X v South Australia (No 3) - [2007] SASC 125

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
X v STATE OF SA (NO 3)
[2007] SASC 125
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Debelle and The Honourable Justice Gray)
5 April 2007
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - GOVERNMENT AND PUBLIC AUTHORITIES
Negligence - Parole Board - O, a convicted paedophile who had been released on licence pursuant to Criminal Law (Sentencing) Act 1988 s24, sexually assaulted boy aged nine years whilst on licence - whether Parole Board owed a duty of care to the appellant - if so, whether Parole Board in breach of duty of care.
Held, by majority, that no relevant duty of care owed. Appeal dismissed.

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - LOSS OF EARNINGS AND EARNING CAPACITY
Whether damages payable to appellant are limited by the fact that much of the harm suffered by the appellant was inflicted by O prior to the alleged breach of duty of care by the Parole Board.

PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - IMMUNITY FROM PROCEEDINGS
Parole Board - attributes of the Parole Board - whether the Parole Board was immune from suit as a judicial or quasi-judicial body.
Correctional Services Act 1982 ss 55, 60, 60A, 62, 63, 64, 68, 73, 74, 74AA, 75; Criminal Law Consolidation Act 1935 ss 77a, 269O; Criminal Law (Sentencing) Act 1988 ss 23, 24; Crown Proceedings Act 1992 s 5; Prisons Act Amendment Act 1969 s 5; Statutes Amendment and Repeal (Sentencing) Act 1988 s 29; Correctional Services Act Amendment Act 1990 (SA) ., referred to.
Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Dorset Yacht Co Ltd v Home Office [1970] AC 1004; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Hill v Chief Constable of West Yorkshire [1989] AC 53; Hunter Area Health Service v Presland (2005) 63 NSWLR 22; New South Wales v Godfrey (2004) Aust Torts Reports 81 - 741; Pyrenees Shire Council v Day (1998) 192 CLR 330; Rowling v Takaro Properties Ltd [1988] AC 473; Stovin v Wise [1996] AC 923; Sutherland Shire Council v Heyman (1985) 157 CLR 424; Trapp v Mackie [1979] All ER 489; X (Minors) v Bedforshire County Council [1995] 2 AC 633, applied.
Adis v Crocker [1961] 1 QB 11; Anns v Merton London Borough Council [1978] AC 728; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Atkins v Mays [1974] 2 NZLR 459; Barratt v Kearns [1905] 1 KB 504; Bretherton v Kaye and Winneke [1971] VR 111; Brodie v Singleton Shire Council (2001) 206 CLR 512; Brooks v Metropolitan Police Commissioner [2005] 2 All ER 489; Dawkins v Lord Rokeby (1875) LR 7 HL 744; Jones v Department of Employment [1989] QB 1; Lincoln v Daniels [1962] 1 QB 237; Mann v O'Neill (1997) 191 CLR 204; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; Montero v Travis (1999) 171 F 3d 757; New South Wales v Paige (2002) 60 NSWLR 371; O'Connor v Waldron [1935] AC 76; Perre v Apand Pty Ltd (1999) 198 CLR 180; R v England (2004) 89 SASR 316; R v Nelson; ex parte O'Shea (1986) 44 SASR 507; R (Giles) v Parole Board [2004] 1 AC 1; Revesz v The Commonwealth (1951) 51 SR (NSW) 63; Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; Scotto v Almenas (1998) 143 F 3d 105; Sirros v Moore [1975] QB 118; South Australia v O'Shea (1987) 163 CLR 378; Sullivan v Moody (2001) 207 CLR 562; Swan v South Australia (1994) 62 SASR 532; Tame v New South Wales (2002) 211 CLR 317; Thompson v Turbott [1962] NZLR 298; X v State of South Australia (No 2) (2005) 91 SASR 258; O'Shea v DPP (1998) 71 SASR 109; R v Wichen (2005) 92 SASR 528; Brandy v Human Rights Equal Opportunity Commission (1995) 183 CLR 245; R v Davison (1954) 90 CLR 353; The Queen v Shrestha (1991) 173 CLR 48; Veen v The Queen (No 2) (1988) 164 CLR 465; Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575; Neindorf v Junkovic (2005) 222 ALR 631; R v Lavender (2005) 222 ALR 631; Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vict) (2001) 207 CLR 72; Victorian Workcover Authority v Esso Australia Ltd (2001) 207 CLR 520; The Commonwealth v Yarmirr (2001) 208 CLR 593; Trust Co of Australia Ltd v Commissioner of State Revenue (2003) 197 ALR 297; Visy Paper Pty Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 1; X v State of South Australia (No 2) (2003) 216 CLR 1; Phelps v Hillingdon London Borough Council [2001] 2 AC 619; SB v State of New South Wales (2004) 13 VR 527; Attorney-General v Prince & Gardner [1998] 1 NZLR 262; W v Essex County Council [1999] Fam 90; Waters v Commissioner of Police for the Metropolis [2000] 1 WLR 1607; Barrett v Enfield London Borough Council [2001] 2 AC 550; B v Attorney-General of New Zealand [2004] 3 NZLR 145; D v East Berkshire NHS Trust [2004] QB 558, considered.

X v STATE OF SA (NO 3)
[2007] SASC 125
Full Court: Duggan, Debelle and Gray JJ.

DUGGAN J. The facts and the relevant legal principles are set out in detail in the judgments of Debelle and Gray JJ.
The appellant commenced proceedings against the respondent claiming damages for breach of duty of care. According to the appellant’s evidence at the trial, he was subjected to sexual abuse by Lawrence O’Shea (“O’Shea”) at a time when O’Shea was released on licence pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”).
O’Shea had been detained pursuant to an order made under s 77A of the Criminal Law Consolidation Act 1935 following a finding that he was incapable of exercising proper control over his sexual instincts. When the power to make orders of this nature was incorporated into the Sentencing Act, transitional provisions provided that orders for detention made under s 77A were deemed to have been made under s 23 of the Sentencing Act.
O’Shea was released on licence pursuant to s 24 of the Sentencing Act on 13 July 1988. The Parole Board of South Australia (“the Board”) which was established under the Prisons Act 1936 continues in existence under the Correctional Services Act 1982. The Board is required to exercise various functions under s 24 which are associated with the release on licence of persons detained under the Act. The appellant’s claim is based on alleged negligence by the Board in the discharge of its duties during the period of O’Shea’s release.
The principal issues raised on appeal are whether the Board owed a duty of care to the appellant and, if so, whether there was a breach of that duty which resulted in harm to the appellant. The trial judge was of the view that, on the facts of the case, the Board did not owe a duty of care to the appellant. However, he concluded that if, contrary to his view, a duty of care existed, there were grounds for holding that the Board would have been in breach of that duty. As no duty arose on the trial judge’s analysis, the appellant’s claim was dismissed. The appellant has appealed against the dismissal of his claim.
The duty of care relied upon by the appellant was not formulated with precision either in the statement of claim or the final address of counsel for the appellant at the trial. It was simply stated that a duty of care arose in the course of O’Shea’s release on licence when certain information concerning his activities came to the attention of the Board. It was further alleged that the Board failed to take action to prevent harm to children with whom he might come into contact. In other words, the claim was based on non-feasance.
Duty of care
It is convenient to consider first whether a duty of care was owed by the Board in a general sense having regard to the nature of the Board’s functions under the Sentencing Act.
In Graham Barclay Oysters Pty Ltd v Ryan[1] the High Court traced the developing approach of the law to the liability of governments and statutory authorities in tort following the abolition of crown immunity from tortious liability[2]. The observations of Gummow and Hayne JJ at [149] provide a convenient starting point:
An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial[3]. It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated[4]; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers[5]; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute[6].
[1] (2002) 211 CLR 540.
[2] Ibid at [11].
[3] Pyrenees Shire Council v Day (1998) 192 CLR 330 at 377 [126].
[4] Howard v Jarvis (1958) 98 CLR 177 at 183; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550-552, 556-557.
[5] Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 551; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 24-25 [44]-[46], 38-39 [91]-[93], 40-41 [100].
[6] Sullivan v Moody (2001) 207 CLR 562 at 581-582 [55]-[62].
McHugh J made similar observations[7]:
Where a plaintiff claims that a public authority owed him or her an affirmative duty of care in a situation that has not yet been recognised by the common law, the court must examine a number of matters to determine whether the duty existed. I pointed to these matters in Crimmins v Stevedoring Industry Finance Committee[8]:
·Would a reasonable public authority reasonably foresee that its act or omission, including a failure to exercise its statutory powers, might result in injury to the plaintiff or his or her interests?
·Was the authority in a position of control and did it have the power to control the situation that brought about the harm to the injured person?
·Was the injured person or his or her interests vulnerable in the sense that the injured person could not reasonably be expected to adequately safeguard himself or herself or those interests from harm?
·Did the public authority know, or ought it to have known, of an existing risk of harm to the plaintiff or, in some cases, to a specific class of persons who included the plaintiff (rather than a risk to the general public)?
·Would the imposition of the duty of care impose liability with respect to the defendant's exercise of "core policy-making" or "quasi-legislative" functions?
·Is there any supervening policy reason that denies the existence of a duty of care?
[7] Ibid at [84].
[8] (1999) 200 CLR 1 at 39 [93]. cf Todd, “Liability in Tort of Public Bodies”, in Mullany & Linden (eds), Torts Tomorrow – A Tribute to John Fleming (1998) 36, at p 55.
The factor of control was held to be of fundamental importance in determining whether a duty of care was imposed on the public authority[9].
[9] Gleeson CJ at [20]; Gummow and Hayne JJ at [150].
It is not enough for a plaintiff to point to a power in the Act. It is necessary to establish circumstances which give rise to a duty emanating from the exercise of the power[10].
[10] Ibid at [243].
As has been pointed out, the provisions relating to offenders incapable of controlling sexual instincts are contained in ss 23 and 24 of the Sentencing Act. The Supreme Court is empowered to order that a person found to be incapable of controlling his or her sexual instincts be detained in custody until further order: s 23(5). Section 24 provides for the release on licence of a person so detained. It is necessary to have regard to the legislation in the form in which it existed at the time of, and throughout the period of the release on licence. These provisions are to be found in the Sentencing Act in its original form. Subsequent amendments, some of which enlarge the powers of the Board, were enacted after the events which are relevant to the present case.
Under the relevant provisions the court could authorise the release on licence of a detained person: s 24(1). The Act did not assign any role to the Board in the making of this decision, although there was nothing to prevent it furnishing a report for the court, as was the position in the present case. The release of a person on licence was subject to such conditions as the Board thought fit to order: s 24(3).
If a person on licence committed an offence for which imprisonment was imposed, the release was automatically cancelled: s 24(10).
The Board could, on application by the Crown, vary or revoke a condition of a licence or impose further conditions: s 24(5)(a).
The Board could not cancel the release of a person on licence on its own motion. It could, on the application of the Crown, cancel the release on licence if satisfied that the person had contravened, or was likely to contravene, a condition of the licence: s 24(5)(b). There was no requirement to cancel the licence in these circumstances: this decision was left to the discretionary judgment of the Board.
The Board was not required to supervise a licensee in any practical sense; nor did it have the resources to do so. The Board was heavily reliant for its knowledge of the progress of the licensee on what was reported to it. It did not have an investigative role in the ordinary sense, although it did have power to conduct a hearing in the event that an application was made by the Crown for the cancellation of a person’s release on licence: s 24(6).
