X v State of South Australia
[2003] SASC 343
•3 October 2003
X v STATE OF SOUTH AUSTRALIA
[2003] SASC 343
Civil
BESANKO J X has brought an action in this Court against the State of South Australia (“the State”). He claims damages for the injury, loss and damage he suffered as a result of being sexually assaulted by two men. X claims that he was sexually assaulted by Lawrence John Edward O’Shea (“O’Shea”) between 14 April 1990 and July 1991. He claims that he was sexually assaulted by Colin Humphrys (“Humphrys”) between April and July 1991. The sexual assaults involving O’Shea were acts of sexual intercourse and fellatio and those involving Humphrys included acts of indecency and attempted homosexual intercourse. It is unnecessary to discuss the details of the injury, loss and damage which X claims he suffered.
X’s claim against the State is based on the tort of negligence. He claims that certain bodies and persons owed him a duty of care and that they breached the duty of care which they owed him. He claims that the State is liable for the negligence of those bodies and persons. In relation to the sexual assaults alleged to have been committed by O’Shea, he claims that the Parole Board (“the Board”), Geoffrey Cordingley (“C”), the Department of Family and Youth Services (“FAYS”), Phyllis Howes (“H”) and Francesca Seith (“S”) were negligent. The Board is a body established under the Correctional Services Act 1982 (“CSA”) and it has various powers and functions under that Act and other legislation, including the Criminal Law (Sentencing) Act 1988 (“CLSA”). By reason of s 60A of the CSA, any liability that would otherwise attach to a member of the Board in relation to the exercise of powers or functions or the discharge of duties under the Act shall lie against the Crown. C was a probation and parole officer employed by the Department of Correctional Services. He was given certain powers and functions under the conditions of licence issued under the CLSA. Any liability that would otherwise lie against C in relation to the exercise of powers under the CSA lies against the Crown (s 86A CSA). FAYS or its predecessor is said to be the State Government Department which was responsible for the welfare of children in this State. It is unnecessary to trace the history of the Department which was responsible for the administration of the Community Welfare Act 1972 (renamed in 1993 the Family and Community Services Act). For present purposes I can describe the relevant department as FAYS. H was a senior social worker employed by FAYS and S was an employee of FAYS. Any liability that would otherwise lie against H and/or S in relation to the exercise of powers under the Family and Community Services Act lies against the Crown (s 235A of the Family and Community Services Act 1972).
In relation to the assaults alleged to have been committed by Humphrys, X claims that C and Ann Johnson (“J”) were negligent. J was a probation and parole officer employed by the Department of Correctional Services. As with C, any liability that would otherwise lie against J lies against the Crown. In relation to a prisoner released on parole, C and J had powers to give that prisoner certain directions (Correctional Services Regulations 1985 reg 62).
The State has brought an application seeking an order that the Statement of Claim be struck out as disclosing no reasonable cause of action. The State relies on r 46.18 of the Supreme Court Rules 1987 which relevantly provides that a pleading may be struck out (in whole or in part) if the court is satisfied that the pleading discloses no reasonable cause of action, and on the inherent jurisdiction of the court to dismiss proceedings that fail to show a reasonable cause of action. The main thrust of the argument is that the bodies and persons for whom the State is said to be liable did not owe a duty of care to the plaintiff. Alternatively, it is said that certain paragraphs should be struck out as disclosing no reasonable cause of action, again because the particular body or person for whom the State is said to be liable did not owe a duty of care to the plaintiff. In the further alternative, it is said that certain paragraphs should be struck out on other grounds set out in r 46.18.
At the first hearing of the State’s application, counsel for the plaintiff accepted that certain amendments to the Statement of Claim were necessary. I gave the plaintiff the opportunity to make amendments and the relevant Statement of Claim for the purposes of these reasons is the document attached to the Amended Outline of Submissions for the Plaintiff (in reply) dated 20 May 2003.
The application to strike out the Statement of Claim or parts thereof as disclosing no reasonable cause of action is to be determined on the assumption that the allegations of fact in the Statement of Claim are correct. The onus on the State is a heavy one in the sense that it must be clear that the duties of care upon which the plaintiff relies do not exist (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125).
In the discussion which follows, I will refer to the legislation as it was at the time of the alleged incidents. I will refer to the allegations of fact as if they are the facts which have been proved.
The Facts and the Allegations of Negligence
The Statement of Claim is not as clear as it might be. On occasions the facts are not set out in a logical fashion and a fact, which may be relevant to whether a duty of care exists, is found in an allegation of breach. On at least one occasion, particulars of knowledge of a fact are contained in the allegations of breach. Doing the best I can, I set out below what I understand to be the relevant facts. I also set out the relevant allegations of negligence.
I start with the facts and allegations of negligence relating to the unlawful conduct of O’Shea.
The plaintiff was born on 26 July 1980. The sexual assaults of the plaintiff by O’Shea took place between 14 April 1990 and July 1991 at a place identified as Z and at the R Centre. The R Centre was an incorporated association in the State of South Australia. It conducted a number of activities on premises. The aim of those activities was to provide a social focus for the surrounding area where people could meet and share common interests. The programmes conducted at the premises included child care, children’s school holiday programmes and classes for children under 16 years of age.
O’Shea had a long history of sexual offences. On 31 October 1960 O’Shea was convicted of three counts of indecent assault upon a nine year old girl contrary to s 56 of the Criminal Law Consolidation Act 1935 (“CLCA”). O’Shea was given a sentence of two years’ imprisonment and was released on 20 February 1962. On 3 July 1967 O’Shea pleaded guilty to three counts of indecent assault upon three young boys contrary to s 56 of the CLCA. He asked the sentencing Judge (Hogarth J), when imposing sentence, to take into account three other offences of a similar nature which he had committed on a boy aged 10 years and a girl aged 11 years.
On 26 July 1967 Hogarth J ordered that O’Shea be detained in an institution for a period of three years pursuant to s 77A of the CLCA and to enter into the following recognisance:
“TAKE NOTICE that the conditions of the bond with which you are required to comply after your release are as follows:
1. That you shall remain at the said institution after the completion of the said period of three years detention until the Medical Superintendent (for the time being) shall have given his consent and approval in writing to your leaving the institution.
2. That you shall be under the supervision of a Probation Officer during the said period.
3. That during the said period after your release from the institution you shall obey the directions of the Probation Officer as to your residence and medical treatment, including residence and medical treatment in an institution.”
Hogarth J also ordered that if O’Shea committed a breach of his bond he would be liable to forfeit the sum of $500 or to be imprisoned for any term up to 12 months.
