Riley v State of Queensland
[2013] QMC 13
•8 August 2013
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Riley v State of Queensland [2013] QMC 13
PARTIES:
WILLIAM FREDERICK RILEY
(plaintiff/respondent)
v
STATE OF QUEENSLAND
(defendant/applicant)
FILE NO/S:
M176/12
DIVISION:
Magistrates Court
PROCEEDING:
Claim - Application for summary judgment
ORIGINATING COURT:
Magistrates Court at Toowoomba
DELIVERED ON:
8 August 2013
DELIVERED AT:
Toowoomba
HEARING DATE:
11 July 2013
MAGISTRATE:
Carroll JD
ORDER:
The Application is dismissed. The Applicant is to pay the Respondent’s costs of the Application to be assessed.
CATCHWORDS:
TORTS – NEGLIGENCE – psychological injury caused by keeping of incorrect personal information – application for summary judgment by defendant on grounds plaintiff has no real prospect of succeeding in claim
COUNSEL:
Kelly for the Applicant
Taylor for the Respondent
SOLICITORS:
Crown Solicitor for the Applicant
CW Hooper and Hooper for the Respondent
The Application
This is an application by the Defendant for the following orders:-
(i) Pursuant to Rule 293 of the Uniform Civil Procedure Rules 1999 judgment be given to the applicant/defendant as:
(i) The plaintiff has no real prospect of proceeding on all or a part of the plaintiff’s claim; and
(ii) There is no need for a trial of the claim or a part of the claim
Alternatively:
(ii) That the Claim and Statement of Claim of the respondent/plaintiff filed on 24 July 2012 be struck out pursuant to Rule 171(1)(a) of the Uniform Civil Procedure Rules 1999 as the pleadings have disclosed no reasonable cause of action with no leave to replead.
(iii) Pursuant to Rule 293 or Rule 171(2) of the Uniform Civil Procedure Rules 1999, the respondent/plaintiff pay the applicant/defendant’s costs of and incidental to the proceeding and the application calculated on an indemnity basis to be agreed or assessed.[1]
[1]Application filed 19 March 2013
The Rules
Rule 293 of the Uniform Civil Procedure Rules is in these terms –
“Summary judgment for defendant
(1) A defendant may, at any time after filing a notice of intention
to defend, apply to the court under this part for judgment
against a plaintiff.
(2) If the court is satisfied—
(a) the plaintiff has no real prospect of succeeding on all or
a part of the plaintiff’s claim; and
(b) there is no need for a trial of the claim or the part of the
claim;
the court may give judgment for the defendant against the
plaintiff for all or the part of the plaintiff’s claim and may
make any other order the court considers appropriate.”
Rule 171(1) and 171(2) are in these terms –
“Striking out pleadings
(1) This rule applies if a pleading or part of a pleading—
(a) discloses no reasonable cause of action or defence; or
(b) has a tendency to prejudice or delay the fair trial of the
proceeding; or
(c) is unnecessary or scandalous; or
(d) is frivolous or vexatious; or
(e) is otherwise an abuse of the process of the court.
(2) The court, at any stage of the proceeding, may strike out all or
part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis.”
In order to grant judgment pursuant to Rule 293 the Court has to be satisfied that there is “no real prospect of succeeding on all or part of the Plaintiff’s claim and there is no need for a trial”. In Deputy Commissioner of Taxation v Salcedo [2005] QCA 227, McMurdo P said at paragraph 3 said –
“nothing in the UCPR … detracts from the well established general principle that issues raised in proceedings will be determined summarily only in the clearest of cases.”
At paragraph 11, Williams JA said –
“The words ‘no real prospect of it succeeding’ do not need any amplification, they speak for themselves. The word ‘real’ distinguishes fanciful prospects of success or … They direct the Court to the need to see whether there is a ‘realistic’ as opposed to a ‘fanciful’ prospect of success.
…
This is simple language, not susceptible to much elaboration, even forensically. If there is a real prospect of success, the discretion to give summary judgment does not arise merely because the Court concludes that success is improbable.”