The discretionary nature of the Board’s role in fixing licence conditions and deciding, on a Crown application, whether to revoke a licence in the event of a breach or apprehended breach is readily apparent from the legislation. I have pointed out that, at the time of the relevant events, the Board could not revoke the release on licence on its own motion. It was left to the Crown to take that initiative. This emphasises the curial nature of the Board’s functions. By saying that, I do not imply that the Board is a judicial body[11]. However, the Board was given the power to summon persons before it and the decisions which it was required to make were discretionary in nature. It was required to have regard to competing interests. The decisions which the Board was required to make were similar in nature to the decision which had to be made by the court when considering whether to release a person on licence. In my view, there is good reason for holding that, in the ordinary course of events, this decision-making role should not be inhibited by the imposition of a duty of care.
[11] cf. R (Giles) v Parole Board [2003] 4 All ER Pt 1429 at [10]; [33].
This is particularly so bearing in mind the unique nature of the court’s jurisdiction in this area and the role assigned to the Board. First, there is the difficulty which the court faces of determining the initial question whether a person is incapable of controlling his or her sexual instincts[12]. Then there are the difficulties which the court faces of deciding whether to release on licence which, in the event of a release on licence, may give rise to the Board’s dilemma of deciding whether to cancel the release on licence in the event of a breach or apprehended breach. Such decisions have to be made despite the “fallibility of predictions of dangerousness”. [13]
[12] W E Lucas, Review for Release; The Use and Misuse of Psychiatric Opinion, Australian Institute of Conference 29-31 October 1991 collected papers at 241.
[13] Ian Campbell, Indefinite Sentences and Dangerousness ibid at 89.
Indefinite preventive detention is an exceptional measure. The intention of the Sentencing Act in its original form was to ensure constant review of the requirement to detain. It required a review by the Board every six months, irrespective of whether the person was in custody. The report of the Board on each review had to be furnished to the Minister for Correctional Services. A major reason for review was to consider whether continued detention was appropriate.
Release on licence was in the nature of a trial release. The concept of a trial release was reinforced by s 24(11) which provided that:
Where a person has been subject to a licence under this section for a continuous period of three years, the order for his or her detention under this Division will, unless the Supreme Court, on application by the Crown, orders otherwise, be taken to have been discharged on the expiration of that period.
The advantages to be gained by providing a trial release had to be balanced against the risk to the community of a release on licence.
These considerations were relevant to the exercise by the Board of the discretions invested in it pursuant to the scheme in place under the legislation at the time of the relevant events.
The fact that the court could direct a release on licence when the person detained remained incapable of exercising effective control over sexual instincts is indicative of the level of risk involved in such a release. In my view, this is of relevance when considering whether there are considerations of public policy which militate against the conclusion that the Board was under a duty of care. The limited ability of the Board to contain that risk with the resources and powers at its disposal provides a strong argument against such a conclusion.
I have referred to the importance of the element of control in determining whether a relevant duty of care applies. The limitations on the Board’s control of a person released on licence during the relevant period are also readily apparent. The Board was empowered to impose such licence conditions as it considered appropriate. However, the effectiveness of those conditions was almost entirely dependent on the co-operation of the licensee. It is in this respect that the reluctance of the law to impose a tortious duty to control the unlawful actions of others is relevant[14]. The Board was not equipped to supervise the licensee in any practical sense: that function was exercised by the Department of Correctional Services. The Board, for its part, oversaw the progress of the licensee in a general way and was heavily dependent upon the reports of departmental officers in doing so.
[14] Smith v Leurs (1945) 70 CLR 256 at 262; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 267.
In my view, the statutory functions of the Board did not, of themselves, give rise to the imposition of a duty of care towards a person in the position of the appellant. I have referred to the limited control vested in the Board, the policy considerations arising out of the unique circumstances of a release on licence of a person who might well remain incapable of exercising control over sexual instincts, and the absence of any practical investigational role by the Board. There is an obvious vulnerability affecting members of the public, but regard must be had once again to the limitations of the Board in addressing that circumstance.
In the event that the Board was required to deal with an application to amend the conditions of release or cancel the release on licence of a person, it was exercising a discretion which may have involved competing interests of rehabilitation and protection of the public. There is good reason for holding that this discretion should not be inhibited by a duty of care.

For these reasons, I am of the view that the Board did not owe a duty of care to the appellant simply by reason of the functions and duties assigned to it under the Sentencing Act.
Did a duty of care arise at a later stage?
The next question is whether the events which unfolded in the course of O’Shea’s release on licence justified the imposition of a duty of care owed by the Board to the appellant.
The relevant events are set out in the judgments of the other members of the court and there is no need for me to describe them in detail. I will begin at what appear to be the crucial events commencing in late July 1990. In adopting this approach I do not ignore the significance of O’Shea’s past and events such as the “list of names” incident and the fact that O’Shea involved himself in activities at the R Centre despite the direction of the Board that he was not to do so. Nevertheless, I think the trial judge correctly focussed his attention on the events of late July, albeit against the background of O’Shea’s past and his conduct during the licence period up to that time.
In late July the Board received information that O’Shea had been giving lessons to children at the R Centre at the request of the administrators there and while another adult was on the premises. These are the circumstances described by counsel for the appellant at the trial as the “point of no return for the Board”. The information had come from Ms S, the person in charge of the R Centre, and Mr Cordingley, O’Shea’s probation officer.
There was some debate at the trial as to whether these circumstances involved a breach of the conditions of the licence. The relevant condition is clause 12 of the conditions of licence which provided:
That he does not join or become involved in any organisation which either directs children’s activities, raises money for or on behalf of children’s charities or is in any way involved with children whatsoever.
However that may be, it was argued on behalf of the appellant that the knowledge conveyed in the letter and the report, viewed against O’Shea’s background and the other events which occurred in the period of his release on licence, gave rise to a duty of care which required further investigation by the Board and the taking of steps towards the cancellation of the release on licence.
Ms S wrote to the Board on 24 July 1990 and Mr Cordingley prepared a report to the Board dated 25 July 1990.
In her letter Ms S explained the circumstances in which O’Shea had contact with children at the R Centre. She said he had been involved in computer awareness workshops and activities for elderly people during Seniors’ Week and was asked by the R Centre to provide computer time for children between the adult classes. She stressed that he did not initiate the children’s programmes. She also stated that an adult was always present on the premises during the children’s activities. She said it was a condition that O’Shea not have contact with the children outside the set activities and was not to encourage children to be involved outside these times. She said O’Shea had complied with all of these conditions.
In his report Mr Cordingley commented:
I have told Ms S that the matter is beyond my control and that I have directed Mr O’Shea to discontinue his attendance at the Centre. She indicated to me that she would write to the Board, not only on behalf of Mr O’Shea, but also to ask it to reconsider its earlier decision, at least as far as the adult classes are concerned.
While Mr O’Shea has quite flagrantly disregarded both the Board’s ruling and condition no. 12 of his licence, I am nevertheless of the view that no harm has been done. On the contrary, I believe that in terms of his personal growth he has probably matured quite significantly, a factor which might well prove important as far as his future behaviour is concerned.
While not defending Mr O’Shea’s actions, I believe that in doing what he has done, he has only pre-empted a recommendation I would have eventually made, namely, that prior to the expiry of his licence he be encouraged to mix with a broad range of age groups, in a situation controlled by a caring person who knew of his history but who was nevertheless anxious to help him.
I therefore ask the Board to treat this matter as humanely as possible in the belief that to return Mr O’Shea to prison would have a devastating effect upon his physical and mental well being.
After considering the communications from Ms S and Mr Cordingley, the Board resolved to warn O’Shea in writing and, a short time later, he was banned from attending the R Centre by the probation officer.
The Chairperson of the Board, Ms Nelson QC, was asked about the warning letter in evidence:
QAre you able to, if you can, tell the court the reasoning, if you recall, behind the board’s decision to send a warning letter to O’Shea in relation to this information that came to the board?
AI think it was a letter warning him of the potential consequences of breaching his parole and reminding him of his parole conditions.
QAre you able to say why it was that it was thought appropriate to send a warning letter, as opposed to perhaps cancelling his release on licence?
AI suppose it’s always dangerous trying to look back, with what I now know about O’Shea, because you can often apply the knowledge 15 years later to the knowledge then. We took into account that O’Shea had volunteered the information and that he was going to this, or he wanted to go to [the Centre]. Generally speaking, if people are going to offend, they don’t tell you of the venue where they are proposing to do it. I mean, if he had have told Geoff Cordingley and Geoff Pope, we would never have known, because we had no way of finding out what he was up to 24 hours a day. We knew that children were likely to be present. So I think we wanted to reinforce to him that he was running into a situation of danger in those circumstances, if he chose to go there in circumstances which could bring him into a breach of his licence.
QTo what extent did you take into account the letter of Ms S, which is P 55?
AIt reassured us. First of all, the woman volunteered the information about where he was going, and what he was doing in her letter. She made it plain that he was not directly responsible for the care of individual children, and in any event, either she or another adult were on the premises during the children’s activities, and he, Lawrie O’Shea, was not to have contact with any of the children outside of the set activities, and was not to encourage or allow the children to be involved outside of these times. She was telling us that he was essentially involved with computers for the elderly. It was incidental that he provided some computer time for children between the adult classes, but at all times under supervision. So it didn’t seem to us he was putting himself in a situation where he was in breach of his licence, on the face of her letter, and she knew though, at this stage, what his offending was, so she wasn’t writing, in the dark, so to speak. What she was saying was that he was essentially directing his activity to adult people, that any contact with children was incidental to that. He wasn’t involved in the sense that he was organising it, and she, knowing his past history, was either going to supervise him personally, or ensure there was another adult there at all times to supervise him. So, we thought that was a much healthier environment than having him wander off say to the Public Library to access computers there, where we didn’t have someone available at all times who knew his background, to supervise him. There is a point beyond which – it’s really hard to say ‘You can’t get on a bus. You can’t go to the Public Library. You musn’t go to the Post Office. You can’t go to the corner delicatessen’. I think we were reassured he was operating in an environment where they knew what he had done. They knew his predilections and they were going to supervise him, which was much better than having him wandering around where he wasn’t being observed.
In cross-examination Ms Nelson was asked about the assurances given by Ms S and Mr Cordingley:
QThose assurances you took on face value from the letter from [the complainant] and the memo from Cordingley?
AYes, we certainly accepted them but we accepted them at that time knowing that Ms S had been told of his background, and we accepted what Mr Cordingley told us because Mr Cordingley was, even at that time, an extremely experienced officer.
In my view, the information received by the Board from Ms S and Mr Cordingley did not give rise to a duty of care. In expressing this view I have not lost sight of O’Shea’s background and the history of this particular release on licence. However, the matters which I have referred to in deciding that the duties and powers of the Board did not give rise to a duty of care of themselves, are also relevant to the issue presently under discussion.
It has been pointed out that the powers provided for in the Sentencing Act at the time of these events would not have permitted the Board to cancel O’Shea’s release on licence of its own motion. This could only be done on the application of the Crown. It was, of course, open to the Board to suggest to the Crown that such proceedings might be commenced. However, this was not a duty or function stipulated in the Sentencing Act. The Crown was given a discretion to take the necessary proceedings. The officers of the Department of Correctional Services responsible for the supervision of a person released on licence could instruct the Crown in such an application.
There might well be circumstances in which a duty of care could arise where, for example, the Board had knowledge of sexual offences committed by the person on licence[15]. But that was not so in the present case. The Board had been reassured by the letter from Ms S and the report from Mr Cordingley. There was no suggestion of sexual misbehaviour at this stage. Even taking into consideration O’Shea’s background, the situation was not so obvious as to justify the imposition of a duty of care at this stage.
[15] cf. Swan v South Australia (1994) 62 SASR 532.