On 19 December 1977 O’Shea pleaded guilty to two further counts of indecent assault contrary to s 56 of the CLCA. On 21 December 1977 Jacobs J made the following order in relation to O’Shea:
“The formal orders I make today are that I direct an examination of the prisoner under Section 77(a) of the Criminal Law Consolidation Act such examination to be conducted by three medical practitioners, one of whom shall be Dr Litt the practitioner of the accused’s own choosing, and the other two practitioners, any two practitioners on the panel appointed for that purpose …”
On 20 February 1978 Jacobs J made the following order in relation to O’Shea:
“The formal order of the Court is that in lieu of imposing any sentence on either count in the information, I direct that the prisoner be detained at an institution during Her Majesty’s pleasure.”
On 15 December 1980 O’Shea was released on licence pursuant to s 79(a) of the CLCA. On 27 January 1981 a report was made to the Board to the effect that O’Shea had been associating with children contrary to the conditions of his release on licence. On 2 February 1981 O’Shea was brought before the Board and returned into custody.
On 27 September 1983 and upon the recommendation of the Board, an order was made in the following terms:
“The Governor in and over the State of South Australia and its Dependencies in the Commonwealth of Australia acting on such recommendation and with the advice and consent of the Executive Council and pursuant to the Criminal Law Consolidation Act, 1935 and all other powers orders the release of O’Shea on licence for a period of three calendar months commencing on Tuesday 27 September 1983 subject to the following terms and conditions determined by the Governor upon the recommendation of the Parole Board:
‘1 That Lawrence John Edward O’Shea shall be of good behaviour, keep the peace towards all persons and shall not commit any breach of the law.
2 That Lawrence John Edward O’Shea shall not frequent undesirable places or associate with undesirable persons.
3 That immediately upon his release Lawrence John Edward O’Shea shall report as directed to the Assistant Director Probation and Parole Department of Correctional Services, or the Parole Officer assigned to him.
4 That Lawrence John Edward O’Shea shall carry out faithfully all instructions and the requests of the Parole Officer under whose supervision he is from time to time placed.
5 That Lawrence John Edward O’Shea shall report to the Parole Officer as and when he is required by the Parole Officer to do so and to the satisfaction of the Parole Officer.
6 That Lawrence John Edward O’Shea shall not attempt to depart from his place of residence or the State of South Australia without the prior written permission of his Parole Officer.’ ”
On 27 September 1983 O’Shea was released on licence, and he remained at large on licence on the terms and conditions referred to above until about 9 July 1985.
On 9 April 1985 it was brought to the attention of the Board that O’Shea, under an assumed name, was operating a camp for disabled children. On the same day a warrant was issued for his apprehension and O’Shea was returned to custody.
On 1 December 1987 the Board made a recommendation to the Governor that O’Shea be released on licence pursuant to s 77A of the CLCA subject to the following conditions:
“(a) That he shall not commit any offence.
(b) That he shall be under the supervision of a Parole Officer, and that he shall obey the reasonable directions of the Parole Officer.
(c) That he be of good behaviour, keep the peace towards persons and not commit any breach of the law.
(d) That he carry out faithfully all instructions and requirements of the Parole Officer under whose supervision he will be placed.
(e) That he report as and when required by his Parole Officer.
(f) That he attend for interviews as and when required by his Parole Officer.
(g) That he does not depart or attempt to depart from the State of South Australia without the prior written permission of the Parole Officer.
(h) That immediately upon his release he reports to the Parole Officer.
(i) That he obeys the directions of his Parole Officer with regard to his employment and accommodation.
(j) 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.
(k) That he does not join or become involved in any organization 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.
(l) 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.
(m) That he does not live outside the metropolitan area of Adelaide without the prior written permission of the Parole Board.
(n) That he does not use a false name or undertake any activity under a false name.
(o) That he does not change his name without the prior written permission of his Parole Officer.”
Following the recommendation of the Board referred to above O’Shea was released on licence on 13 July 1988 subject to 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 complied 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 requirements of the Parole Officer under whose supervision he has from time to 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 he report weekly in person to the Parole Officer under whose supervision he has from time to time been placed and this is not to be varied without 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 organization 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.”
On 3 May 1989 the Crown Solicitor applied for a variation of the conditions of licence in respect of O’Shea and his licence was varied so as to include the following conditions:
“(a) That he does not contact or attempt to contact either personally, by letter or by telephone any child under the age of 16 years and further 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, providing that this condition shall not apply to the children of his marriage.
(b) He does not join or attempt to join attempt to form or become involved in any organisation or formation of any organisation which either directs children’s activities, raises money for, or on behalf of children’s charities.
(c) That he does not himself, either directly or indirectly, attempt to become involved, or become involved with children or children’s activities, save and except activities solely relating to the children of his marriage.
(d) That he does not place attempt to place or arrange to place by advertisement or notice in any newspaper, magazine or other written publication any advertisement without the contents of such advertisement or notice having first been approved in writing by his Parole Officer.
(e) That he does not record, collate, retain or collect names addresses or any other information relating to children other than personal information relating to the children of his marriage.”
Although it is not made clear in the Statement of Claim, I assume that some of these conditions replaced some of the conditions imposed on 13 July 1988 (compare, for example, condition 13 and condition (a)).
Between approximately January 1990 and early 1991, the plaintiff went to the R Centre and engaged in organised activities for children conducted at the Centre.
The Board and C received certain information about O’Shea’s activities whilst he was on licence and before the alleged sexual assaults. It is not easy to state the position in chronological order because of the way in which the allegations are set out in the Statement of Claim. The facts concerning the knowledge of the Board and C appear to be as follows:
The Board interviewed O’Shea on 7 February 1989. As a result of the interview, the Board was aware that O’Shea had advertised in newspapers or magazines to teach computer based activities, and that O’Shea had accumulated lists of children’s names.
In 1989, Mr Geoff Pope was the Chief Clinical Psychologist of the Beaufort Clinic. He prepared a report addressed to C dated 15 June 1989. In that report, Mr Pope stated that O’Shea had an opportunity to teach basic computer skills at the R Centre, but because the Centre also conducted other programmes for children and had crèche facilities for mothers attending day time programmes at the R Centre, the taking up of the opportunity could give rise to a possible breach of condition 12.
