X v South Australia (No 3)

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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…

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Details
Case
[2007] SASC 125
Decision Date

CaseChat Overview and Summary

In the matter of X v South Australia (No 3), the plaintiff, X, sought damages for personal injuries sustained as a result of the actions of the defendant, South Australia, through the Parole Board. The central issue before the court was the measure and remoteness of damages for personal injury, specifically considering the loss of earnings and earning capacity. The court had to determine whether the trial judge's assessment of damages was appropriate and within his discretion.

The legal issues revolved around the proper measure of damages for personal injuries and whether the trial judge had correctly assessed the plaintiff's loss of earnings and earning capacity. The plaintiff argued that the trial judge had erred in his assessment, while the defendant contended that the trial judge's decision was appropriate and within his discretion.

The court found that the trial judge's assessment of damages was appropriate and well within his discretion. The court dismissed the contention that the assessment was incorrect, noting that the trial judge had carefully considered all relevant factors. The court concluded that the trial judge's judgment dismissing the plaintiff's claim should be set aside and that judgment should be entered for the plaintiff in the amount of $381,750.00. The court further directed that the parties be heard regarding the terms of any consequential orders.

Orders

Orders of the court

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Background

Background to the litigation

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. BACKGROUND2.1 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DUGGAN J DEBELLE J (dissent)
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.

Ratio Decidendi

Legal Principle Established

Established by: DUGGAN J,

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