As has been pointed out, there was no specific provision in the Act requiring the Board to act as an investigator; nor was it equipped to do so. No doubt it requested information from time to time and, if it held an enquiry into a breach under the Act, it could derive information in this manner. However, it was very much dependent upon the information it received. It is unlikely that either of these procedures would have revealed any sexual misconduct by O’Shea. A thorough investigation of the kind which might have revealed such information was well beyond the proper functions and resources of the Board.
For these reasons I am of the view that the particular circumstances established by the evidence do not support the claim that the Board owed the appellant a duty of care.
Breach of duty
The trial judge found that, on the assumption a duty of care was owed, there was a breach of that duty by the Board. He said:
The Board resolved to send a warning to O’Shea on 14 August 1990 as a result of this incident. The Board was informed later that the parole officer had banned O’Shea from the centre. At that stage it is argued that O’Shea’s licence should have been revoked and he should have been returned to custody, instead of being sent the warning letter.
In my view, the failure by the Board to follow up O’Shea’s breach of conditions, by positive action including further enquiry, would amount to a breach of duty if the Board was capable of owing any duty of care.
When considering whether there was a breach of duty of care, the trial judge placed considerable reliance on the assumption by the Board that Ms S was aware of O’Shea’s background. His Honour held that the Board should have made further enquiries about the extent of Ms S’s knowledge. He said this would have revealed a lack of understanding and knowledge by Ms S and this, in his Honour’s opinion, should have led the Board to put in train proceedings for the cancellation of O’Shea’s licence.
The importance of this issue in the steps which led to the conclusion by the trial judge that there had been a breach of duty of care is illustrated by the following remarks of the trial judge:
Ms Nelson gave evidence regarding the Board’s receipt of the information from Ms S and O’Shea’s parole officer. The Board assumed that Ms S must have known all about O’Shea’s past, whereas I find that she did not. The Board took the attitude that the letter from Ms S was somewhat of a reassurance whereas, as pointed out by Mr Tilmouth, it probably raised far more questions than it resolved. I agree with this comment. Mr Tilmouth argues that the Board should have returned O’Shea to custody on receipt of this information.
The evidence in relation to the way in which the Board assessed the information exchanged in the letter from Ms S, and the memo from O’Shea’s parole officer, indicates to me that the Board took far too casual an attitude for such an important breach of condition. All the more so, it seems to me, when the previous incidents of the “list of names” and the “Pope letter” are added to the background of the notorious paedophile. The Board could be criticised for not seeing the obvious advance by stealth of a person with a track record of continuous re-offending but it is very easy to be wise after the event.
However, even allowing for the benefit of hindsight, I do not agree with the submission made by the defendant that the Board was entitled, from the contents of Ms S’s letter and the parole officer’s memo, to assume that there had been no breach of the conditions.
As I have already said, Ms Nelson’s evidence proceeded on the assumption that Ms S knew quite a lot about O’Shea’s infamous past. It seems that the Board actually believed that it was of benefit for them to know that O’Shea was at the R centre and that the staff there knew what he had done in the past and were therefore on their guard, and in effect, acting as his supervisors. The Board, according to Ms Nelson, took the view that O’Shea didn’t have access to children at the centre in any unsupervised way. This is, in my view, another example of the Board taking too casual an approach.
As Mr Tilmouth pointed out, the likelihood or probability of Ms S having full knowledge of O’Shea, as the Board assumed, was rather low given that her own child also attended the centre. It is not clear if the Board had this information. It was put that there was just no possibility that Ms S would have written such a letter had she had any substantial information about O’Shea’s background. I think this is a reasonable submission, and although it is easy to say in retrospect, the Board should have looked at this matter more closely in my view. All the Board had to do was to make some further inquiries as to the depth of knowledge of Ms S which they did not do. This would have revealed the lack of knowledge and understanding of O’Shea’s background by Ms S, and should, one would have thought, have prompted the Board to take some positive action in issuing a warrant.
In my view, the evidence does not support the conclusion that the Board made unjustified assumptions about Ms S’s knowledge of O’Shea’s background thus resulting in insufficient action being taken with respect to O’Shea’s licence.
The assurance which the Board received from Ms S’s letter arose from the assertions that O’Shea was not directly responsible for the care of individual children, that an adult was always on the premises when the children’s activities were in progress, and that the R Centre forbade him to have contact with children outside the set activities. Ms Nelson also said that the letter from Ms S indicated that the supervision of O’Shea was being undertaken because of Ms S’s knowledge of O’Shea’s past.
As I have said, the trial judge concluded that the Board should have made more inquiries as to the depth of Ms S’s knowledge of O’Shea. He concluded that this would have revealed the extent of knowledge of O’Shea’s background by Ms S and prompted the Board to take some positive action against O’Shea.
It is not clear precisely when Ms S became aware of any aspect of O’Shea’s past. Her evidence on the topic was unsatisfactory. However, the contemporary correspondence speaks for itself. It indicates that Ms S had not been aware at first of O’Shea’s background. However, the tenor of her letter to the Board is that the R Centre perceived the need to supervise O’Shea’s activities and specific instructions were given to him not to have contact with any of the children outside these times.
The letter sought support for O’Shea’s continued involvement at the R Centre. Ms S directed her letter to the Parole Board. It must have been written at least with the knowledge that the Board was required to make a decision about O’Shea and that there were reasons why it was considered essential that he not be alone with children.
Prior to writing the letter, Ms S had conferred with Mr Cordingley. In his report to the Board which was written the day after Ms S’s letter to the Board, he said that, although Ms S did not know originally that O’Shea was subject to the Board’s jurisdiction, she became aware of that situation. His report continued:
Later that same day I discussed Mr O’Shea’s position with Ms S. She confirmed all of what he had told me and added that she felt partly responsible for placing him in the position in which he now finds himself, in that it was she who had literally “pestered” him to become more involved. She did not know that he was on licence or in any way subject to the Parole Board’s jurisdiction.
She had, however, learned at a later stage of Mr O’Shea’s past behaviour and had called a special management meeting to discuss his continued involvement, after confronting him with what she knew. In view of his impeccable behaviour, the Centre’s Management had allowed Mr O’Shea to continue his involvement subject to his agreeing never to be with children, other than in the presence of another adult and not to form, or attempt to form, any sort of relationship with a child for whom the Centre had a responsibility.
It was in this context that Ms Nelson said the Board placed some reliance on the assurances of Ms S, given as they were in the knowledge of O’Shea’s background.
It goes without saying that Ms S would not have known of every detail of O’Shea’s offending. But Mr Cordingley said in his report that she “learned at a later stage of Mr O’Shea’s past behaviour” and she called a special management meeting to discuss the position. It is clear that she knew enough to realise that the children needed protection and action was taken accordingly. I cannot agree, with respect, that the Board was under a duty to enquire further as to Ms S’s precise knowledge of O’Shea’s background when the management of the R Centre had taken the action which they did because of O’Shea’s past behaviour. The Board were entitled to act on Ms S’s letter and accept the accuracy of Mr Cordingley’s report on the measures which were taken and the reason why they had been taken.
Another aspect which contributed to the trial judge’s finding that there was a breach of duty of care was his conclusion that the Board acted under a misapprehension in assuming that the court, when releasing O’Shea on licence, did so on the basis that he was then capable of controlling his sexual instincts.
It should be pointed out that there is no evidence whether the court expressed any view on this aspect at the time of the release on licence.
Debelle J has dealt with the evidence of Ms Nelson in this respect and pointed out that she made it clear in a minute to the Minister dated 30 March 1989 that it was the Board’s view that O’Shea was incapable of controlling his sexual instincts. Ms Nelson did, however, give other evidence to the effect that she thought the release was made on the basis that O’Shea was capable of exercising control.

In any event, Ms Nelson made it clear on a number of occasions during her evidence that the members of the Board were of the view at all times that O’Shea was likely to reoffend. In these circumstances, the Board’s understanding or misunderstanding of the court’s view on this matter could not be viewed as a factor which supported a finding that the Board was negligent.
The knowledge which the Board acquired through the correspondence from the R Centre and Mr Cordingley and what should have been done by the Board upon receipt of it, falls to be considered against the Board’s statutory role.
The Crown had not applied for the cancellation of the licence. Accordingly, as has been pointed out, the Board had no formal power to investigate the matter further. It could have done so in an informal manner, but it is unlikely that its investigation would have revealed that O’Shea was involved in sexual abuse. Presumably, enquiries would have been made by Mr Cordingley, but he had already investigated the matter and accepted that no harm had been done.
As for commencing an application for cancellation of the licence, that was a matter for the Crown to decide upon. Again the Board, although it was not given such a role under the Act, could have suggested that the Crown initiate such an application. However, the Board had been given enough information to conclude that, as O’Shea had now been warned and also banned from the R Centre, it was appropriate to allow the release on licence to continue. Of course it could have followed a harder line and made representations to the Crown inviting an application for a cancellation of the release, but this does not mean that the decision it made was unreasonable or negligent.
I have stated my view that the circumstances did not require the Board to go behind the information it had received from its sources and investigate the matter further. In deciding what action it was to take in the light of that information, it did not ignore considerations which were relevant to that decision. The Board did not sit by and do nothing. It warned O’Shea and noted that he had been banned from the R Centre.
On the assumption that there was a duty of care, I am of the view that it was not breached.
I agree with the reasons of Debelle J on the issue raised in the notice of alternative contention as to whether the Board was entitled to judicial or quasi-judicial immunity.
I also agree with his reasons on the assessment of damages.
I would dismiss the appeal.
DEBELLE J. This is an appeal from a decision of a judge of this Court dismissing the plaintiff’s claim for negligence against the State of South Australia. It is convenient to refer to the parties as “the plaintiff” and “the defendant”.
The plaintiff claimed damages for the injuries, loss and damage he had suffered when he was a boy as a result of being sexually assaulted by two men, Lawrence John Edward O’Shea and Colin Humphrys. The trial judge found that O’Shea had sexually assaulted the plaintiff between 14 April 1990 and early July 1991. He also found that Humphrys had sexually assaulted the plaintiff from April 1991 and that he had in early July 1991 kidnapped the plaintiff, taking him to Melbourne and Sydney where he sexually assaulted the plaintiff over the course of some days. O’Shea had introduced the plaintiff to Humphrys. The kidnapping occurred some three weeks before the plaintiff reached his eleventh birthday.
The judge found that the plaintiff had suffered post‑traumatic stress disorder as a result of these sexual assaults which have severely affected his life. The sexual abuse has prevented him from having any normal youth and has affected his education and employment prospects. It has had a devastating affect upon him. To use the trial judge’s words, “this young man’s life has been ruined”.
O’Shea had been convicted of sexual assaults against children on several occasions. He and Humphrys were both known paedophiles. The details of O’Shea’s offending will be spelled out later in these reasons. On 13 July 1988 O’Shea had been released on licence subject to a number of conditions which included conditions that he not associate with children. I will list the conditions later in these reasons. While released on licence, O’Shea was under the supervision of the Parole Board of South Australia (“the Parole Board”). The plaintiff had met O’Shea and all his dealings with O’Shea had occurred while O’Shea was released on licence.
The plaintiff claimed that the Parole Board had been guilty of the tort of negligence. He brought his action against the State of South Australia pursuant to s 5 of the Crown Proceedings Act 1992 and s 60A of the Correctional Services Act 1982. The trial judge held that the Parole Board did not owe any duty of care to the plaintiff and dismissed the claim. The plaintiff appeals against that decision, contending that in all the circumstances the Parole Board owed him a duty of care and had acted in breach of that duty.
Lest he had erred in holding that the Parole Board did not owe a duty of care to the plaintiff, the trial judge considered whether, if such a duty did exist, the Parole Board had acted in breach of that duty. He found that it had. The defendant has filed a notice of alternative contention submitting that it did not act in breach of any duty of care to the plaintiff. The trial judge also proceeded to an assessment of damages. He assessed the plaintiff’s damages in the sum of $381,750. The defendant cross‑appeals against several aspects of that assessment.