C made a request in writing to the Board dated 21 June 1989 that there be a variation in the condition of O’Shea’s licence and, in particular, that there be a variation of the clause relating to no contact with children to allow O’Shea to conduct a computer course. The request was not approved by the Board and C was advised of that fact in a memorandum dated 27 June 1989. I think that this is probably what is referred to elsewhere in the Statement of Claim as “the Parole Board’s ruling”.
In approximately 1990, the Board received information that O’Shea had placed an advertisement in regard to the giving of computer lessons to children. The Board summonsed O’Shea to attend before it and ascertained that O’Shea was the chairman of a group teaching computer techniques to children. The plaintiff alleges that the Board failed to cancel O’Shea’s licence and failed to return him into custody. The fact that the time of this alleged incident can be identified no more precisely than “approximately 1990” creates a difficulty in determining what weight to place on this fact.
In July 1990 the Board was informed that O’Shea was giving computer lessons to a group of children at the R Centre. The plaintiff alleges that such action was contrary to the Board’s ruling and to various conditions of the licence. The Board ordered that a warning letter be sent to O’Shea.
In June 1991 the Board became aware that O’Shea had placed advertisements with regard to children’s computer classes in breach of various conditions of the licence. The Board warned O’Shea not to have contact with children under 16 years of age and to remove any advertisement with regard to children’s computer classes.
As a result of the sexual assaults by O’Shea and the alleged negligence of the Board and/or C, the plaintiff has been severely traumatised and has suffered injury, loss and damage.
In or about August 1990 S, an employee of FAYS, became aware through an anonymous report that a paedophile was working in a local neighbourhood house. On 17 September 1990 H, an employee of FAYS, became aware, following a report from a member of the public, that O’Shea was employed as a volunteer teaching computer skills to adults and children at the R Centre. In or about October 1990, S made enquiries and discovered that O’Shea was working at the R Centre. It is alleged that FAYS was the relevant State Government Department responsible for the welfare of children in the State of South Australia and that it owed a duty of care to the plaintiff. It is alleged the duty included a duty to investigate events at the R Centre following information received by it regarding O’Shea, to take all appropriate steps to ensure that the plaintiff was not exposed to the risk of sexual assault by O’Shea, to determine whether or not the plaintiff had been sexually assaulted by O’Shea once it became aware O’Shea had been having contact with the plaintiff and, in the event that the plaintiff was sexually assaulted by O’Shea, to take steps to investigate the sexual assault and to inform the plaintiff’s mother.
The plaintiff alleges that the Board and C owed to the plaintiff a general duty of care to supervise O’Shea. Paragraph 25 of the Statement of Claim provides as follows:
“25.At all materials times the Parole Board and Cordingley were jointly and severally responsible for the general supervision of O’Shea and in particular were responsible for ensuring that he complied with all of the conditions set out in paragraphs 23 and 24 thereof.
25.1 The Parole Board and/or Cordingley were aware or ought to have been aware of the facts set out in paragraphs 12 to 24 inclusive hereof.
25.2 The Parole Board and/or Cordingley were aware or ought to have been aware of their respective duties as set out in paragraph 25 hereof.
25.3 The Parole Board and/or Cordingley knew or ought to have known that at all material times O’Shea possessed and would in all likelihood continue to possess a disposition towards paedophilia.
25.4 The Parole Board and/or Cordingley knew or ought to have known from their respective experience that paedophiles were persons who were likely to continue with or revert to paedophilic behaviour if such persons were not given appropriate supervision.
25.5 The Parole Board and/or Cordingley knew or ought to have known that O’Shea was likely to associate with other paedophiles and/or ‘networks’ of paedophiles and as a result of which young children such as the plaintiff were likely to be at risk of suffering sexual abuse.”
The particulars of breach of duty by the Board in relation to O’Shea are as follows:
“32.The Parole Board was in breach of the duty of care owed to the plaintiff and accordingly the Parole Board and Cordingley were negligent.
PARTICULARS OF NEGLIGENCE OF THE DEFENDANT
(BY THE ACTS OR OMISSIONS OF THE PAROLE BOARD)
The First Defendant by the Parole Board was negligent in that it:
32.1Having become aware in July 1990 that O’Shea was giving computer lessons to children at the said Centre, which was in disregard of a ruling of the Parole Board and in breach of conditions 12 and 13 of the licence dated 13 July 1988 referred to in paragraph 23A hereof and in breach of conditions (a), (b) and (c) of the conditions of licence granted to O’Shea on the 3rd day of May 1989 as set out in paragraph 24 hereof merely ordered that a warning letter be sent to O’Shea.
32.2Having become aware in June 1991 that O’Shea had placed advertisements with regard to children’s computer classes, in breach of condition 12 and 13 of the licence dated 13 July 1988 referred to in paragraph 23A hereof and in breach of conditions (a), (b) and (c) of the conditions of licence granted to O’Shea on the 3rd day of May 1989 as set out in paragraph 24 hereof merely warned O’Shea not to have contact with children under 16 years of age and to remove any advertisement with regard to children’s computer classes.
32.2A PARTICULARS OF KNOWLEDGE OF DEFENDANT
As a result of an interview of O’Shea by the Parole Board on 7 February 1989 the defendant was aware:
32.2A1.1 That O’Shea advertised in newspapers or magazines that he offered to teach computer based activities;
32.2A1.2 That he had accumulated lists of children’s names;
32.2A2 The Crown Solicitor made an application dated 4 May 1989 to the Parole Board recommending that conditions Numbers 12 and 13 of the licence dated 13 July 1988 be revoked and that the new conditions numbered 12, 13, 13A, 13B and 13C be imposed as follows:
Condition 12 That he does not contact or attempt to contact either personally, by letter or by telephone, any child under the age of 16 years and further 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, providing that this condition shall not apply to the children of his marriage.
Condition 13 He does not join, or attempt to join, attempt to form or become involved in any organisation or the formation of any organisation which either directs children’s activities, raises money for, or on behalf of children’s charities.
Condition 13A That he does not himself, either directly or indirectly, attempt to become involved, or become involved with children or children’s activities, save and except activities solely relating to the children of his marriage.
Condition 13B That he does not place, attempt to place, or arrange to place by advertisement or notice in any newspaper, magazine or other written publication, any advertisement without the contents of such advertisement or notice having first been approved in writing by his Parole Officer.
Condition 13C That he does not record, collate, retain or collect names, addresses or any other information relating to children other than personal information relating to the children of his marriage.