The Plaintiff’s Claim
By his amended Statement of Claim filed on 13 June 2013 the Plaintiff alleges as follows:-
(i) He was born on 17 March 1946.[2]
[2]Para 1 of Amended Statement of Claim
(ii) He and his wife Rae Maralyn Riley, applied on 7 August 2009 to the Department of Child Safety for kinship carer status for their grandchildren Bianca Jane Qualischefski and Trent William Riley.[3]
[3]Para 2(b) of Amended Statement of Claim
(iii) The Plaintiff and his wife met with Ms Steel and Ms Gurney on 7 August 2009 and they told him and his wife that the Plaintiff was responsible for sexually abusing his grandchildren.[4]
[4]Para 4(c) of the Reply
(iv) The Plaintiff told Ms Steel and Ms Gurney at the meeting on 7 August 2009 that he had not sexually abused anyone and requested the information be reviewed as it was wrong.[5]
(v) The Defendant rejected the application by the Plaintiff and his wife.[6]
(vi) On 14 December 2009 the Plaintiff made a Freedom of Information request in relation to the rejection by the Defendant of his carer application.[7]
[5]Para 4(d) of the Reply
[6]Para 2(c) of the Amended Statement of Claim
[7]Para 2(d) of the Amended Statement of Claim
The Department of Child Safety documents released pursuant to the Freedom of Information request stated that the Plaintiff:-
(a) had been convicted of raping his daughter Belinda;
(b) had fathered a child (Bianca) as a result of raping Belinda;
(c) was currently serving a term of imprisonment for the rape of Belinda;
(d) had been convicted of sexually molesting his step-granddaughter (Bianca Jane Qualischefski) “the information”.[8]
[8]Para 3 of the Amended Statement of Claim
On or about 5 March 2010 the Plaintiff informed the Defendant’s servants or agents by telephone that the information was untrue.[9]
[9]Para 4 of the Amended Statement of Claim
The defendant refused to withdraw its reliance upon the untrue information or otherwise investigate the inaccuracy of or correct the information.[10]
[10]Para 5 of the Amended Statement of Claim
The Defendant did not review the accuracy of the information until 13 September 2010.[11]
[11]Para 4(g) of the Reply
On 15 September 2010 the Minister for Child Safety and Sport admitted in the Queensland State Parliament that the Defendant had wrongly identified the Plaintiff and that the Plaintiff’s complaint regarding the inaccurate information was not acted upon and the mistake corrected by the Defendant until Monday, 13 September 2010.[12]
[12]Para 4(h) of the Reply
The Acting Director General of the Department of Child Safety, Ms Betty Kill, eventually confirmed the Department had made an error.[13]
[13]Para 18 of the Notice of Claim Part 1 dated 14 October 2010
As a consequence of the information being untrue and the Defendant’s refusal to correct the information the Plaintiff sustained a psychiatric injury in the form of an adjustment disorder with mixed anxiety and depressed mood (chronic).[14]
[14]Para 8 of the Amended Statement of Claim
The Plaintiff alleges that the Defendant owed it a duty to:-
(a) take reasonable care to avoid psychological harm to the Plaintiff when assessing the carer application;
(b) take reasonable care to accurately assess the carer application; and
(c) take reasonable steps to correct the information.[15]
[15]Para 9 of the Amended Statement of Claim
The Defendant’s Case
The Defendant denies the allegations contained in paragraph 9 of the Amended Statement of Claim because it says that he did not owe a duty to the Plaintiff in law or statute.[16]
[16]Para 9 of the Defence.
The Defendant says that this case is similar to that of Sullivan v Moody [2001] HCA 59.
In Sullivan, the Court also heard an appeal of Thompson where the facts were very similar.