Thus, the only issue on the plaintiff’s appeal is the question whether the Parole Board was subject to a common law duty of care. For its part, the defendant contends that, even if the Parole Board was subject to a duty of care, it did not act in breach of it. It also appeals against aspects of the assessment of damages. The defendant had also submitted that the Parole Board was a judicial body or quasi-judicial body and as such immune from suit. The trial judge rejected that submission. The defendant also contends that the judge erred in that conclusion.
It is convenient first to review the legislation establishing the Parole Board, the legislative régime by which O’Shea had been released on licence and the Parole Board’s knowledge of and dealings with O’Shea. I will then examine the dealings between the plaintiff and O’Shea before examining the issues argued on the appeal.
The Parole Board
The Parole Board was established in 1969 by s 5 of the Prisons Act Amendment Act 1969. The Prisons Act was later repealed by the Correctional Services Act 1982, which by s 55 continued the Parole Board in existence. At all relevant times s 55 was in these terms:
55.(1)     The Parole Board of South Australia established under the repealed Act shall continue in existence under this Act.
(2)     The Board shall consist of six members appointed by the Governor, of whom –
(a)one, who shall be the Chairman of the Board, shall be –
(i)a Judge of the Supreme Court;
(ii)a person who holds judicial office under the Local and District Criminal Courts Act 1926;
(iii)a person who has retired from the office of Judge of the Supreme Court or from judicial office under the Local and District Criminal Courts Act 1926, but who has not attained the age of seventy years;
or
(iv)a person who has, in the opinion of the Governor, extensive knowledge of, and experience in, the science of criminology or penology, or any other related science;
(b)one shall be a legally qualified medical practitioner who has, in the opinion of the Governor, extensive knowledge of, and experience in the practice of psychiatry;
(c)one shall be a person who has, in the opinion of the Governor, extensive knowledge of, or experience in, criminology or sociology, or any other related science;
and
(d)three shall be persons nominated by the Minister.
(3)     At least one member of the Board must be a woman and at least one member must be a man.
(3a)   At least one member of the Board must be a person of Aboriginal descent.
(4)     An officer of the Department is not eligible to be appointed as a member of the Board.
The Chairman of the Parole Board during the events the subject of these proceedings was Ms Frances Nelson QC. She has been the presiding member since 1983 and remains in that office. The Board has a secretary: see s 62 of the Correctional Services Act. It has a small secretarial staff but no other employees.
Subject to the terms of s 60 of the Act, the Board sits as a Full Board. Section 60(2) permits the Board to sit in divisions if the presiding member thinks it necessary or desirable for the purpose of expediting the determination of the proceedings of the Board. In the particular circumstances of this case, the decisions of the Board which are being challenged were decisions of the Board sitting as a Full Board.
Section 60A provides, among other things, that the members of the Board are immune from liability for acts done in good faith and in the exercise of powers and functions under the Act. Any liability that might attach to a member of the Board is transferred to the Crown. Section 60A is in these terms:
60A(1)     No act or proceeding of the Board is invalid by reason of a vacancy in its membership or a defect in the appointment of a member.
(2)     No liability attaches to a member of the Board for an act or omission by the member, or by the Board, in good faith and in the exercise or purported exercise of powers or functions, or in the discharge or purported discharge of duties, under this Act.
(3)     A liability that would, but for subsection (2), attach to a member of the Board lies against the Crown.
There was no suggestion that the Parole Board or any member of the Parole Board had not acted in good faith in the exercise or purported exercise of powers and functions under the Act in dealing with O’Shea. Thus, if the Parole Board or any member of it is held to be liable, that liability will be a liability of the Crown. The plaintiff relies on s 60A of the Correctional Services Act and s 5 of the Crown Proceedings Act to bring this action against the State.
The Parole Board has extensive duties and powers in relation to the release of prisoners on parole and the supervision of prisoners who have been released on parole. Those duties and obligations are spelled out at some length in Division 3 of Part 6 of the Correctional Services Act. When dealing with prisoners who have been released on licence, the Parole Board does not act under the Correctional Services Act but under s 24 of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”). Ms Nelson’s evidence was that there was no difference between the manner in which the Parole Board managed a prisoner released on licence and a prison released on parole. As will be noted, the powers of the Board in respect of prisoners released on licence are not in all respects the same as for prisoners released on parole. The differences do not, however, constitute a reason to have different schemes for management of each.
Section 63 of the Correctional Services Act invests the Parole Board with power to summons a person to attend before the Board or to produce documents, to require a person to furnish the Board with a written report or written information, or to require a person to answer on oath or affirmation any questions put by the Board on any matter relevant to any matter before the Board. A person who fails to do so is guilty of an offence: s 63(2) of the Correctional Services Act.
Release on Licence
O’Shea has a considerable record of sexual offending. The trial judge described him as “a notorious paedophile”. At the time he sexually assaulted the plaintiff, O’Shea was subject to a legislative régime for offenders incapable of controlling their sexual instincts, a régime that enabled a prisoner to be released on licence. That régime was initially established by s 77a of the Criminal Law Consolidation Act 1935. In 1988, that provision was repealed by s 29 of the Statutes Amendment and Repeal (Sentencing) Act 1988 (No 51 of 1988). It was replaced by ss 23 and 24 of the Criminal Law (Sentencing) Act 1988 as amended. (The history of these schemes is briefly touched on in R v England (2004) 89 SASR 316 at [42] and at [85] to [86].) O’Shea was at different times released on licence under both régimes.
Section 77a of the Criminal Law Consolidation Act provided for detention of persons incapable of controlling their sexual instincts. Section 77a(1) provided that in any case where a person had been found guilty of specified offences, the trial judge may in his discretion direct that two or more medical practitioners enquire as to the mental condition of the offender and, in particular, whether his mental condition is such that he is incapable of exercising proper control over his sexual instincts. If the medical practitioners reported that the offender was incapable of exercising proper control over his sexual instincts, the judge had a discretion to declare that the offender is so incapable and direct that he be detained in an institution during the pleasure of the Crown. The offender was at liberty to call evidence in rebuttal of the report. The judge had a discretion to make the order in addition to or in lieu of a sentence. Section 77a(3) described the circumstances in which the offender might be released. It was in these terms:
(3)If the medical practitioners report to the court or judge that the offender is incapable of exercising proper control over his sexual instincts the court or judge may, either in addition to, or in lieu of imposing any other sentence, declare that the offender is so incapable and direct that he be detained in an institution during His Majesty’s pleasure: Provided that the offender shall be entitled to call evidence in rebuttal of such report, and no such order shall be made unless the court or judge shall consider the matters reported to be proved.
Every offender in respect of whom such a direction is given –
(a)     shall be detained in such institution as the Governor directs, and until the Governor gives a direction as to such institution, in any gaol:
(b)     shall not be released unless –
(i)the Governor is satisfied, on the recommendation of the Parole Board, that he is fit to be at liberty and terminates his detention;
or
(ii)the Governor releases him upon licence in pursuance of this section.
Sub-sections 7(a) to 7(c) supplemented the terms of s 77a(3) providing a power to the Parole Board to recommend the release of the offender on licence and the conditions of release as well as to return the offender to custody. They were in these terms:
(7a)   Where an offender has been detained in an institution pursuant to this section, the Governor may, on the recommendation of the Parole Board, release that person upon licence.
(7b)   The terms and conditions upon which a person is released upon licence under this section shall be determined by the Governor upon the recommendation of the Parole Board.
(7c)   Where –
(a)the period for which a person was released on licence under this section has expired;
or
(b)the Parole Board has reasonable cause to suspect that any such person has contravened or failed to comply with any term or condition upon which he was released,
a person authorized by warrant signed by two members of the Parole Board may apprehend the person so released, and return him to custody or detain him for examination by the Parole Board, in accordance with the terms of the warrant.
Thus, under this régime, the power to grant a release of licence was invested in the Governor acting on a recommendation of the Parole Board. O’Shea was dealt with under this régime until 12 May 1988 when s 23 and s 24 of the Sentencing Act came into operation. Before noting the terms of s 23 and s 24, I briefly state O’Shea’s record until 1986 and the Board’s knowledge of that record.
O’Shea’s Conduct Until 1986
On 4 October 1960 O’Shea was charged with indecent assault of a nine year old girl. He was found guilty and sentenced to three years imprisonment. He was released from Yatala Labour Prison on 20 February 1962.
In July 1967 O’Shea was convicted of indecent assault of two children under the age of 12 years. Hogarth J made orders pursuant to s 77a of the Criminal Law Consolidation Act directing that O’Shea be detained in an institution. He was detained in Hillcrest Hospital until released in July 1970.
In December 1977 O’Shea was convicted of two counts of indecent assault of children whilst employed as a volunteer officer at weekend camps. Jacobs J found that he was unable to control his sexual instincts and made orders pursuant to s 77a directing that O’Shea be detained during the Governor’s pleasure. O’Shea appealed to the Full Court but his appeal was dismissed.In June 1980 the Parole Board recommended that O’Shea be released on licence. He was released on 15 December 1980.
On 27 January 1981 the Parole Board became aware that O’Shea had been associating with young children contrary to a condition of his licence. O’Shea was returned to custody. He remained in custody until 27 September 1983, when he was again released on licence following a determination to that effect by the Parole Board. He continued to be released on licence until 9 April 1985.
On 9 April 1985 the Parole Board learned that O’Shea was running a camp for disabled children contrary to the terms of his licence. This breach was aggravated by the fact that O’Shea was running the camp under an assumed name. On the same day the Parole Board issued a warrant to return O’Shea to custody for examination. O’Shea was arrested on 15 April 1985 and was detained in custody. The Parole Board obtained a number of medical reports.
The Parole Board’s Knowledge of O’Shea’s Background
The Parole Board’s knowledge of O’Shea’s background until April 1986 was set out in a report to the Minister from Ms Nelson QC, the presiding member of the Board. The report was dated 16 April 1986. Although some of the facts have already been mentioned, it is desirable to set out the whole of the report as it sets out the Parole Board’s knowledge of the facts as at April 1986. I have interpolated in bold type some additional explanation to the report and have deleted references to addenda to the report.
2.     BACKGROUND
2.1     Mr O’Shea was born in Magill on 7 September 1938. He was brought up in a very unsettled home atmosphere due to his father’s drinking. The home conditions became so bad in 1955 that his mother left his father, put the three youngest children in an orphanage and went to work to support the family.
2.2     Mr O’Shea sat for the Leaving at 16 years and passed three subjects. At this time he then went to work as a clerk with the Royal Insurance Company. After one year he went back to Unley High School and passed Leaving and obtained a Commonwealth Scholarship to medicine. He was unsuccessful in completing his studies.
2.3     Mr O’Shea received no sex education from his parents. At the age of 16 years he was given a lift in a car by a strange man, who masturbated him and this terrified him. He never had a girlfriend or had been out with a girl, because he claimed he was too shy.
2.4     On 4 October 1960 Mr O’Shea was charged with indecent assault on a 9 year old girl. He was found guilty and sentenced to two years imprisonment. He was discharged from Yatala Labour Prison on 20 February 1962, whereupon he sought psychiatric assistance due to feeling depressed and extremely hostile towards his father.
2.5 In July 1967 Mr O’Shea was convicted of indecent assault on a boy aged 10 years and two further counts of the same offence on another child aged 8 years. The judge also took into account three other offences of the same nature, two of which involved a 10 year old boy and the other which involved a girl, 11 years old. Mr Justice Hogarth ordered Mr O’Shea to be examined pursuant to Section 77a of the Criminal Law Consolidation Act. The examining psychiatrists recommended that in terms of Section 77a it would be appropriate for him to be detained in an institution. Hillcrest Hospital was named as an appropriate institution where he could be detained and where an attempt could be made at treatment.