32.2A3. From a report of Mr Geoff Pope, Chief Clinical Psychologist of the Beaufort Clinic addressed to Cordingley and dated 15 June 189 that O’Shea had an opportunity to teach basic computer skills at the R Centre but that the Centre also conducted other programs for children and had crèche facilities for mothers attending day time programs at the R Centre and that this could give rise to a possible breach of condition number 12 herein above mentioned in paragraph 32.2A.2.
32.2A4. The Parole Board in a memorandum to Cordingley dated 27 June 1989 did not approve Cordingley’s request dated 21 June 1989 that there be a variation in the conditions of O‘Shea’s licence and in particular that there be a variation of the clause relating to no contact with children to allow O’Shea to conduct a computer course.
32.3Failed to despite the breaches by O’Shea revoke the licence referred to in paragraphs 23, 24 and 32.1 above, to issue a warrant for the apprehension and detention of O’Shea, summons him to appear before the Board, or to take steps to have the Crown Law Department or Director of Public Prosecution to bring an application to revoke the said licence in relation to breaches by O’Shea of the conditions of the said licence.
32.4Permitted O’Shea to continue to work at the said Centre.
32.5Failed to take any steps to protect the plaintiff when it knew of O’Shea’s convictions for sexual offences against children and when it knew O’Shea had been committed under section 77(a) of the Criminal Law Consolidation Act as being unable to control his sexual impulses.”
The plaintiff states that there is an error in numbering and that paragraphs 32.2A 2, 32.2A 3 and 32.2A 4, should be 32.2B.1, 32.2B.2 and 32.2B.3 respectively. Even so, I cannot see how these particulars can be particulars of breach as distinct from matters the plaintiff alleges gives rise to a duty of care. I will treat them in that way.
The particulars of breach of duty by C in relation to O’Shea are as follows:
“33. The Plaintiff says that C was in breach of the duty of care owed to the plaintiff and accordingly was negligent.
PARTICULARS OF NEGLIGENCE OF THE DEFENDANT
(BY THE ACTS OR OMISSIONS OF CORDINGLEY)
The defendant by Cordingley was negligent in that it:
33.1Failed to supervise O’Shea either adequately or at all upon his release on parole from the 13th day of July 1988.
33.2Failed to take action to protect the plaintiff when it became aware of the breaches by O’Shea of the conditions of his licences which had been reported to Cordingley.
33.3Failed to investigate or investigate adequately the alleged breaches by O’Shea of his licence conditions which had been reported to Cordingley.
33.4Failed to take proper care that O’Shea did not commit any breach of the said licence conditions.
33.5Failed to take any or any adequate steps to enforce the said licence conditions which had been imposed upon O’Shea.
33.6Permitted O’Shea to teach children and to conduct a computer club and to continue to run a computer club for children at the said Centre which provided child care for children under 16 years.
33.7From June 1990 permitted O’Shea to attend each and every school holiday program conducted at the R Centre and permitted O’Shea to continue to associate with children under the age of 16 years including the provision of computer classes and day trips for such children.
33.8Failed to administer enforce or supervise in a proper manner or at all the said conditions for release in the aforesaid licences.
33.9Failed to take steps to ensure that O’Shea was to return to custody when it knew or ought to have known that O’Shea was in breach of the conditions of the licences.”
The particulars of breach of duty by FAYS, S and H in relation to O’Shea are as follows:
“PARTICULARS OF NEGLIGENCE OF THE DEFENDANT
(BY THE ACTS OF FAYS AND/OR HOWES AND/OR SEITH)
The Defendant by FAYS and/or Seith and/or Howes was negligent in that it;
51.1Failed to take any or any adequate steps to investigate the circumstances of O’Shea’s involvement at the R Centre.
51.2Failed to take any or any adequate steps to ensure that the plaintiff not be exposed to the risk of sexual assault by O’Shea.
51.3Failed to take any or any adequate steps to investigate whether or not the plaintiff had been sexually assaulted by O’Shea.
51.4Failed to inform the plaintiff’s mother that a known paedophile had been giving computer lessons to her son at the R Centre.”
I turn now to the facts and allegations of negligence relating to the unlawful conduct of Humphrys.
The sexual assaults of the plaintiff by Humphrys took place between April and July 1991. The plaintiff was introduced to Humphrys in about April 1991. It is said that this occurred as a result of the defendant’s failure to ensure that O’Shea was returned to custody, but there is no specific pleading that it was O’Shea who introduced Humphrys to the plaintiff. Humphrys is a paedophile who was released from prison on 25 March 1991. Humphrys had committed sexual offences against children over a period commencing in about 1973, including the offence of children stealing. It is alleged that C and J were aware of this particular history. After he was released from custody on 25 March 1991, Humphrys was supervised by C and J whilst on parole.
On 5 July 1991 C informed the Board that Humphrys had not reported to him as part of the conditions of his parole. It is alleged that as a result of the information, the defendant knew Humphrys was in breach of the conditions of his parole and the defendant should have taken steps to ensure that there was a warrant for Humphrys’ arrest. It is not clear to me whether the reference to “the defendant” is a reference to the State, or the State by Board, or the State by C, or the State by FAYS or H or S. A later pleading suggests that the plaintiff’s case is that it is the State by C (para 44.7).
On 7 July 1991 Humphrys abducted the plaintiff and took him to another State. He committed numerous sexual acts upon the plaintiff. He was later convicted of various sexual offences in the District Court of that State.
C and J were aware, or ought to have been aware (the plaintiff alleges), of the criminal record of Humphrys which contained various convictions for sexual offences, some of which involved offences against children and, in particular, he had a prior conviction in 1985 for child stealing and a conviction for two counts of gross indecency with a male under 16 years of age, three convictions for loiter for a homosexual purpose, a further conviction for three counts of gross indecency, and a conviction for unlawfully causing a person to take a drug with intent to commit an indictable offence. I am not sure how this allegation of knowledge or imputed knowledge sits with the allegation of actual knowledge in paragraph 3 above.
The plaintiff further alleges that C and J knew, or ought to have known, that Humphrys was likely to associate with child sex offenders. No particulars of the knowledge or imputed knowledge are given. C knew, or ought to have known, that Humphrys had made the acquaintance of O’Shea and that this could bring Humphrys in contact with the R Centre and with children who attended the Centre. Again, no particulars of knowledge or imputed knowledge are given. A person not identified in the Statement of Claim at a time not identified in the Statement of Claim made “pre-release recommendations in relation to the need for sexual counselling”.
As a result of what is alleged to have been C’s and/or J’s negligence, the plaintiff was introduced to Humphrys and was sexually assaulted, abducted and taken to another State by Humphrys. As a result, the plaintiff has been severely traumatised and has suffered loss and damage.