The facts in Thompson
In Thompson, the Plaintiff was the father of three young boys. The First and Second Defendants were medical practitioners employed by the Sexual Assault Referral Centre at the Queen Elizabeth Hospital in Woodville, South Australia. The Third Defendant was the hospital. The Fourth Defendant was the State of South Australia which operated the Department of Community Welfare.[17]
[17]Para 4 in Sullivan
During 1986 the Plaintiff’s wife, on separate occasions, attended the Sexual Assault Referral Centre with the boys. Doyle CJ noted that it was common ground that the medical practitioners who examined the boys did so at the instigation of a person or persons employed by the Department of Community Welfare. One of the boys was examined by the First Defendant, the other boys were examined by the Second Defendant. Both the First and Second Defendants concluded, and reported to the Department of Community Welfare, that the boys appeared to have been sexually abused.[18]
[18]Para 5 in Sullivan
Further investigations were carried out by officers of the Department of Community Welfare who also concluded that there had probably been sexual abuse. They, in turn, referred the matter to the Police who charged the Plaintiff with sexual offences. Those charges were ultimately dropped but in consequence of the allegations and charges the Plaintiff suffered shock, distress and psychiatric harm, and consequential personal and financial loss.[19]
[19]Para 6 in Sullivan
The Plaintiff alleged that each of the medical practitioners “owed him a duty of care to carry out their duties and responsibilities and in particular the examination and diagnosis of the person and in particular the children suspected of having been sexually abused … with due care, skill, discretion and diligence” … In a number of respects the Defendants were said to have acted negligently in their examination, diagnosis and reporting. The Third and Fourth Defendants were claimed to be vicariously liable for the negligence of the medical practitioners.[20]
[20]Para 7 in Sullivan
It was further alleged that the State of South Australia owed the Plaintiff a duty to carry out its responsibilities in relation to the investigation of sexual abuse of children with due care, skill and discretion and diligence and the officers of the Department of Community Welfare who investigated the matter are alleged to have behaved negligently.[21]
[21]Para 8 in Sullivan
Doyle CJ noted that the circumstances of the matter were such that the Plaintiff would be regarded as the probable or possible perpetrator of the abuse.[22]
[22]Para 9 in Sullivan
It was alleged that the employees … gathered and used information about possible sexual abuse of the children without making adequate enquiry as to those facts, without exercising proper care and without following appropriate procedures for such cases. It was alleged that the employees of the Department failed to establish appropriate protocols for the diagnosis of sexual abuse of children and they failed to establish proper procedures to validate diagnoses of sexual abuse.[23]
[23]Para 9 in Sullivan
The Facts in Sullivan
The Plaintiff was the father of a young daughter. The daughter had said some things to her mother (the Plaintiff’s wife) and her grandmother, which led the mother to contact the Crisis Care branch of the Department of Community Welfare. She was referred by the Department to the Adelaide Childrens Hospital, which in turn referred her to the Sexual Assault Referral Centre at the Queen Elizabeth Hospital.[24]
[24]Para 10 in Sullivan
The First Defendant was a medical practitioner employed at the Sexual Assault Referral Centre. She examined the daughter and expressed the conclusion that the daughter had suffered sexual abuse. The Second and Third Defendants were social workers who were employed at the Sexual Assault Referral Centre and Adelaide Childrens Hospital, respectively.[25]
[25]Para 11 in Sullivan
For the purposes of that appeal the medical practitioners and the social workers were alleged to have acted negligently in examining the child and investigating the possibility of sexual abuse. No criminal charges were laid but the allegations were believed by the Plaintiff’s wife. They resulted in the breakdown of the marriage and were pursued in Family Court proceedings. They were resolved, in that Court, in favour of the Plaintiff.[26]
[26]Para 12 in Sullivan
The High Court Decision in Sullivan
In the Thompson appeal the High Court was considering an appeal from the Full Court of the Supreme Court of South Australia which had dismissed an appeal from a decision of the Master who struck out the Plaintiff’s claim. In the Sullivan appeal it was accepted, subject to one qualification, that the decision in Thompson meant that the appeal must fail and it was dismissed.[27]
[27]Para 1 in Sullivan