2.6     Mr O’Shea stayed in Hillcrest Hospital until July 1970. He was reported as having long standing abnormalities with regard to personality functioning. He was shy, introverted, rather reticent and experiencing very real difficulties relating satisfactorily to others. In particular, he initially found it difficult to form mature relationships with people of his own age, and especially with women. Whilst his intelligence was seen as normal and perhaps exceptional, he was considered to be a rather immature young man. Treatment included a heavy emphasis on group therapy. He appeared to have made some progress whilst at the Hospital, mixing fairly easily with adult people and discussing his sexual difficulties freely with his therapists.
2.7     Mr O’Shea was married on 8 May 1971 at the age of 33 years to Raelene, 27 years, whom he met while they were both patients at Hillcrest Hospital. There were two children from the marriage.
2.8     In the early 1970’s Mr O’Shea supervised weekend camps for children and became the founder of the Children’s Foundation of South Australia. The Foundation purchased the Morialta Home for Young Children.
2.9 In December 1977 Mr O’Shea was convicted of two counts of indecent assault on juveniles whilst he was employed as a volunteer officer for weekend camps. The psychiatric reports indicated that Mr O’Shea was a person who had a personality disorder of which paedophilia was the major symptom. It was the opinion of the psychiatrist that Mr O’Shea’s history was consistent with an inability to control sexual impulses. Pursuant to Section 77a of the Criminal Law Consolidation Act, Mr Justice Jacobs sentenced Mr O’Shea to be detained at the Governor’s Pleasure. Mr O’Shea continued to deny the significance of the harm that his actions may have had on others. He believed that the good things which he had offered, namely, the concern for the welfare of children, outweighed the debit of occasional interfering with an under aged person.
2.10   Later, in granting Mr O’Shea leave to appeal subject to extension of time (extension eventually not granted by the Court of Criminal Appeal), his Honour remarked that the order he made was not intended as a sentence of indeterminate imprisonment and that the underlying purpose of his original order had, therefore, been frustrated. The object behind the appeal was to have a determinate sentence substituted for the indeterminate imprisonment, a course, it was argued that his Honour would have taken originally had he foreseen the result of the detention order.
2.11 Whilst incarcerated, it was discovered that Mr O’Shea had been subjected by several prisoners to assaults. This revealed the inhumane behaviour of other prisoners towards people detained under Section 77a. In 1979 a report by the Criminal Law and Penal Reform Committee of South Australia strongly argued that Section 77a be repealed.
2.12 In 1980 Mr O’Shea’s treatment was stopped. During Mr O’Shea’s detention he had received no psychiatric treatment other than the mandatory assessments of progress every 90 days, in accordance with the provisions of Section 77a. The release of Mr O’Shea was dependent upon the Parole Board’s recommendation to the Governor as to his fitness to be at liberty; and the Parole Board in its turn looked to reports from medical practitioners. Since psychiatrists were neither willing to recommend his release nor able to rehabilitate him to the extent that he was “fit” for release, it did not seem that Mr O’Shea’s situation would be resolved.
2.13   During the period between 1978 and 1980 the Parole Board of South Australia reviewed Mr O’Shea’s case a total of 15 times. In June 1980 the Parole Board recommended the release of Mr O’Shea on licence. Mr O’Shea was released on 15 December 1980. It was reported to the Board that on 27 January 1981 Mr O’Shea had been associating with young children without supervision. This was contrary to his conditions of licence. Mr O’Shea was returned to custody. From January 1981 to October 1983 Mr O’Shea’s case was reviewed by the Parole Board on 23 occasions. Early in 1982, Mr O’Shea was divorced. It was his hope to remain in contact and be good friends with his wife and children.
2.14   Mr O’Shea was released on licence once again on 27 September 1983 to be under the supervision of a parole officer for three months. That period of release on licence continued until 10 April 1985.
2.15   No matter concerning or involving Mr O’Shea was raised before the Parole Board in the period between September 1983 to April 1985. In particular, the Parole Board did not consider or reconsider Mr O’Shea’s position upon the expiry of the aforesaid licence.
2.16 On 9 April 1985 it had been brought to the attention of the Board that Mr O’Shea was running a camp for disabled youngsters which was of grave concern to the Department for Community Welfare. Mr O’Shea was running these camps under the assumed name of Mr Michael Harrison. In the opinion of the Crown a person detained pursuant to Section 77a cannot be finally released until such time as the Governor on the recommendation of the Parole Board terminates his detention. The Crown, therefore, advised the Director‑General for Community Welfare to approach the Parole Board to issue a warrant for Mr O’Shea’s apprehension. A copy of that Opinion is enclosed.
2.17   Upon receipt of advice from the Attorney‑General on 9 April 1985 a warrant was issued by the Parole Board to return Mr O’Shea to prison for examination by the Board regarding his current situation. The warrant was issued on 10 April 1985.
2.18 Pursuant to Section 77a(7c) of the Criminal Law Consolidation Act the Board is of the view that it may return a licensee to prison after a licence has expired, but it is not mandatory for the Board to do so. In the case of Mr O’Shea the Board decided to return him to custody for examination. However, during the meeting of 16 April 1985 the Board was informed that Mr O’Shea was wanted for questioning on possible charges of indecent assault. The Board informed Mr O’Shea that he was brought back into custody due to licence expiry, but would defer any further consideration or examination of this case until it was known if charges would be laid against him.
2.19   By letter dated 20 December 1985 which was received by the Board on 30 December 1985, the solicitor who is acting for Mr O’Shea herein advised the Board that on 16 December 1985 the Crown had entered a nolle prosequi to the charges against Mr O’Shea.
2.20 The Board considered the aforesaid letter at its next meeting on 15 January 1986. The Board then determined to request two psychiatric reports pursuant to Section 64(5) of the Correctional Services Act 1982.
The report then notes that, after receiving reports from two medical practitioners, Dr Lucas and Dr O’Brien who were both psychiatrists, the Parole Board had interviewed O’Shea on 18 March 1986 who was legally represented. The medical practitioners had reported, albeit with reservations, that O’Shea was fit to be released on licence. On 18 March 1986 after considering these reports, the Parole Board decided to recommend to the Governor that O’Shea be released on licence, the release to be subject to 13 conditions including a condition that he did not associate with any child under the age of 16 years except in the presence of another adult. That condition did not apply to O’Shea’s own children.

On 8 May 1986, the Governor resolved not to act on the Parole Board’s recommendation. O’Shea issued proceedings seeking to quash the Governor’s decision and other ancillary relief. The application was heard and dismissed by the Full Court: R v Nelson; ex parte O’Shea (1986) 44 SASR 507. O’Shea’s appeal to the High Court was dismissed: South Australia v O’Shea (1987) 163 CLR 378.
On 1 December 1987 the Parole Board again recommended that O’Shea be released on licence. The Board had before it and acted on reports from Dr Lucas and Dr O’Brien, the psychiatrists who had recommended O’Shea’s release in 1986. Both adhered to the opinions expressed in their earlier reports in February and March 1986. In his report dated 7 February 1986, Dr Lucas had said that O’Shea “has to be given the benefit of the doubt and so should be regarded as having controlled his sexual impulses while in the community”. He recommended O’Shea’s release on conditions including that he had no contact with children under the age of 16 years except when the child was with an adult. Towards the end of his report, Dr Lucas said:
I recommend that should he be released, conditions of the type set out above be imposed on him. The Board may have additional conditions or may wish to vary the ones I have suggested. I think Mr O’Shea needs to know that at the first sign that he is not abiding fully by the conditions, the Board will act rapidly and without question to revoke his licence. Any supervising officer needs to be told exactly what action to take in certain circumstances and the frequency with which Mr O’Shea’s situation should be reviewed and what checks he should be subjected to. These instructions to a supervising officer would be not merely to protect the community, but to protect the officer from criticism should anything go wrong.
Past performance suggests that Mr O’Shea will have difficulty in abiding by conditions. One of the main difficulties in dealing with him is that he is not a particularly honest man. Mr O’Shea told me he has changed. I will judge him by his performance rather than his words.
Dr O’Brien also expressed qualifications on O’Shea’s fitness for release:
In my opinion Mr O’Shea has demonstrated his inability/unwillingness to keep a safe distance from children’s organisations, although I acknowledge that liaison with such associations do not necessarily and inevitably lead to the sexual seduction of children. From a clinical point of view, therefore, I believe it is important that conditions in any proposed licence should at least include (1) that he refrains from having any contact with children (other than his own) and (2) that he does not associate in any way or fashion, directly or indirectly, with children’s organisations/associations or foundations.
Dr O’Brien concluded his report dated 11 March 1986 by expressing the view that, “bearing in mind O’Shea’s known paedophilic propensities”, he should nevertheless be released on licence.
In his report to the Board dated 17 November 1987, Dr Lucas re-iterated the need for the Board to ensure that O’Shea complies with the conditions of his release. He said:
The main difficulties I see with Mr O’Shea after his release are ensuring that he complies with conditions. Any supervising officer will have to keep a very close eye on him as Mr O’Shea has not shown himself to be a particularly honest man and he is not given to full disclosure of his activities.
There is nothing in Ms Nelson’s evidence to suggest that the Board was not well aware of these concerns.
A New Régime for Release on Licence
On 12 May 1988, the new régime established by s 23 and s 24 of the Sentencing Act came into operation. Those provisions established a similar régime to that provided by s 77a of the Criminal Law Consolidation Act but there are some important differences.   For example, the Parole Board no longer had power to recommend release on licence and the order for release was made by the Supreme Court, not by the Governor. For present purposes, it is sufficient to refer to s 24 which provides for release on licence. Section 24 is in these terms:
(1)The Supreme Court may, on application by the Crown or the person, authorize the release on licence of a person detained in custody under this Division.
(2)On the Court authorizing the release of a person under subsection (1), the appropriate board must order the release of the person on licence on the day specified by the Court.
(3)The release of a person on licence under this section will be subject to such conditions as the appropriate board thinks fit and specifies in the licence.
(4)Where the Supreme Court has refused a person’s application for release on licence, the person may not further apply for release for a period of six months, or such lesser or greater period as the Court may have directed on refusing the application.
(5)The appropriate board may -
(a)     on application by the Crown or the person, vary or revoke a condition of a licence or impose further conditions;
or
(b)     on application by the Crown, cancel the release of a person on licence, if satisfied that the person has contravened, or is likely to contravene, a condition of the licence.
(6)Where an application has been made to the appropriate board for cancellation of a person’s release on licence, a member of the board may -
(a)     summon the person to appear before the board;
or
(b)     apply to a justice for a warrant for the apprehension and detention of the person pending determination of the application.
(7)Where a person who has been summoned to appear before the appropriate board fails to attend in compliance with the summons, the board may -
(a)     determine the proceedings in his or her absence;
or
(b)     direct a member of the board to apply to a justice for a warrant for the apprehension and detention of the person for the purpose of bringing him or her before the board.
(8)A member of the appropriate board may apply to a justice for a warrant for the apprehension and return to custody of a person whose release on licence has been cancelled by the board.
(9)The appropriate board may, if it thinks good reason exists for doing so, cancel a warrant issued under this section at any time before its execution.
(10)Where a person who has been released on licence commits an offence while subject to that licence and is sentenced to imprisonment for the offence, the release on licence is, by virtue of this subsection, cancelled.
(11)Where a person has been subject to a licence under this section for a continuous period of three years, the order for his or her detention under this Division will, unless the Supreme Court, on application by the Crown, orders otherwise, be taken to have been discharged on the expiration of that period.