The particulars of breach of duty by C and J in relation to Humphrys are as follows:
“44.Cordingley and Johnson had a duty of care to ensure that Humphrys did not commit offences against the plaintiff. Cordingley and Johnson were in breach of that duty of care and accordingly were negligent.
PARTICULARS OF NEGLIGENCE OF THE DEFENDANT
(BY THE ACTS OF CORDINGLEY REGARDING HUMPHRYS)
In respect of Humphrys the defendant by Cordingley was negligent in that it:
44.1 Failed to make any or any reasonable enquiries as to whether or not Humphrys had associated with O’Shea or was associating with O’Shea when he knew or ought to have known that Humphrys had a prior criminal history of sexual offences against children.
44.2 Failed to make any or any reasonable enquiries as to whether or not Humphrys had attended or was attending at the R Centre and associating with children when he knew or ought to have known that Humphrys had a prior criminal history of sexual offences against children.
44.3 Failed to recognise that Humphrys’ criminal record indicated a tendency to commit sexual offences against children and pre-release recommendations in relation to the need for sexual counselling.
44.4 Failed to make any or any adequate enquiries as to whether or not Humphrys was associating with children during the period of his parole.
44.5 Failed to provide any or any adequate counselling to Humphrys regarding his prior sexual offences against children.
44.6 Failed to refer Humphrys to appropriate counselling in respect of his prior sexual offences against children.
44.7 Failed to take steps to have a warrant issued for Humphrys’ arrest when it became aware that he was in breach of the terms of his parole by not reporting to his Parole Officer.
PARTICULARS OF NEGLIGENCE OF THE DEFENDANT
(BY THE ACTS OF JOHNSON REGARDING HUMPHRYS)
45. In respect of Humphrys the defendant by Johnson was negligent in that it:
45.1Failed to recognise that Humphrys’ criminal record indicated a tendency to commit sexual offences against children.
45.2Failed to make any or any adequate enquiries as to whether or not Humphrys was associating with children during the period of his parole.
45.3Failed to provide any or any adequate counselling to Humphrys regarding his prior sexual offences against children.
45.4Failed to refer Humphrys to appropriate counselling in respect of his prior sexual offences against children.”
In his written submissions the plaintiff summarised his case in the following way:
“The case against the State is framed on negligence on account of the conduct of the Parole Board (para 32), the actions or omissions of probation and parole officers employed by the Department of Correctional Services (paras 3, 33 and 44 – Cordingley; paras 3, 45 – Johnson), and officers of the Department of Family and Community Services (para 7 – Howes and Seith).”
The Relevant Legal Principles
I was referred to a number of authorities. I will not refer to them all. The State relied heavily on the recent decisions of the High Court in Sullivan v Moody (2001) 207 CLR 562 and Graham Barclay Oysters Pty Ltd v Ryan (2002) 77 ALJR 183. The plaintiff relied heavily on the recent decision of this Court in Swan v State of South Australia (1994) 62 SASR 532.
I start with the decision in Swan because the facts in that case are closer to the facts of this case than any of the other authorities to which I was referred. The plaintiff in that case sued the State of South Australia alleging negligence on the part of the Board and parole officers employed by the Department of Correctional Services. S was a sexual offender who had been released on parole. A condition of his parole was that he not associate with children under the age of 14 years except in the presence of another adult.
In breach of this condition, children under the age of 14 years including the plaintiff stayed with S between March 1987 and 19 April 1988 when no other adult was present. S sexually assaulted the plaintiff. In September 1987 the Board and parole officers became aware of allegations that children were in S’s house without another adult being present. However, other than accepting S’s statement that another adult was present at all times, the Board and the probation officer took no action. The plaintiff alleged that the Board was negligent in failing to supervise S both as to his parole conditions and his compliance with those conditions, and that the parole officers were negligent in failing to supervise S and to properly check up on the allegations as to his breach of parole conditions.
Bollen J (with whom Mohr J agreed) said that in order to establish a duty of care, foreseeability of harm was a necessary but not sufficient element. Something more must be shown, and that something more was proximity. Bollen J said (at 542) that there was no proximity such as to give rise to a general duty of care to supervise the conduct of released criminals. Bollen J thought the position was different when information comes to a defendant. He said (at 542):
“If it be information revealing that there is a breach of a condition of parole, which breach could cause harm to foreseeable persons, then I think that proximity arises.”
It seems to me that Bollen J held that there was proximity because the class to whom the duty of care was owed had, by the provision of information, become capable of fairly precise identification and therefore the duty of care was owed to a limited number of persons. It seems to me that the reasons why this is important are first, it means that the content of the duty can be defined with greater precision, and secondly, the burden placed on public authorities will be significantly less than the burden imposed if the duty is held to be a general duty of care owed to everyone to supervise the activities of a third party.
Bollen J made it clear that he was concerned with the existence of the duty, not its discharge. He expressed his conclusion thus (at 549 – 550):
“I think the defendant did come under a duty of care to take reasonable steps to safeguard the plaintiff once it (the defendant) through its officers knew or even had reason to suspect that failure to comply with the conditions of parole, requiring Sincock not to associate with children under 14 unless in the company of others, had been broken.”
Duggan J reached a similar conclusion. He said (at 551 – 552):
“When regard is had to the allegations made in the statement of claim there is at least room to argue that a sufficiently proximate relationship between appellant and respondent was brought about by reason of certain events which, it is pleaded, came to the attention of the parole officers employed by the Department of Correctional Services who were required to supervise the prisoner who had been released. If the assertions made in the statement of claim are taken at their highest, then the parolee, during the period from March 1987 to April 1988, associated with children under the age of 14 years contrary to the conditions of his parole. The children stayed with the man overnight unsupervised. The respondent through its servants or agents was aware that these associations were occurring (the statement of claim includes the alternative assertion that the respondent knew they were likely to occur) and inadequate action was taken to prevent such conduct. If those or similar circumstances can be established then I do not think that the appellant’s case is so obviously untenable that it should be dismissed at this stage.”
It is clear that the Court in Swan proceeded on the basis that the element in addition to reasonable foreseeability which must be established to found a duty of care was proximity. However, proximity is no longer the guiding principle (see CLT v Connon (2000) 77 SASR 449; Sullivan v Moody at 578-579). This must be borne in mind in considering the extent to which the reasoning in Swan should be applied.
