the asserted negligence of the defendant was inconsequential without the causative acts of assault by Sister Adams for which she has been dealt with under the criminal law. Arguing that the principles discussed in Gray presented no barrier to recovery of exemplary damages counsel for the plaintiff contended that the evidence showed a contumelious disregard by the defendant for the rights of the plaintiff in several respects. A vigorous attack was launched against Mr Boyle who was, effectively, the chief executive on site at Strathallen. It was said that his lack of knowledge was “breathtaking”. In cross examination he conceded that he was unaware of some nominated reports described later in submissions by counsel as major inquiries identifying the risk of abuse and the need for systems to be put in place to detect and avoid it. Included, for example, was a review of standards of patient care in 5th Schedule Hospitals dated 1987 by a ministerial advisory committee chaired by Ms Merilyn Walton the manager of the complaints unit within the Department of Health. Although the document is now no doubt in public domain (Exhibit NN has a State Library catalogue number imprinted on it) it is a matter of speculation whether it was circulated to Mr Boyle. The title of the committee suggests that any report would be directed to the minister and no doubt distribution thereafter would be at the minister’s discretion and direction.
72 It was argued to be relevant that the defendant through Mr Boyle failed to report Sister Adams’ conduct to police and failed to forward information about it to the Nurses Registration Board until urged by Mrs McDonald so to do. Mention was made of the absence of thanks by way of acknowledgment to those who did complain and the apparent absence of inquiry into the failure of Mr Mills to react to complaint. I have elsewhere canvassed the reasonableness of requiring complaint in writing before reacting or acting. The accumulation of these and other matters which it is unnecessary to tabulate was said to create a situation which ought to be gauged against the circumstances that “no change was instituted of a sort that would rectify the gross and known deficiencies which had demonstrably permitted a horrendous situation to develop concerning Sister Adams.”
73 The evidence does not justify that language. The assaults were despicable by reason of the helplessness of the victim but the delay in detecting what had happened and removing the perpetrator represented a system failure rather than oppressive, arbitrary or unconstitutional acts by goverment servants. There can be no reasonable complaint about response once the matters were drawn to attention. Leaving aside the approaches said to have been made to Mr Mills, Sister Adams had been removed from cottage 5 within about a week of the matter being raised. Even if one took a time span from the approaches to Mr Mills it extends to about two weeks. I reject the claim for exemplary damages.
74 In support of submissions counsel for the plaintiff handed up a document headed “Particulars of Exemplary Damages”. I have not dealt seriatim with the thirty six various expressions paragraphed therein. Neither individually nor cumulatively do I find that the contentions support an award of exemplary damages.
75 I will refer the final ingredient of damage claimed for convenience as “voluntary care”. A calculation was submitted manifesting the cost of provision of care at commercial rates for the plaintiff for 24 hours per day carers between August 1990 when he was withdrawn from Strathallen until October 1996 when he entered the St John of God Hospice at Goulburn from where he transferred to his current residence. During that span the plaintiff was cared for by Mrs McDonald with assistance from other family, principally Mrs Hogan. There were periods of respite in fact at Strathallen but it was stated, without demur on behalf of the defendant that the rates were such that arithmetical discounts would produce no significant variation to the quantum of claim which was for many hundreds of thousands of dollars.
76 A fundamental determination must be made of the reasons for (and the reasonableness) of the removal of the plaintiff from Strathallen in August 1990 which was more than six months after he could possibly be at any risk from assault by Sister Adams. The decision for removal was made by Mrs McDonald. As abovementioned, it appears that she had formed the impression that there were no more than two charges of assault to be brought against the offender although I am not satisfied that information in those terms, that the charges were limited to two, was conveyed to her by any representative of the defendant. I accept that she had come to believe this although it is not clear why the number of assaults, as distinct from the nature and quality of actions constituting any assault, should have been regarded by her as of over-arching importance. The trigger for removal of the plaintiff from Strathallen seems to have been information from Ms Meredith on the occasion of her visit. Mrs McDonald gave this evidence:
“Q. At some point in time you took Timothy out of Strathallen?
A. Yes, that’s right.
Q. When was that?
A. Would have been very shortly after Jo Meredith came and told me the charge. I couldn’t believe it and I took him out but I can’t remember exactly.
Q. And you are refer to the conversation you told the court about before the adjournment?
A. Yes, that’s right.
Q. That occurred, as you believe, in or about August of 1990?
A. Mmm.
Q. Why did you take him out then?
A. Well, I was only told, I was always under the impression that was only two charges and that’s all I had been told and when I was told I found it so unbelievable that anybody could do anything like that and I was upset for Timothy. I thought why should anybody do anything like that when we have never hurt him and I just thought it was unfair.