(12)For the purposes of this section -
“the appropriate board”, in relation to an application under this section, means -
(a)     if the person the subject of the application is being detained in a training centre, or has been released on licence from a training centre - the Training Centre Review Board;
(b)     in any other case - the Parole Board.
In the case of O’Shea, the appropriate board was the Parole Board.
The terms of s 24 were amended in 1991 but the amendments did not come into operation until after the events the subject of this action. It is unnecessary to refer to those amendments for the purposes of resolving the issues in these proceedings.
Shortly stated, the régime established under s 24 is that the power to release on licence a person who is unable to control his sexual instincts is invested in the Supreme Court and not the Governor. Although the court orders the release on licence, the conditions of release are determined by the Parole Board: s 24(3) of the Sentencing Act. Once a person has been released on licence, the Parole Board may, on the application of the Crown or of the person on licence, vary or revoke a condition of the licence or impose further conditions: s 24(5)(a). However, it had no power on its own motion to amend the conditions of the licence. In addition, the Board may on the application of the Crown cancel the release on licence if satisfied that the person has contravened, or is likely to contravene, a condition of the licence. A member of the Board may summon the person to appear before the Board and may apply for a warrant to arrest and detain the person pending determination of the proceedings: s 24(6). Where a person has been released on licence for a continuous period of three years, the order for detention will be deemed to have been discharged unless the Supreme Court orders otherwise: s 24(11) of the Sentencing Act.
Parole Board’s Limited Powers
It will have been noticed that it is not the Parole Board which applies for a prisoner to be released on licence and it is not the Board which decides whether to release a prisoner on licence. The application is made by either the Director of Public Prosecutions or the prisoner: s 24(1). The decision whether the prisoner is to be released is made by the Supreme Court: s 24(1). The Parole Board is first involved in the process when it prepares the conditions on which the prisoner is released. Once the prisoner is released and is subject to those conditions, the powers of the Board are relatively limited.
Section 23(9) and s 23(10) of the Sentencing Act require the Parole Board to report to the Minister at least once every six months on each prisoner serving a sentence of indeterminate duration. A like duty is created by s 64(2) and s 64(3) of the Correctional Services Act. It is doubtful whether the Board must discharge these duties in relation to a person who has been released on licence. However, it is unnecessary to resolve that question as the duty to report to the Minister does not inform the question whether the Board owed a duty of care to the plaintiff.
Section 24 does not contain detailed provisions such as those which are set out in Part 6 of the Correctional Services Act (s 68 to s 76) which set out the powers of the Parole Board when dealing with prisoners released on parole.
The manifest purpose of s 23 and s 24 of the Sentencing Act is to assist the rehabilitation of the prisoner in a manner consistent with the safety of the community: Swan v South Australia (1994) 62 SASR 532 at 541 per Bollen J. Although Swan v South Australia was a case concerning a prisoner released on parole, the objectives of release on licence and release on parole are the same. The aim is to enable the prisoner to return to the community as a law abiding citizen. A corollary of that purpose is to endeavour to avoid persons subject to an indeterminate period of imprisonment from being institutionalised to such a degree that they are unable to return to the community. The provisions by which a prisoner is released on licence represents the endeavour on the Parliament of South Australia to resolve the tension between the protection of individual liberty, which is deeply rooted in common law tradition and democratic ideals, and the need to protect the community from offenders who, because they are unable to control their sexual instincts, are likely to constitute a menace or a risk to society: South Australia v O’Shea (1987) 163 CLR 378 at 385 per Mason CJ. Although the observations of Mason CJ were made in respect of the previous scheme of release on licence, they are apposite to the present scheme. Plainly, there is a risk that a person released on licence (or for that matter on parole) will offend again. That is a risk inherent in a system of release on licence or on parole.
Notwithstanding that risk, the Board has no power to supervise prisoners released on licence. All that is available to the Board are the reports of probation officers assigned to the released prisoner and the power to summons the released prisoner and any other persons for questioning. Indeed, it is obviously impracticable for the Board to seek to supervise. Apart from the fact that the complete supervision of a released prisoner all day and every day would be quite inconsistent with the process of rehabilitation, the Board does not have the resources to supervise to that extent. The Board has limited staff. It depends on reports from probation officers employed by the Correctional Services Department. In addition, the scheme plainly depends on the willingness of the released prisoner to comply with the law and with the terms and conditions on which he has been released as well as to co-operate with his probation officer and through that probation officer to co-operate with the Parole Board itself. The Board does not, therefore, supervise released prisoners. It is more accurate to describe the Board’s function as being to monitor the activities of a released prisoner. The Board’s knowledge of the activities of a person released on licence depended on the willingness of that person to report fully to his probation officer and the reports of the probation officer to the Board.
The power of the Board when dealing with a released prisoner who has breached the conditions of release on licence are set out in s 24. Although it is not expressly stated, there is plainly an implied power to counsel and assist the prisoner and, where appropriate, to warn the prisoner. The Board has power to summons the released prisoner to appear before it: Section 24(b). The exercise of that power will assist the Board, not only to obtain information, but also to provide an opportunity for direct contact with the prisoner released on licence enabling the direct administration of any advice, counselling or warning. The Board may also exercise its powers under s 24(5) to vary conditions so as to meet changed circumstances or to impose a more restricted régime upon the person released on licence. However, it must be noted that during the events the subject of these proceedings, the Board did not have power of its own motion to vary or revoke the conditions of the licence. In March 1989, Ms Nelson QC sent a minute to the Minister seeking that power. (Legislation giving the Board that power was not enacted until May 1992, after the events the subject of these proceedings). Finally, the Board had power to cancel the release on licence for a breach of the condition or for the commission of an offence but again it could not act of its own motion: see s 24(5)(b). The Board also could utilise the powers vested in it by s 63 of the Correctional Services Act.
Section 68 of the Correctional Services Act prescribes the matters to be taken into consideration by the Parole Board when fixing or recommending conditions for the release of a prisoner on parole. The paramount consideration when fixing conditions is the safety of the community: s 68 (1b). Although there is no like provision in s 24, Ms Nelson’s evidence was that, when dealing with O’Shea, the paramount consideration was the safety of the public. It is obvious that that must be so.
Section 68 might be considered to provide guidance as to the kind of conditions which might be fixed by the Parole Board when considering the conditions for a prisoner to be released on licence. It is apparent that the detailed conditions prescribed as the terms of O’Shea’s release reflected the factors listed in s 68.
Section 73, 74, 75 and 76 of the Correctional Services Act prescribe the circumstances in which parole will be cancelled for breach of conditions or by the commission of an offence. Thus, a breach of a designated condition renders the parolee liable to automatic cancellation of parole: s 73. The Board has a discretion whether to cancel the parole for breach of other conditions: s 74. One option available of the Parole Board is to order the parolee to serve a period of community service: s 74AA. The commission of an offence will automatically lead to cancellation of parole: s 75. Section 24 invests a wider discretion in the Board than those provisions when dealing with prisoners released on licence but those provisions provide a guide as to how the Board might deal with breaches of conditions. It is apparent from Ms Nelson’s evidence that the Board adhered to a like régime for O’Shea. However, in the absence of a like provision to s 74AA, it did not have the power to order community service.
Ms Nelson gave evidence as to the manner in which the Parole Board had considered how it should exercise its discretion when it learned that a prisoner released on licence had failed to comply with the terms on which he had been released. The Parole Board had regard to such matters as the nature and seriousness of the condition which had been breached, the nature and circumstances of the breach, and the seriousness of the breach. She said that the Board regarded cancellation of the licence and returning the prisoner to gaol as an option of last resort. Other options available to the Board were to summons the person to appear before the Board, to remind the person of the seriousness of the conditions, to counsel the prisoner and to amend the conditions of release (this option was available only if the Crown Solicitor applied to do so since the Board could not amend the conditions of release of its own motion). She explained that the Board would not consider the breach in isolation but against the whole known background of the offender in question. A material consideration was whether the prisoner had a history of complying or not complying with the terms of his licence. The Board operated on the footing that the protection of the public and in particular children was its paramount consideration. Her evidence was that the Parole Board was acutely conscious of O’Shea’s background. As she said, “he stood out against other people”.
O’Shea Released on Licence
On 29 June 1988, Mohr J made an order releasing O’Shea on licence. On 13 July 1988, acting on the order of Mohr J, the Board ordered that O’Shea be released on licence and that the release be on the following conditions.
1. That he shall not commit any offence.
2.That he shall not possess any offensive weapon unless he has first obtained the permission of the Board to do so and comply with the terms and conditions of that permission.
3.That he shall be under the supervision of a Parole Officer, and that he shall obey the reasonable directions of the Parole Officer, which includes: (shall include but are not limited to the following):
4.That he be of good behaviour, keep peace towards persons, and does not commit any breach of the law.
5.That he carries out faithfully all instructions and requirement of the Parole Officer under whose supervision he has from time been placed (in this order referred to as “the Parole Officer”).
6.That he report as and when required by the Parole Officer.
7.That you report weekly in person to the Parole Officer under whose supervision you have from time to time been placed and this is not to be varied without the Parole Board approval.
8.That he does not depart or attempt to depart from the State of South Australia without the prior (written) permission of the Parole Officer.
9.That immediately upon his release he reports to the Parole Officer.
10.That he obeys the directions of his Parole Officer with regard to his employment and accommodation.
11.That he undergoes such psychiatric or psychological or medical or other treatment and/or counselling as his Parole Officer shall from time to time direct.
12.That he does not join or become involved in any organisation which either directs children’s activities, raises money for or on behalf of children’s charities or is in any way involved with children whatsoever.
13.That he does not associate with any child under the age of 16 years except in the presence of another adult without first obtaining the prior written permission of his Parole Officer, provided that this shall not apply to the children of his marriage.
14.That he does not live outside the metropolitan area of Adelaide without the prior written permission of the Parole Board.
15.That he does not use a false name or undertake any activity under a false name.
16.That he does not change his name without the prior written permission of his Parole Officer.
O’Shea signed an acknowledgement that he understood the conditions and agreed to accept them.

In SB v State of New South Wales,[79] Redlich J reviewed X (Minors) v Bedfordshire CC and the later English cases in some depth – Attorney-General v Prince & Gardner,[80] W v Essex County Council,[81] Waters v Commissioner of Police,[82] Barrett v Enfield London Borough,[83] Phelps v London Borough of Hillingdon,[84] B v Attorney General of New Zealand,[85] D v East Berkshire Community Health NHS Trust.[86] As a result of that review he concluded:[87]
Recent decisions of the House of Lords, Privy Council and the English Court of Appeal have confined X v Bedfordshire CC to its facts and cast doubt upon the decision and the policy factors which there proved so decisive.
[79] SB v State of New South Wales (2004) 13 VR 527.
[80] Attorney General v Prince & Gardner [1998] 1 NZLR 262.
[81] W v Essex County Council [1999] Fam 90.
[82] Waters v Commissioner of Police for the Metropolis [2000] 1 WLR 1607.
[83] Barrett v Enfield London Borough Council [2001] 2 AC 550.
[84] Phelps v London Borough of Hillingdon [2001] 2 AC 619.
[85] B v Attorney-General of New Zealand [2004] 3 NZLR 145.
[86] D v East Berkshire NHS Trust [2004] QB 558.
[87] SB v State of New South Wales (2004) 13 VR 527 at 292.
There was no risk of there being indeterminate liability for an indeterminate period from a finding that a duty of care was owed by the State to the children at the R Centre of whom the plaintiff was one. There was no risk of a “massive obligation”. There was no risk of a “flood of claims”. The situation in the present proceedings may be contrasted with the release of prisoners on parole. A finding of a duty of care owed in respect of indefinite detainees does not mean that a duty of care is owed with respect to parolees. As earlier discussed, persons who are found to be incapable of controlling their sexual instincts present a particular danger to the community that does not arise in the case of the ordinary prisoner.