In considering the appeals of Thompson and Sullivan, the High Court was considering a decision of the Supreme Court of South Australia in 1996 in the case of Hillman v Black in which the Full Court decided that the Defendants in circumstances similar to the Defendants in the Thompson and Sullivan appeals, did not owe a duty of care to the plaintiff.[28]
[28]Para 2 in Sullivan
In Sullivan the Court said –
“The circumstances that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.[29]
…
The statutory scheme that formed the background to the activities of the present respondents was, relevantly, a scheme for the protection of children. It required the respondents to treat the interests of the children as paramount. Their professional or statutory responsibilities involved investigating and reporting upon, allegations that the children had suffered, and were under threat of, serious harm. It would be inconsistent with a proper and effective discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who were suspected of being the sources of that harm …”[30]
[29]Para 60 of Sullivan
[30]Para 62 of Sullivan
The Applicant also relied upon the decision of the High Court of Australia in Tame v New South Wales [2001] CLR 317. The facts of that case were that in January 1991 Ms Tame was driving a motor vehicle which was involved in an accident with another vehicle being driven by Mr Lavender. The investigating police officer completed a report and left blank sections thereof relating to the blood alcohol content of the drivers. In February 1991 another police officer completed the report attributing a blood alcohol content of .14 percent to each of the drivers when in fact it was only Mr Lavender who had a blood alcohol content. Ms Tame did not have a blood alcohol content at all. This was corrected in late March 1991. Before the correction was made the report was released to NZI Insurance, the insurer of Mr Lavender’s vehicle.[31]
[31]Paras 151 to 157 of Tame v New South Wales
In May 1992 NZI became reluctant to pay Ms Tame’s physiotherapy fees and this became a source of anxiety for her. She conferred with her solicitor in June 1992 and he told her of the incorrect police report but which had been corrected. This upset her greatly.[32]
[32]Paras 151 to 157 of Tame v New South Wales
In July 1992 NZI’s solicitors confirmed to Ms Tame that the report had been corrected.[33]
[33]Paras 151 to 157 of Tame v New South Wales
In early 1993 the solicitors obtained an apology from the Police Service and an assurance that the mistake had been corrected.[34]
[34]Paras 151 to 157 of Tame v New South Wales
Ms Tame became obsessed with the mistake. She feared that she had been punished for something she had not done in the past. She found it difficult to sleep, experienced shame, guilt, stress and depression for which she sought counselling. In 1995 her psychiatrist diagnosed her condition as a psychotic depressive illness.[35]
[35]Paras 151 to 157 of Tame v New South Wales
Ms Tame brought proceedings against the State of New South Wales and the investigating police officer. She was initially successful but that decision was reversed on appeal. She appealed to the High Court of Australia.[36]
[36]Paras 151 to 157 of Tame v New South Wales
The High Court unanimously rejected her appeal.[37]
[37]Paras 151 to 157 of Tame v New South Wales
Gummo and Kirby JJ said –
“It is unlikely that an investigating police officer owes a duty of care to a person whose conduct is under investigation. Such a duty would appear to be inconsistent with the police officer’s duty, ultimately based on the statutory framework and anterior common law by which the relevant police service is established and maintained, fully to investigate the conduct in question.”[38]
[38]Para 231 of Tame
They continued –
“No case in negligence can be made out against the respondent in respect of the conduct of Acting Sgt Beardsley (the officer who inserted the incorrect information in the report). This is because a reasonable person in Acting Sgt Beardsley’s position would not have foreseen that his conduct in carelessly completing the Traffic Collision Report involved a risk of causing a recognisable psychiatric illness to the appellant. It may be conceded that it was reasonably foreseeable that such carelessness may cause surprise, distress or anger, particularly as the report was likely to be distributed to the appellant’s insurer and could be accessed, for a fee, by members of the public. However it was also reasonably foreseeable (a) that an erroneous recording of the appellant’s blood alcohol level, once detected, would promptly be rectified, given the obvious nature of an error which attributed to both drivers precisely the same blood alcohol content and (b) that, if pressed, the Police Service would offer a formal apology in respect of any such error, as subsequently occurred here.[39]