Proximity is no longer a criterion for determining whether, in a novel case, a duty of care arises. It is clear that reasonable foreseeability is not by itself sufficient. It seems to me that the question whether the additional element sufficient to found a duty of care is present is to be decided by considering the reasoning and result in analogous cases and by reference to some general factors identified in recent decisions of the High Court.
In Sullivan v Moody, the High Court said (at 580):
“In Dorset Yacht Co Ltd v Home Office Lord Diplock said:
‘... the judicial development of the law of negligence rightly proceeds by seeking first to identify the relevant characteristics that are common to the kinds of conduct and relationship between the parties which are involved in the case for decision and the kinds of conduct and relationships which have been held in previous decisions of the Court to give rise to a duty of care.’
Conversely, conduct and relationships may have been held not to give rise to a duty of care, and the reasons for that holding may provide an important guide to the solution of the problem in a new case.
Developments in the law of negligence over the last 30 or more years reveal the difficulty of identifying principles that would allow ready solution of novel problems. Nonetheless, that does not mean that novel cases are to be decided by reference only to some intuitive sense of what is ‘fair’ or ‘unfair’. There are cases, and this is one, where to find a duty of care would so cut across other legal principles as to impair their proper application and thus lead to the conclusion that there is no duty of care of the kind asserted.”
It is useful to note the particular matters identified by the High Court in Sullivan v Moody. First, the Court said that there may be no duty of care if to find a duty of care ‘would so cut across other legal principles as to impair their proper application’. Secondly, the Court said that it is necessary to consider whether a duty of the kind alleged would be compatible or incompatible with other duties the defendant owes. Thirdly, the Court said that it is necessary to consider the extent and potential indeterminacy of liability should it be held that the particular duty of care arises. In this regard it is necessary to consider whether there is a rational and convincing basis for limiting the extent of potential duty and liability.
I turn now to consider the other recent decision of the High Court, Graham Barclay Oysters Pty Ltd v Ryan. Oysters were grown at Wallis Lake which is located within the Shire of Great Lakes in New South Wales. The growers of the oysters included Graham Barclay Oysters. The oysters were contaminated with the hepatitis A virus. The source of the contamination was the pollution of the lake by infected human faeces which came primarily from land-based locations surrounding the lake. A group of consumers who contracted the virus after eating the oysters brought a representative action in the Federal Court. They sued the growers, the council and the State of New South Wales. It is unnecessary to discuss the liability of the growers.
A majority of the Full Federal Court held that the council did not owe a duty of care to the oyster consumers. The High Court dismissed the appeal against that decision.
The basis of the claim against the council was that it had powers of control over the potential sources of pollution of Wallis Lake. This coupled with foreseeability of harm was said to give rise to a duty owed by the council to all those who might suffer physical harm in consequence of contamination of the lake. Gleeson CJ said that the powers were conferred on the council for the benefit of the public generally; not for the protection of the specified persons. It was not possible to point to any specific act or omission that would have prevented harm to the plaintiff.
McHugh J said that the case was not like Pyrenees Shire Council v Day (1998) 192 CLR 330 where the council knew of a risk of harm to certain individuals from a specific problem. His Honour said (at 204):
“To create a duty, the relationship between the public authority and persons affected by the conduct of the authority must be ‘so closely and directly affected by its act (or omission) that it ought reasonably to have them in contemplation as being so affected’ when it directs its mind to the relevant conduct in question.”
Gummow and Hayne JJ (with whom Gaudron J agreed on this point) said that foreseeability of the risk of harm and a power to avert the risk of harm does not without more give rise to a duty of care at common law. It is necessary to look carefully at the totality of the relationship between the parties. Their Honours said (at 211-212):
“The existence or otherwise of a common law duty of care allegedly owed by a statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime. The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence.”
A little later their Honours said (at 212):
“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. It ordinarily will be necessary to consider the degree of nature and control exercised by the Authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority and its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. In particular categories of cases, some features will be of increased importance.”
The factor of control is of fundamental importance. A form of control over the relevant risk of harm which is remote, in a legal and practical sense, is insufficient to found a duty of care. Their Honours noted that the council did not exercise control over the oysters themselves. The council exercised a much less significant degree of control over the risk of harm that eventuated. The relationship between the council and the oyster consumers was indirect; it was mediated by intervening conduct on the part of others.
Kirby J agreed that the council had an insufficient degree of control to found a duty of care. His Honour said (at 232):
“Pyrenees is readily distinguishable. There, the powers were specific to the prevention of the spread of fire. They were enlivened by express notice to the local authority, with applicable powers to act, of the risk that eventuated.”
Callinan J held that there was no duty of care for similar reasons noting that the council did not have a particular statutory power which had as its particular purpose the possible management of the industry or the prevention of contamination of oysters.
As far as the claim against the State was concerned, it was alleged that the State owed a duty of care to prepare and implement a proper oyster management plan and a duty of care, given certain deficiencies in the state of management of the fishery at the particular time, to exercise a power it had to close the fishery. A majority of the Full Federal Court held that the State owed a duty of care to the oyster consumers. The High Court held that the State did not owe a duty of care to the oyster consumers.
Gleeson CJ said that the extent to which the State should be involved in the regulation of the oyster industry was a matter of policy which received attention at the highest level. It had substantial budgetary implications, and it involved government concern to encourage an important industry. As far as the alleged duty of care to close the fishery was concerned, the power to order closure was a power to protect the public not a specific class of persons.
McHugh J said that foreseeability of harm was not sufficient to create a duty of care. The government owed no duty of care to oyster consumers. The case was distinguishable from Brodie v Singleton Shire Council (2001) 206 CLR 512. In Brodie, the relevant legislation empowered the council to design and construct roads and to carry out works or repairs upon them. The councils frequently exercised those powers. The councils had complete control over the state of the roads and they had the power to attend to any defects that would expose road users to injury. McHugh J said (at 203):
“It was this combination of power, direct control and the undertaking of functions in accordance with their powers that gave rise to a duty of care.”
McHugh J said that Pyrenees was not a control case. He said (at 203):
“Rather it is a case where the council came under a duty of care because it knew of the risk of harm to specific individuals, it had power to take steps to eliminate the risk and importantly, at an early stage, had given directions to eliminate the risk.”
Gummow and Hayne JJ (with whom Gaudron J agreed on this point) said that the State owed no duty of care to implement any particular management plan in relation to the oyster industry. The policy adopted was simply a continued adherence to a previously settled policy of general application. The alleged duty of care to close the fishery had not been established. It had not been shown that the preconditions for the exercise of the power had arisen. Insofar as it was said the State should have exercised a non-coercive influence or persuasion, Gummow and Hayne JJ said (at 219):
“As counsel for the State asked rhetorically during argument, is such a duty to be described as a duty to be persuasive, especially persuasive or successfully persuasive?”