There were relevantly no conflicting duties that would exclude a duty of care from arising if the salient features otherwise indicated the existence of a duty.
Foreseeability
By July 1988, the Board was aware of O’Shea’s criminal history of sexual offending against young children. That offending occurred in 1960, 1967 and from 1975 to 1978. The offending was serious. Young children had suffered at the hands of O’Shea. Terms of imprisonment had been imposed. O’Shea had been psychiatrically reviewed on many occasions and the conclusion had been reached both medically and legally that he was incapable of controlling his sexual instincts. The Board had held and maintained the view over many years that there was a high likelihood of O’Shea re-offending.
The Board had specifically considered the consequences for children of any such re-offending. As earlier referred to, Dr Scanlon observed at a Board meeting:
But that is what worries me a bit, is that I am pretty sure he is going to re-offend and probably very quickly. In our point of view are we right to let some kid be stuffed up by him to get him off his hook which he has put himself on to. That does concern me because I think we all know that he will re-offend within weeks of getting out. I do not think we have any doubt about it.
It was also well known to the Board that O’Shea was intelligent, manipulative and dishonest. He was not to be trusted. Dr Lucas had reported in 1983, and repeated in 1986 and 1987, that O’Shea was basically dishonest.
The reporting psychiatrists, Dr O’Brien and Dr Lucas, were emphatic that, if O’Shea were to be released, such a release needed to be strictly controlled. Their observations were made against the background of O’Shea’s earlier breaches of his licence conditions. The only material difference in their opinions appeared to relate to the utility of any further medical treatment.
In 1981 and in 1985, O’Shea breached the conditions of his licence prohibiting him from unsupervised contact with children. On each occasion, the Board acted immediately to issue a warrant for O’Shea’s arrest, and he was taken into custody. An examination of O’Shea’s conduct was then undertaken and the decision made that he should remain in custody.
It is against this background that, in 1986, Dr Lucas made the observation earlier referred to that O’Shea should be subject to checks and reviews and that his supervising officer should receive specific and precise instruction.
The risk to children at the R Centre, including the plaintiff, was reasonably foreseeable. It was neither far-fetched nor fanciful. In the present case, the risk was not only reasonably foreseeable, it had been foreseen. Members of the Board and in particular the chairperson and Dr Scanlon, as earlier referred to, specifically foresaw the risk that children would suffer in the event of the release of O’Shea.
The earlier factual chronology demonstrates the extent of the Board’s knowledge of, and views about, O’Shea. That knowledge evolved and was reinforced over time. By mid-1989, the Board was acutely aware of the danger to children posed by O’Shea being permitted to be in the community. The chronology also identifies the actions and inactions of the Board.
Prior to O’Shea’s release on licence in 1988, the Board was aware that O’Shea did not consider his previous conduct to be inappropriate. He did not consider the proposed licence conditions necessary. The Board knew that O’Shea had breached licence conditions by becoming involved in a children’s organisation where the primary focus was teaching children computer skills. The Board was aware that O’Shea maintained a strong interest in teaching computer skills and that this was the area in which he hoped to gain employment. In the period leading to his third release, the Board, and those involved with O’Shea, a supervising officer and Dr Lucas, held the view that O’Shea was likely to re-offend.
Members of the Board considered that there was a high probability of O’Shea re-offending. The chairperson reported to the Minister, in a formal Minute, of her opinion that O’Shea would re-offend. It was reasonably foreseeable to the Board that O’Shea was likely to pay “lip service” to his conditions of licence. It was reasonably foreseeable that O’Shea would take the opportunity to provide computer education and lessons at the R Centre and that, in that process, he would create a scheme to bring himself into contact with children, and thereafter, if the opportunity arose, abuse children to give effect to his paedophilic desires. It was reasonably foreseeable that, when reporting to his supervising officer, O’Shea would lie, deceive and manipulate. It was reasonably foreseeable that, in the absence of checking, O’Shea would go about his criminal pursuits. He had done so in the past and there was every reason to expect that he would do so in the future. O’Shea was incapable of controlling his sexual instincts. The Board had advice to that effect from experts. The Board was of that opinion.
The events from mid-1988 to mid-1989 demonstrated that O’Shea remained a danger to children. The Board had further evidence of O’Shea’s untruthfulness, his manipulative nature and the need for his close supervision whilst in the community. O’Shea’s unexplained conduct in the collection of children’s names and personal details and the use of a false name confirmed this.
It is significant that the Board was sufficiently firm in its opinion that O’Shea remained incapable of controlling his sexual instincts that it again saw fit to convey this opinion to the Minister. It is also significant that the Board considered that O’Shea would “deliberately set up some sort of scheme whereby he comes into contact with young children”. In her report to the Minister, the chairperson expressed the view that it was only a question of time before O’Shea re-offended. The Board had held this view for some years.
Practical Steps the Board could have taken
The Board was able to take practical steps to materially reduce the risks of harm to children at the R Centre. There was an obligation on the Board to supervise persons who had been determined to be incapable of controlling their sexual instincts and who had been subsequently released on licence. The Board had the power to:
-fix appropriate conditions of licence;
-supervise;
-conduct six-monthly reviews;
-conduct an enquiry where necessary including the summoning of persons to provide information and documents;
-upon application vary, revoke or cancel a licence; and
-in appropriate cases upon application, apply for a warrant to be issued for the arrest of the licensee.
Mr Cordingley, O’Shea’s supervising officer, recognised the breadth of the Board’s powers when he sought the Board’s directions as to what steps he should take when supervising O’Shea. Dr Lucas addressed these topics when he spoke of the need to check and supervise actively. The Board’s chairperson spoke of independent enquiries being undertaken. The observations of Doyle CJ in England also confirm the existence of the Board’s obligation to provide effective supervision:[88]
The criteria for release on licence are not identified, but presumably depend upon the court being satisfied that in the interests of the person and of the community it is appropriate to release the person on licence with a view to determining whether he or she can be safely permitted to return to the community…[Sections 23 and 24 of Criminal Law (Sentencing) Act] establish, in general terms, that the regime of detention is subject to regular review, includes the ability to provide for gradual and supervised return to the community, and is subject to overall judicial supervision.
It can be seen that the legislation provides for a regime of detention which is aptly described as preventive, that is preventive in the interests of protecting the community. At least in a case in which sentence has been passed, that is the only function. The passing of sentence means that punishment in the ordinary sense has been imposed. The detention may be seen by the defendant as punitive, but the purpose of the detention appears to be to prevent the defendant from offending again, and so to protect the community from someone who is a real risk to the community, because he or she is incapable of controlling his or her sexual instincts.
...
[T]he detention of the defendant is … subject to review. The defendant’s suitability for release can be tested by release on licence. The court has power to discharge the defendant from detention if and when the interests of the community no longer require that the detention continue.
Having O’Shea, who was known by the Board to be dishonest and manipulative, simply report did not provide any effective supervision or afford any or any real protection to the community. More was required.
[88] R v England (2004) 89 SASR 316 at [34]-[35], [39] (Doyle CJ).
The Board could have introduced a number of practical steps to check that O’Shea was not conducting activities at the R Centre in circumstances where he might come into contact with children. The earlier analysis of the legislative scheme reveals that there were a number of possible measures that the Board was empowered to implement in order to exercise control over O’Shea. It was empowered to conduct investigations, impose more stringent conditions on his licence and, upon application of the Crown, to cancel his licence. Had the Board taken any of these steps, the risk to the plaintiff would have been obviated or at the very least materially reduced.
In July 1990, on receiving notice that O’Shea was acting in breach of the licence conditions, the Board should have heard the loudest “warning bells” sounding. Here was history repeating itself. Dr Lucas’ advice was relevant and pertinent. Had his advice been followed, the ongoing risks to the plaintiff would have been minimised at the very least.
The Board had the power to notify the Crown immediately and request that it apply for the cancellation of O’Shea’s licence. On such an application, the Board had the power to review O’Shea’s release on licence, including the power to cancel his licence immediately and, if appropriate, apply for a warrant to be issued for his arrest.
At the time of O’Shea’s release on licence in 1988, the Board had been dealing with O’Shea for many years. During this time, on two separate occasions, a warrant was issued for his arrest for breach of licence conditions. Those breaches were not insignificant or technical. On both occasions, O’Shea placed himself in situations that enabled him to have direct contact with children.
An inquiry could then have been undertaken into the detailed circumstances of O’Shea’s conduct. This would have brought O’Shea’s circumstances to the attention of those at the R Centre and to the parents of the children there. The fact that the Board after some months conducted a relatively superficial inquiry and issued a warning to O’Shea without any independent investigation or check, and without summonsing Ms S to appear before the Board, was totally inadequate. As earlier observed, the Board’s prompt action in 1991 indicates how quickly and effectively it was able to act.
Vulnerability
When considering the imposition of a duty of care on a statutory authority, the question of vulnerability must be addressed. The plaintiff was vulnerable to harm in the absence of the statutory authority exercising its powers to prevent that harm.[89] The trial Judge, in this respect, concluded:[90]
A child in the plaintiff's position clearly satisfies the requirement of vulnerability, at least at the point that the Board became aware of the R centre. It had actual knowledge that there was a specific class of people, namely, children in the R centre's child care program, who could be at risk from O'Shea.
[89] Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at [100] (McHugh J), Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 464, Pyrenees Shire Council v Day (1998) 192 CLR 330 at 347 (Brennan CJ), 361 (Toohey J), 370 (McHugh J), 389-390 (Gummow J), 421 (Kirby J).
[90] X v State of South Australia (No 2) (2005) 93 SASR 258 at [189].
At relevant times the plaintiff was a young boy who was vulnerable, because of his tender years, to O’Shea’s paedophilic activities. The plaintiff attended the R Centre in circumstances where his mother could expect that he would be protected. He was of a generation and at an age where computers were of prime interest (some might say they were a “magnetic” attraction). In his attendances at the R Centre he was vulnerable. There was a relationship of trust and dependence between the plaintiff and instructors at the centre. O’Shea was an instructor.
Control
The State, through the Board, had powers through which it could control, at least to a material degree, the risk of harm arising from the conduct of O’Shea. It was in a position to remove, reduce or minimise that risk.
The Board was in a position to control persons with paedophilic tendencies who had previously been determined to be incapable of controlling their sexual instincts and who had been released on licence. The Board was in a position to exercise statutory powers to protect persons in the position of the plaintiff from abuse arising from his vulnerability.
As earlier observed, the Board was obliged to give effect to the order of the Court releasing O’Shea into the community. Notwithstanding the order for release, the Board remained of the view that O’Shea’s incapability of control continued. Stringent conditions, checks, and, if appropriate, immediate action were called for. The Board had the power to determine and fix conditions on release designed to provide practical and effective control over O’Shea. It had expert advice as to these matters. It also had the power to conduct enquiries in regard to any conduct that might be in breach of the conditions. The Board had the power following an appropriate application to issue a warrant for his immediate arrest to circumvent any risk of harm in given circumstances.
The vulnerability of the plaintiff and the power and control of the Board need to be considered in the particular circumstances. Those circumstances have been set out in detail in the foregoing analysis of the facts.
Proximity
Proximity, as earlier discussed, is no longer the test to be applied in determining whether a duty of care is owed. However, proximity or “neighbourhood” remains a relevant consideration. There was a proximity in the present case. The Board, in July 1991, became aware that O’Shea was breaching his licence conditions and was working at the R Centre with adults and children. The Board had a responsibility to consider these circumstances and to consider the risk to the plaintiff and to other children at the R Centre. There was a relevant proximity.