But it was not reasonably foreseeable that a person in the position of Ms Tame would sustain a recognisable psychiatric illness from a clerical error which she was told was a mistake that had been rectified and in respect of which she had received a formal apology. The Appellant’s reaction was extreme and idiosyncratic. The risk of such a reaction was far fetched or fanciful and in the manner indicated in Wyong Shire Council v Shirt, was not one which the law of negligence required a reasonable person to avoid.”[40]
[39]Para 232 of Tame
[40]Para 233 of Tame
Submissions for the Respondent/Plaintiff
This case is factually very different to Sullivan v Moody (2001) 207 CLR 562 and Tame v New South Wales [2002] HCA 35.[41]
[41]Para 6.1 of Plaintiff’s submission
The Defendant knew that the information it relied upon was untrue and that it failed to correct the information until 13 September 2010. In Sullivan of course the defendant did not know, or have the means of knowing that the sexual abuse allegations were untrue.[42]
[42]Para 6.1.1 of Plaintiff’s submission
In Tame (drink driving) it was a clerical error, a mistake that was corrected quickly. Here the Defendant could determine the accuracy of the information because it knew of the matters in paragraph 10 of the ASOC. The Defendant has been more than careless.[43]
[43]Para 6.1.2 of Plaintiff’s submission
The Defendant had direct dealings with Mr Riley and not a third party.[44]
[44]Para 6.1.3 of Plaintiff’s submission
There is no provision in the Child Protection Act 1999 regarding protection from civil liability in certain circumstances.[45]
[45]Para 6.1.4 of Plaintiff’s submission
There is no prejudice to the children as they were returned to the mother.[46]
[46]Para 6.1.5 of Plaintiff’s submission
There is no intolerable burden of liability. Liability here specifically relates to the Defendant refusing to correct untrue information despite knowing, or having the means to determine that the information was untrue.[47]
[47]Para 6.1.6 of Plaintiff’s submission
The Defendant has a duty to amend information under s 54E of the Freedom of Information Act 1992.[48]
[48]Para 6.1.7 of Plaintiff’s submission
In this matter to impose a common law duty of care on the Defendant is not inconsistent with the proper function of the Child Protection Act 1999, this is because:-
(i) The children were returned to the mother’s care. There was never any conflict between the interests of the child and Mr Riley;[49]
(ii) The documentation did allow the Defendant to ascertain that the information was untrue and in these circumstances (because it knew, or had the means of knowing) there is no inconsistency with the proper function of the Child Protection Act 1999.[50]
[49]Para 6.2.1 of Plaintiff’s submission
[50]Para 6.2.2 of Plaintiff’s submission
Statutory Provisions
As in the cases of Thompson and Sullivan, the Defendant is responsible for the management of the Department of Child Safety set up under the Child Protection Act 1999. Its equivalent in South Australia is the Department of Community Welfare set up under the Community Welfare Act 1972.[51]
[51]Para 19 of Sullivan
The purpose of the Child Protection Act 1999 “the Act” is to provide for the protection of children.[52]
[52]S. 4 Child Protection Act 1999
The principles under which the Act is to be administered are that the welfare and the best interests of the child are paramount.[53]
[53]S. 5(1) of the Act
The purposes of the Act are similar to those of the corresponding South Australian legislation.[54]
[54]See para 20 of Sullivan
Discussion
The information was created by officers of the Department of Child Safety as part of their duty to fulfil the purpose of the Act which is to protect children from harm and to apply the principles that the interests of the child are always paramount. Accordingly, “the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that class of persons would impose upon them conflicting claims or obligations”.[55] Á fortiori, where the other class of persons was the apparent perpetrator of the harm from which the Department was required to protect the children.
[55]Para 60 of Sullivan
For the reasons given in Sullivan at paragraphs 60 and 62 and of Tame at paragraphs 231 to 233, I am satisfied that the defendant did not owe a duty of care to the Plaintiff to protect him from psychiatric injury when preparing or creating the “information”.
However, in my view different considerations apply in relation to the second aspect of the Plaintiff’s claim, i.e. that he suffered psychiatric injury because of the refusal by the Department to remove the information. The reasons are as follows:-
(i) The “information” was false in every respect. It could not be used by the Department in a way which was consistent with the purpose of the Act or the principles to be applied under the Act. Therefore the conflict of duties and obligations referred to in paragraphs 60 and 62 of Sullivan and in paragraph 231 of Tame do not arise here.