Kirby J agreed generally with the reasons of Gummow and Hayne JJ. Callinan J agreed that the State did not owe a duty of care. He said (at 252):
“In practical terms it would be impossible for any authority to police all potential sources of dangerous food just as it would be for such an agency to identify and eradicate all potential sources of danger of any kind. What distinguished the source of danger in Pyrenees is not present here; its precise identification by the council and inadequate attempts to remove it. The massive obligation of the State to which a contrary view would give rise is a relevant and important circumstance to which I should have regard, and which, although not decisive, weighs in the balance.”
In terms of the issues relevant in this case, I think the present position may be summarised as follows:
The first limb of the decision in Swan (ie., that there was no general duty of care to supervise a released criminal) is still good law, and is supported rather than thrown into doubt by the latest High Court authorities to which I have referred.
The second limb of the decision in Swan (ie., there may be a duty of care in a case where specific information suggesting the possibility of harm to foreseeable persons comes to the attention of the relevant authority with powers to act) is good law. In general terms, the reasoning in Pyrenees Shire Council v Day supports such a conclusion and there is nothing in Sullivan v Moody and Graham Barclay Oysters Pty Ltd v Ryan which suggests that a duty of care may not arise in such circumstances.
I turn now to consider whether each of the bodies or persons identified in the Statement of Claim owed a duty of care to the plaintiff.
The Board (O’Shea)
As far as the Statement of Claim is concerned the Board is said to have owed a duty of care to the plaintiff because it was responsible for the general supervision of O’Shea and because it received specific information about O’Shea’s activities. In submissions, counsel for the plaintiff placed most emphasis on the second reason.
The relevant powers of the Board in relation to O’Shea were contained in s 24 of the CLSA. At the relevant time that section read as follows:
“24. (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 application 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.”
There was some inconclusive debate before me as to what constituted the “Crown” for the purposes of s 24(5). Even if the word is taken to mean only the Crown Law Department, I think there were powers available to the Board to terminate contact between O’Shea and the children at the R Centre. It could have invited the Crown to make an application to it. It could have applied to a justice for a warrant for the apprehension and detention of O’Shea. It could have cancelled the release of O’Shea on licence.
I do not think the Board owed to the plaintiff a general duty of care to supervise O’Shea. I think that this aspect of the reasoning in Swan should be followed. The fact that in Swan the third party was a prisoner released on parole and that in this case the third party is a person released on licence under s 24 of the CLSA is not a relevant point of distinction. To my mind, this aspect of the reasoning in Swan is confirmed in the later authorities of the High Court. In the same way as there was no general duty to supervise released criminals owed by the Board and the parole officers in Swan, in the present case there was no general duty to supervise O’Shea owed by the Board. Such a duty would be owed to an unlimited class of persons, the scope of the duty would be very difficult to define and such a duty would impose a very significant burden in terms of time and resources on the Board. Paragraph 25 which alleges a duty of care to generally supervise O’Shea should be struck out.
However, I think it is arguable that upon receiving the information identified by the plaintiff in the Statement of Claim, particularly the information received in July 1990 that O’Shea was giving computer lessons to a group of children at the R Centre, the Board did owe a duty of care to the plaintiff to take appropriate action. It seems to me that such an approach is consistent with the decision in Swan. I do not think this aspect of the decision in Swan has been affected by the later decisions of the High Court. In fact that the High Court’s reference in Graham Barclay Oysters Pty Ltd v Ryan to the basis of the decision in Pyrenees Shire Council v Day provides support for this aspect of the decision in Swan. Furthermore, although the High Court in Sullivan v Moody did not provide an exhaustive list of the relevant considerations in all cases, the matters identified by the Court in that case do not lead to the conclusion that there can be no duty of care in this case. In other words, to hold that there was a duty of care in this case would not cut across other principles of law, or obviously give rise to conflicting duties or to indeterminacy of liability. In my opinion, it is arguable that the Board owed a duty of care to the plaintiff and was in breach of that duty and that is all the plaintiff must establish at this stage.
As far as the Board is concerned, I would strike out paragraph 25, but I would allow paragraphs 26, 27, 28, 29, 30, 31, 32 (subject to one observation and one qualification), 34 and 35 to stand. In relation to paragraph 32, the one observation is that I have considered whether paragraph 32.5 should be struck out on the ground that it seems to relate to a general duty of care to supervise O’Shea which I have held did not exist. However, in the end I have decided that it can remain to be read in the context of the allegations of specific knowledge. The one qualification in relation to paragraph 32 is that I cannot see how the fact that the Board was in breach of the duty of care owed to the plaintiff can mean that C, who was an employee of the Department of Correctional Services, was negligent and that particular allegation should be struck out.
Paragraph 36 of the Statement of Claim provides as follows:
“36. As a result of the defendant’s failure to ensure that O’Shea was returned to custody the plaintiff was introduced in about April 1991 to another paedophile Colin Humphrys (‘Humphrys’) who had been released from custody on about 25 March 1991. The defendant and Cordingley and Johnson knew that Humphrys had committed sexual offences against children over a period commencing in about 1973 including the offence of child stealing.”
I would strike out this paragraph, although it may be possible for the plaintiff to re-plead the substance of the allegation. At the moment there are at least two difficulties with the allegation. First, there is no allegation that O’Shea introduced Humphrys to the plaintiff. Secondly, and more fundamentally, I cannot see how, in the absence of an allegation of specific knowledge, a duty of care to keep the plaintiff safe from harm by O’Shea can include a duty to keep the plaintiff safe from harm by Humphrys.
C (O’Shea)
As with the Board, C is said to have owed a duty of care to the plaintiff because it was responsible for the general supervision of O’Shea and because he received specific information about O’Shea’s activities. In submissions, counsel for the plaintiff placed most emphasis on the second reason.
For the same reasons I have given in relation to the Board, I do not think that it is reasonably arguable that C owed a general duty of care to the plaintiff to supervise O’Shea. Paragraph 25, which alleges a general duty of care to supervise O’Shea, should be struck out. Paragraph 33.1 should also be struck out as it is a particular of breach of a general duty of care to supervise O’Shea.
I have considered whether, like the Board, C came under a duty of care to the plaintiff because of specific information he received. There are two difficulties with this submission on the Statement of Claim as it presently stands.