Powers and Abilities
As earlier discussed, the Board had the power and ability to exercise control over O’Shea with respect to his conduct at the R Centre. Having learned that O’Shea had breached his licence conditions, the Board could have requested the Crown to make application to it for a review or revocation of the conditions of licence and then to apply for a warrant to be issued. This in fact occurred later. There were other means of control, including conducting an inquiry in regard to the breach, directing that O’Shea have no contact with the R Centre and having the matter properly investigated.
Is the test satisfied?
In the circumstances outlined above, the salient features test is satisfied. The Board owed a duty of care to the children at the R Centre of whom the plaintiff was one. That duty of care required the Board to take reasonable steps, by exercising its powers, to protect the plaintiff. Those steps included the arranging for the Crown to make an application for a warrant to be issued to apprehend O’Shea as soon as practicable, the conduct of an investigation into his activities, and in particular the taking of necessary steps to ensure that the risks to children at the R Centre were included in the investigation. As earlier observed, this was in both the community’s interests and in O’Shea’s interests.
A duty of care was owed by the State to the plaintiff at the time when the Board received information in July 1990 of O’Shea breaching the conditions of his licence and involving himself with children at the R Centre.
Breach of duty
The trial Judge concluded that in the event of a duty of care being owed he would probably conclude that it had been breached.
Three months after O’Shea’s release on licence in 1988, the Board became aware that O’Shea was compiling a list of children’s names and possibly that he was operating under an assumed name. The interview that followed confirmed to the Board that O’Shea was untrustworthy, that he would manipulate situations in order to come into contact with children and would try to cover up, excuse and lie to conceal his true motives.
The Board decided that stricter licence conditions needed to be put in place. However, the Board did not institute extra monitoring or checking to ensure compliance with the conditions. This was notwithstanding Dr Lucas’ advice and notwithstanding the Board’s belief that O’Shea had a sinister motive for collating the information about children and that it was only a matter of time before O’Shea would re-offend.
Considering O’Shea’s past history and repeated breach of licence conditions, there was a heightened need when he was released on licence for the third time to address the protection of children. The Board specifically identified this need. Stringent conditions were called for. Close monitoring of O’Shea was necessary. Behind-the-scenes checks to ensure his compliance with the conditions were required. Specific instructions to the supervising officer was necessary. Instead of implementing these safeguards, the Board softened its approach when dealing with O’Shea.

The Board became actively concerned about O’Shea’s supervising officer’s loss of objectivity. This concern arose in or about October 1989. The concern went so far as to contemplate that the supervising officer put O’Shea’s position before that of the community. This was a serious matter that called for steps to be taken to address the heightened risk that had become apparent.
In November 1989, the Board, and in particular its chairperson, formed the opinion that O’Shea’s supervising officer had lost his objectivity. This was a matter of serious concern. If O’Shea had manipulated his supervising officer then no effective independent checking would occur. To write to the officer’s supervisor was one step, but without more, was insufficient. Why, one might ask, could not a new supervising officer have been appointed given the Board’s views about O’Shea?
The Board was aware that O’Shea wanted to commence teaching computer literacy classes at the R Centre and that children would be present at the centre. The Board refused O’Shea’s request that his licence conditions be changed to enable him to work at the R Centre. However, O’Shea’s assurance that he was complying with the Board’s decision appears to have been treated as sufficient evidence of compliance. There is no evidence to indicate what Mr Cordingley or the Board understood O’Shea to be doing with his time during the twelve-month period from the time that his request was declined to when the Board learnt that he was attending the R Centre. A telephone call would have revealed that O’Shea had defied the Board and was working at the R Centre. Rather than checking, the Board reduced O’Shea’s reporting obligations to a fortnightly requirement.
In July 1990, the Board finally became aware that O’Shea had been attending and teaching at the R Centre notwithstanding its earlier refusal to permit him to do so. However, the Board took no immediate action. The Board appeared to accept O’Shea’s assurance, together with the report of Mr Cordingley (the supervising officer, whose objectivity was a matter of concern for the Board) and the letter of Ms S to the effect that O’Shea had not been inappropriately in contact with children. It was unreasonable for the Board to simply rely upon the letter of Ms S and the report of Mr Cordingley without clarifying and confirming the information. A simple interview would have revealed that O’Shea had already had contact with the plaintiff, that Ms S did not have the full understanding or knowledge of O’Shea’s background and that she had only recently learnt that O’Shea had been previously convicted of a sexual offence.
There was no suggestion of any further investigations or checks made by the Board or any other agency. The Board was content simply to warn O’Shea. The Board later informed O’Shea that his licence conditions did not prevent him from working at the R Centre.
The Board’s approach did not deliver the message to O’Shea that there would be swift and decisive action in the event of breach. The Board’s message was to the opposite effect. O’Shea was aware that he was not being supervised in a manner that would disclose his dishonesty, that he’d been able to hide the truth about his activities from his supervising officer and that the R Centre was unaware of his true circumstances.
The Board did not appear to attend to Dr Lucas’ advice. The Board did not let O’Shea know that it would act rapidly and without question to revoke his licence in circumstances where he was not abiding fully by the conditions of his licence. More importantly, the Board did not take steps to instruct O’Shea’s supervising officer of exactly what action should be taken in supervision of O’Shea and, most importantly, what “checks [O’Shea] should be subjected to”.
There appears to have been a degree of naivety in the Board’s approach. The most stringent licence conditions, in the case of O’Shea, would not protect the community as long as they remained unchecked and unsupervised. Given O’Shea’s manipulative and dishonest nature one could not expect truthful reporting by O’Shea to his supervising officer. The opposite could be expected. Given his manipulative nature, members of the public could expect to be “taken in” by O’Shea. His prior breaches and on-going conduct when investigated provided a clear and reported demonstration of the above. The Board members were dealing with a person whom they, and the psychiatric advisers, considered to be incapable of controlling his sexual instincts, and who would go to manipulative and dishonest lengths to place himself in positions of trust and influence with young children.
Why, one may ask, should not the recommendations of Dr Lucas have been followed? They provided a means of addressing the real concern and the protection needed by the community upon O’Shea’s release. Given the known history, the recommendations of Dr Lucas may be suggested to be prudent and to represent the common sense approach that should have been adopted.
In June 1991, O’Shea was again before the Board. On this occasion he had placed an advertisement in a local newspaper encouraging children to join a computer club of which he was the chairperson. O’Shea told Mr Cordingley and the Board that he saw no difference between teaching at the R Centre, which the Board had permitted him to do, and running the club, providing that adults were present. Mr Cordingley informed the Board by letter of his belief that O’Shea did not believe that he was contravening his licence conditions despite the clarity of condition 13, which stipulated that O’Shea was not to be involved in any organisation, or in the formation of any organisation, that directs children’s activities.
The action taken by the Board was to warn O’Shea not to have contact with children. The Board required the advertisement to be removed, and prohibited O’Shea from further involvement as chair of the organisation. It was only following a complaint made regarding abuse of the plaintiff by O’Shea that the Board took the steps to have a warrant issued for O’Shea’s arrest.
The Board was operating in circumstances where it had contact with O’Shea over a lengthy period. It had a clear understanding of O’Shea’s manipulative character and his propensity to initiate schemes to come into contact with children. The Board knew that O’Shea had previously been determined to be incapable of controlling his sexual instincts. The Board had formed the view that it was only a matter of time before O’Shea would re-offend. As the trial Judge correctly concluded, the Board’s approach was too casual. The State owed a duty to the plaintiff to take care, and that duty had been breached.
The evidence of breach of duty was overwhelming. The Board should have had regard to the factors mentioned earlier, in particular the history of incidents, the Board’s opinion that O’Shea would re-offend, and the foreseeability of harm to children that would arise. As the trial Judge found:[91]
Once the Board became aware of O'Shea's involvement with the R centre, the details of which are discussed above, it was reasonably foreseeable that O'Shea might abuse a child at the R centre. This is reflected in the Board's initial refusal to allow O'Shea to conduct adult computer classes at the centre.
[91] X v State of South Australia(No 2) (2005) 93 SASR 258 at [187].
The Board’s view of O’Shea’s dishonest and manipulative nature, the Board’s view of Mr Cordingley’s loss of independence, and the Board’s advices from Dr Lucas, all called for immediate action. Simply to set in motion an enquiry and to warn O’Shea again was totally inadequate to discharge the duty of care. As the trial Judge concluded:[92]
In my view, the failure by the Board to follow up O'Shea's breach of conditions, by positive action including further inquiry, would amount to a breach of duty if the Board was capable of owing any duty of care.
[92] X v State of South Australia (No 2) (2005) 93 SASR 258 at [174].
As earlier observed, this is a case where a public authority has exercised its statutory powers and created a relationship importing a duty of care. That duty to be discharged required the continuation and additional exercise of the public authority’s statutory powers. A duty of care was owed and breached.
Damages
The trial Judge assessed the damages at $381,750. This was on the hypothesis of a breach of duty occurring in or about July 1990. The plaintiff did not seek to review this assessment.
By way of Notice of Alternative Contention, the State challenged the award of damages. The State said that the approach of the trial Judge was incorrect. The State said that the major damage to the plaintiff had been sustained prior to July 1990.
The State further complained that the trial Judge made no reduction in respect to the past loss of earning capacity on account of the damage sustained prior to July 1990, and that the award of $24,000 under that head was excessive. The State contended that the Judge should not have allowed any amount for past special damages as it was said that those expenses would have been required in any event as a result of the earlier abuse suffered by the plaintiff, before the time at which the Board was found to be liable. Finally, the State complained that the amount of $20,000 for future medical treatment was excessive.
With respect to the damages, the trial Judge made the following observations:[93]
This young man’s life has been ruined, but he has no legal remedy against the Board in my view. The tragedy is that, even if he were to succeed, the amount of his damages would be limited considerably by virtue of the causal factors mentioned above. This means simply that if he were successful, in my view he would only be compensated for a proportion of his full entitlement to damage based on the severe trauma and losses which he has suffered.
Nonetheless, I have proceeded to assess damages for the benefit of any appeal court. If I had found that there was a duty of care and also found that the Board was in breach of that duty, I would have awarded the plaintiff the sum of $381,750 including interest. Regrettably for the plaintiff, I am not able to make such an award.
[93] X v State of South Australia (No 2) (2005) 93 SASR 258 at [9].
The question is what loss, if any, the plaintiff sustained as a result of the breach of duty of the State. It is sufficient that the breach of duty was a material cause. It matters not that there were other causes. Once loss is established an assessment should be made.
Applying the common sense test of causation, the trial Judge reached the conclusion that the breach of duty was a cause of loss. The abuse of the plaintiff continued after July 1990. That abuse would not have occurred had the Board acted. The Judge was correct to reach the conclusion that in the event of a breach of duty, loss had been suffered. Equally, it may be said that the damage sustained to the plaintiff after July 1990 was a material cause of his later difficulties with employment, and was a material cause of the plaintiff’s need for medical treatment in the future.
Viewed generally, the award as contemplated by the trial Judge was within the range of damages to be assessed for the injuries sustained. Even if one were to discount the allowances of past loss of earning capacity and for the cost of future treatment, the overall award remains reasonable. In particular, it might be said that in the circumstances the overall award was modest and that if there were any over-allowance for past loss of earning capacity or future expenses they were compensated for by the modest allowance for the plaintiff’s pain and suffering.
The trial Judge’s assessment of damages was appropriate and well within his discretion. The alternative contention should be dismissed.
Conclusion
This appeal should be allowed. The judgment dismissing the plaintiff’s claim should be set aside. Judgment should be entered for the plaintiff in the amount of $381,750.00. I would hear the parties as to the terms of any consequential order.