Q. Up until that point when you got this information from Miss Meredith how significant did you think the assaults had been based on what you had been told by –
A. I was told there was only the two and that’s all I believed and I just, I was told I just had to wait and that’s what I did and I was never told anything and I never asked because I was told I wasn’t to and I just let it go and when this all came out it was a shock.”
77 And in cross examination she responded:
“Q. Now in August 1990 you decided to take him out of Strathallen as a full-time person?
A. That’s true.
Q. You spoke with Mr Livermore about that, did you not, about that decision?
A. No I probably told him.
Q. You told Mr Livermore all right, did Mr Livermore give you any advice?
A. I can’t remember.
Q. Did Mr Livermore suggest to you that you should leave him in Strathallen?
A. I can’t remember sir.
Q. Did Mr Livermore say to you something along the lines or reassure you about his safety?
A. I can’t remember that he might have done, I can’t remember.”
78 And:
“Q. You didn’t speak to anybody at Strathallen before you took him out?
A. If I had spoken to somebody it would have been Mr Livermore, I must have said I want to take him home.
Q. You didn’t take any advice or counsel?
A. I didn’t get any advice or counsel.
Q. Did you ask for any counsel or advice?
A. I didn’t know there was any given and I wasn’t offered it.
Q. Did you ask Mr Livermore whether he could give yo some advice?
A. We had talks but he didn’t give me advice that much.
Q. He didn’t give you advice that much?
A. It was only in talking, I didn’t know there was any services I could get.
Q. What about from Mr Livermore, he spent quite a lot of time with you at that stage?
A. He would come in.
Q. Spend half an hour, sometimes an hour?
A. Come to the house, stay an hour sometimes.
Q. Didn’t you and he talk about the possibility of taking Tim out of Strathallen?
A. What date was this supposed to be?
Q. August or so?
A. I can’t remember sir if I did. I know I was very upset when I heard the charges and what I said and the charges, I can’t now.”
79 And:
“Q. Is this the situation that you do recall that Mr Livermore advised against you taking Tim out of Strathallen?
A. I can’t remember that.
Q. Don’t remember that?
A. No all I know I was emphatic myself and I would not have listened to anyone else.”
80 Mrs McDonald had noticed no change in the plaintiff between February (by which time Sister Adams had left) and August when he was removed by her. In answer to express question she said she thought he was the same (transcript p 172 l 27).
81 Whilst the view of Gibbs J (as he then was ) expounded in Griffiths v Kerkemeyer 1976-7 139 CLR 161 @ 165 that damages of the species now under discussion are payable to a plaintiff only to the extent that the need was or may be productive of financial loss was not followed in Van Gervan v Fenton 1992 175 CLR 323 and thus his proposition of two stage approach, first is it reasonably necessary to provide the services and second, would it be reasonably necessary to do so at cost is disapproved, it is disapproved only to the extent of the second stage question. It remains essential for the plaintiff to show that the services received were to fulfil a tort induced need: Nguyen v Nguyen 1990 169 CLR 245.
82 Absent tort, the plaintiff would have received care at Strathallen. I find the evidence establishes that the removal from there was not for the purpose of fulfilling any tort induced need but was the consequence of a choice by Mrs McDonald inspired by her upset and anger and it follows that the notional incurring of costs for voluntary services was not relevantly caused by breach of duty by the defendant: cf CES v Superclinics (Aust) Pty Limited 1995 38 NSWLR 47 @ 84D.
83 Counsel referred me to Johnston v G.I.O. Unreported Finlay J 2 Dec 1993. I do not regard the award of damages for the added cost of caring for a disabled child born to a tortiously brain damaged claimant as providing a precedential imperative for the damages claimed in this aspect of this case.
84 Accordingly I find the plaintiff is entitled to damages of $53,333. The plaintiff is himself, of course, oblivious to this litigation. He was not however, as the evidence shows, insensitive to the feelings of pain and discomfort and he is not disentitled to damages as if he were insensible: contrast Skelton v Collins 1996 115 CLR 94. The circumstance that he has no memory of the tortious occurrences (as I find to be the case) does not operate to reduce the damages: cf Del Ponti v Del Ponti 1987 11 NSWLR 498. I recognize as Kirby P (as he then was) discussed @ p 503 et seq that the treatment of damages in this category has not been wholly satisfactory but given the circumstances of this case I do not perceive entry of judgment for the plaintiff as I have proposed as being other than just between the parties.
85 There are outstanding issues including interest and the cost of administering investment of the verdict, possible application for payment out and the question of costs. I indicated at the conclusion of the hearing that liberty to apply would be granted in respect of outstanding matters and I so order.
86 Subject to the foregoing I set the amount of the plaintiff’s damages at $53,333 as stated and I will fix a date for dealing with ancillary questions and the formal entry of judgment.

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Last Modified: 06/30/2000