(ii) The fact that the children were returned to their mother’s care is not really relevant because for reasons given above, even if the children remained in the care of the Department, the information could not be used for the purpose or principles of the Act because the offending information was false.
(iii) I also refer to the reasons given by Gummow and Kirby JJ at paragraphs 232 and 233 of Tame. At paragraph 232 the Judges said “However, it also was reasonably foreseeable (a) that an erroneous recording of the appellant’s blood alcohol level, once detected, would promptly be rectified, given the obvious nature of an error which attributed to both drivers precisely the same blood alcohol content and (b) that, if pressed, the Police Service would offer a formal apology in respect of any such error, as subsequently occurred here.”
(iv) In the present case, on 7 August 2009 the Plaintiff told officers of the Department that the information was wrong.[56] This rejection of the truth of the information was repeated to the Department by the Plaintiff’s wife on 9 March 2010.[57]
[56]Para 4(d) of the Reply
[57]Para 4(f) of the Reply
(v) It would have been reasonably easy and inexpensive for the Defendant to verify the Plaintiff’s complaints. The Plaintiff would have had a reasonable expectation that the offending information would be removed but the Defendant refused to remove it. In view of such an attitude displayed by the Department, it could not be said that, if pressed, the Department of Child Safety would remove the information or offer an apology. In fact, the information was not removed nor an apology made until the Minister intervened in September 2010.[58]
(vi) At paragraph 233 of the judgement, their Honours said, “It was not reasonably foreseeable that a person in a position of Mrs Tame would sustain a recognisable psychiatric illness from a clerical error which she was told was a mistake and it had been rectified and in respect of which she’d received an apology. The Appellant’s reaction was extreme and idiosyncratic. The risk of such a reaction was far fetched or fanciful and, in the manner indicated in Wyong Shire Council v Shirt it was one which the law of negligence required a reasonable person to avoid.”
(vii) In the present case the Plaintiff was not told that the offending information was a mistake. No apology was made until September 2010, 14 months after the Plaintiff told the Defendant’s Officers that the substance of the information was not true. The offending information was grossly offensive and deeply hurtful to the Plaintiff. One could imagine that the Plaintiff would be much angered and offended if he was wrongly accused of raping any woman. But to be accused, wrongly, of raping his own daughter, fathering her child and being jailed therefor and the Department refusing to correct this information despite being told on two occasions that it was false, must have been extremely hurtful to him. In my view it would be reasonably foreseeable that a person of normal fortitude would suffer a psychiatric injury upon the Defendant refusing to remove such offending material.
[58]Para 18 of Notice of Claim Part 1, para 4(h) of the Reply and Exhibit to Affidavit of William Bruce Andrew Munro sworn 10 July 2013
The Defendant also relies upon Section 159(Q) of the Child Protection Act 1999 which provides that, inter alia, where a person, acting honestly, gives information in compliance with Chapter 5A of the Act, such person is not liable civilly or criminally for giving that information.
At paragraph 54 of Sullivan, the Court said –
“The present cases can be seen as focusing as much upon the communication of information by the Respondents to the Appellants and Third Parties as upon the competence with which the examinations or other procedures were conducted. The core of the complaint by each Appellant is that he was injured as a result of what he, and others, were told. At once, then, it can be seen that there is an intersection with the law of defamation which resolves the competing interests of the parties through well-developed principles about privilege and the like. To apply the law of negligence in the present case would resolve that competition on an altogether different basis. It would allow recovery of damages for publishing statements to the discredit of a person where the law of defamation would not.”
The second aspect of the Plaintiff’s claim does not involve the giving of information or the communication of offending material to him or to others but of the refusal of the Defendant to remove the offending material for which it had no use. In my view s 59(Q) of the Child Protection Act does not help the Defendant.
Conclusion
In my view there is a real, as distinct from a fanciful, prospect of the Plaintiff succeeding on the second aspect of his claim. Accordingly I am not satisfied that there is no real prospect of the Plaintiff succeeding on part of his Claim. In my view there is a need for a trial. The Application should be dismissed and the Applicant should pay the Respondent’s costs of the Application to be assessed.
Damian Carroll
Magistrate
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