First, C would not owe a duty of care to act in a particular way if he did not have the power to act in that way. C was an employee of the Department of Correctional Services. The Statement of Claim does not clearly identify the sources of his power to prevent O’Shea from harming the plaintiff, nor was this made clear in the oral or written submissions. For the most part, paragraph 33 (set out above) contains general allegations of failures by C to do certain things but there is no clear allegation of what C could have done within his powers and responsibilities which would (arguably) have prevented the harm to the plaintiff. No statutory provision was identified which gave C the power to have O’Shea returned to custody, and there is no allegation that he should have given a certain type of report to the Board which would (arguably) have prevented the harm to the plaintiff. I note that he appears to have had quite extensive powers under the licence to issue instructions, requirements and directions to O’Shea, but the Statement of Claim does not clearly identify the particular power it is said C should have exercised. The position of C can be contrasted with the Board whose source of power to act was contained in s 24 of the CLSA.
Secondly, it is not clear on the Statement of Claim that at the relevant times C had the same level of knowledge as the Board. The tenor of the Statement of Claim and the plaintiff’s submissions to me seem to assume that he did, but that is not borne out by the specific allegations in the Statement of Claim.
It may be that the plaintiff can re-plead to overcome these two difficulties, but on the Statement of Claim as it presently stands I do not think it is reasonably arguable that C owed a duty of care to the plaintiff and was in breach of that duty. I would strike out paragraph 33 and the other allegations of negligence involving C (see, for example, the reference to C in paragraphs 34 and 35).
Before leaving the liability of C, there is one further matter I should mention. At the first hearing of the State’s application there were a number of other complaints about whether the Statement of Claim complied with the rules of proper pleading. These complaints are no longer relevant in view of the changes the plaintiff has made to the Statement of Claim and the orders which I propose to make. However, if the plaintiff seeks to re-plead in relation to C he should note that had I upheld his pleading against C I would nevertheless have upheld the State’s complaint that paragraphs 33.8 and 33.9 should be struck out for want of proper particularity.
FAYS, S and H (O’Shea)
I think there is a short answer to the assertion that either FAYS or its employees, S or P, owed a duty of care to the plaintiff and were in breach of that duty. The plaintiff has not been able to identify any section of the Community Welfare Act 1972 (renamed in 1993 the Family and Community Services Act) which would support his assertion that FAYS, S or P owed a duty of care to the plaintiff and that any such duty included a duty to investigate O’Shea’s involvement at the R Centre. In those circumstances, even assuming the knowledge referred to in paragraph 8 above, I do not think FAYS, S or H owed a duty of care to the plaintiff.
I would strike out paragraphs 47 to 51 inclusive of the Statement of Claim.
C and J (Humphrys)
Unlike O’Shea, Humphrys was a prisoner released on parole. His parole officer had statutory authority to give him wide ranging directions (Correctional Services Regulations 1985 reg 62).
For similar reasons to those which I have already given in relation to the Board and O’Shea, I do not think that either C or J owed a duty of care to the plaintiff to generally supervise Humphrys once he had been released on parole.
I must consider whether C and/or J owed the plaintiff a duty of care because of specific information they or one of them received. In order to understand the matters put by the plaintiff in his case in this regard, it is necessary to set out the relevant paragraphs in full. They are as follows:
“37.Humphrys sexually abused the Plaintiff on numerous occasions during the months of April to July 1991.
37A.On 5 July 1991 Cordingley informed the Parole Board that Humphrys had not reported to him as part of the conditions of his parole. As a result of the information which the defendant thereby had that Humphrys was in breach of the conditions of his parole the defendant should have taken steps to ensure that there was a warrant for Humphrys’ arrest.
38.On or about the 7th day of July 1991 Humphrys abducted the plaintiff and took him to [another State] where he committed numerous sexual acts upon the Plaintiff.
39.During 1992 Humphrys pleaded guilty in the [deleted] District Court to the following offences on the plaintiff; committing an act of indecency, having sex with a person under 16 years, and attempt homosexual intercourse.
40.The plaintiff claims against Humphrys for injury both physical and mental and for loss and damage as a consequence of the sexual assaults committed by Humphrys upon the plaintiff and as set out in paragraphs 37 and 39 hereof and as a consequence of his abduction by Humphrys as set out in paragraph 38.
41.At all material times Humphrys was supervised by Cordingley and Johnson during the course of his parole.
42.Cordingley and Johnson were aware or ought to have been aware of Humphrys criminal record which contained various convictions for sexual offences some of which involved offences against children and in particular that he had a prior conviction for child stealing in 1985 and a conviction for two counts of gross indecency with a male under 16 years of age, three convictions for loiter for a homosexual purpose, a further conviction for three counts of gross indecency and a conviction for unlawfully cause person to take drug with intent to commit an indictable offence.
43.Cordingley and Johnson knew or ought to have known that Humphrys was likely to associate with child sex offenders and in particular Cordingley knew or ought to have known that he had made the acquaintance of O’Shea and that this could bring him in contact with the R centre and with the children who attended the R centre.”
The two allegations of specific knowledge which might support a duty of care are those contained in paragraphs 37A and 43. The State disputed the factual assertion in paragraph 37A, but that is not a relevant consideration on an application to strike out a Statement of Claim (or a part thereof) as failing to disclose a reasonable cause of action. I must accept the factual assertion as correct.
I do not think that as presently particularised, paragraph 37A provides a sufficient basis to found a duty of care. There was no general duty to supervise. As I have said, a duty to an identifiable class may arise in certain circumstances. The duty said to arise by reason of the fact in paragraph 37A would not be a duty to an identifiable class; it would be a duty to the whole world. I do not think a duty of care arises because of the fact alleged in paragraph 37A .
Nor do I think that as presently particularised the allegation in paragraph 43 provides a sufficient basis to found a duty of care. No particulars of knowledge or imputed knowledge are given. It stands as a very general allegation and I am unable to see how it can give rise to the alleged duty of care.
I would strike out paragraphs 37 to 43 (inclusive) and the allegations of breach in paragraphs 44 and 45 and the relevant allegations of loss and damage.
Conclusion
I would make the following orders:
1. Paragraphs 25, 33, 36, 37, 37A, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50 and 51 are struck out.
2. That part of paragraph 32 which reads “and/or Cordingley” is struck out.
I will hear the parties as to whether any other paragraphs need to be amended or should be struck out as a result of these orders and as to whether the plaintiff should be given leave to re-plead some or all of the allegations struck out. I will also hear the parties as to costs and any other consequential orders.
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