X v The State of South Australia (No 2) - [2005] SASC 150

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
X v THE STATE OF SOUTH AUSTRALIA (NO 2)
Judgment of The Honourable Justice Anderson
26 April 2005
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - GOVERNMENT AND PUBLIC AUTHORITIES
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DAMAGE - CAUSATION
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - LOSS OF EARNINGS AND EARNING CAPACITY
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - IMMUNITY FROM PROCEEDINGS
Plaintiff alleges Parole Board negligent for allowing notorious paedophile O'Shea to continue to remain in the community after receiving information about his possible involvement with children at a community centre - O'Shea abused plaintiff while on licence during 1990 and 1991 at the community centre and elsewhere - plaintiff was aged approximately nine and a half to eleven years at the time, and enrolled in vacation care at the community centre - O'Shea was conducting computer classes at the centre - whether Parole Board a judicial or quasi judicial body and whether entitled to immunity from suit - whether Parole Board owed a duty of care to children at the community centre - if Parole Board negligent, whether negligence caused the plaintiff's damage. Held: Parole Board not entitled to immunity - Parole Board did not owe a duty of care to the plaintiff - claim dismissed but damages assessed.
Correctional Services Act 1982 s55, s60A, s63; Criminal Law (Sentencing) Act 1988 s23, s24; Limitation of Actions Act 1936 s 48, referred to.
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Sullivan v Moody (2001) 207 CLR 562; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Wheeler v Page (1982) 31 SASR 1, applied.
R (Giles) v Parole Board [2004] 1 AC 1; Scotto v Almenas (1998) 143 F 3d 105; Montero v Travis (1999) 171 F 3d 757; Swan v State of South Australia (1994) 62 SASR 532; X v State of South Australia (2003) 86 SASR 516, distinguished.
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; Trapp v Mackie [1979] 1 WLR 377; R v Local Government Board of Ireland [1902] 2 IR 349; State of New South Wales v Godfrey [2004] Aust Torts Reports 81-741; Amaca Pty Ltd v The State of New South Wales [2004] Aust Torts Reports 81-749; CLT v Connon (2000) 77 SASR 449; Hillman v Black (1996) 67 SASR 490; Pyrenees Shire Council v Day (1998) 192 CLR 330; Modbury Triangle Shopping Centre Pty Ltd (2000) 205 CLR 254; H v Black [1995] Aust Torts Reports 81-340, discussed.
R v Nelson; Ex parte O'Shea (1986) 44 SASR 507; South Australia v O'Shea (1987) 163 CLR 378; Heath v Commissioner of Police for the Metropolis [2004] EWCA Civ 943; Rajski v Powell (1987) 11 NSWLR 522; D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; Fardon v Attorney-General for the State of Queensland (2004) 78 ALJR 1519; R v Davison (1954) 90 CLR 353; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361; Jaensch v Coffey (1984) 155 CLR 549; Sutherland Shire Council v Heyman (1985) 157 CLR 424; R v Shrestha (1991) 173 CLR 48; Power v The Queen (1974) 131 CLR 623; L v State of South Australia [2004] SADC 110, considered.

X v THE STATE OF SOUTH AUSTRALIA (NO 2)
[2005] SASC 150
ANDERSON J
SUMMARY OF REASONS

In this matter the plaintiff has sued the State of South Australia on the basis that the Parole Board (“the Board”) was negligent in allowing a notorious paedophile, one Lawrence John Edward O’Shea, to remain within the community notwithstanding that the Board had received information concerning the possibility of his being involved with children contrary to the conditions of the licence upon which he was released from prison.
In a previous decision on the same issues Besanko J in X v State of South Australia (2003) 86 SASR 516 dealt with an application to strike out the plaintiff's claim. Prior to that decision the plaintiff had discontinued claims against O'Shea, Colin Charles Humphrys and Ms S. His Honour struck out various allegations made against two parole officers and a social worker at the Department of Family and Youth Services and left outstanding only the claim against the present defendant in relation to the alleged negligence of the Board. I have distinguished that decision because it deals with whether the allegations made against the Board were arguable, and therefore was limited to a consideration of that issue.
In these proceedings it is alleged that the Board owed the plaintiff and other young children a duty to protect those young children from O’Shea because of O’Shea’s background and his inability to control his sexual instincts. It is alleged that the Board was appraised at all times with full knowledge of O’Shea’s background, and therefore was in a very good position to judge that it was highly likely that he would re-offend.
The relevant times for the purpose of this action range between approximately late 1989 or early 1990 and extend beyond mid-1991. The plaintiff alleges that the Board is subject to a general duty of care and is liable in negligence for specific breaches of duty alleged to have arisen on separate occasions.
The defendant, in a late amendment at trial, has submitted that it cannot be held liable. It has taken several points. First, it alleges that the Board is a judicial body, or a quasi judicial body, and it is therefore immune. I have found that the Board is not such a body and that it is not immune from suit.
Secondly, the defendant has suggested that the Board is not and cannot be subject to a duty of care either generally or in specific instances. I have found in favour of the Board in this regard and found that it is not compatible with the role and functions of the Board to have it subject to a duty of care either generally or in the specific incidents relied on.
The third point relates to the question of the potential negligence of the Board. On the facts of this case I have concluded that in the event that I am wrong in my decision about duty of care, then in my view, the Board, if it were subject to a duty of care, was most likely negligent by its actions and inaction on or around late July to mid-August 1990.
Finally the defendant argues that if there is any finding of negligence, then it becomes necessary to deal with issues of causation. Some considerable portion of the irreparable harm suffered by the plaintiff was inflicted prior to the time when I have found the Board could have been liable on the facts of this case, namely, late July to mid-August 1990.
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.
BACKGROUND FACTS
The plaintiff was born on 26 July 1980, and has lived most of his life with his mother in their suburban home where they moved when he was about six years of age. He went to primary school in Adelaide, and also went to an Adelaide high school. His father has not had any involvement in his life.
There was a neighbourhood centre, the R centre, located directly across the road from the house in which he and his mother lived. The neighbourhood centre catered for all sorts of activities for age groups ranging from young children to elderly citizens. Activities offered by the centre included various courses conducted for further education including arts, crafts and music. The person in charge of the centre, the witness Ms S had a son approximately the same age as the plaintiff, and they were good friends.
Lawrence John Edward O’Shea, in the mid-1980s, was a notorious paedophile, and I have set out details of his offending in another part of these reasons. As part of his plan to entice young children for his sexual gratification, O’Shea conducted computer classes at the neighbourhood centre which commenced with some adult education in computers but progressed into lessons for children. It was in that context that the plaintiff first met O’Shea. At this time the plaintiff was about nine and a half years of age. Initially he played computer games on computers which were provided by O’Shea, and this took place in the premises of the R centre. I find that the plaintiff first met O’Shea in the school holidays at the end of 1989 or the beginning of 1990. It is not possible to be more precise, but certainly by mid-January 1990, the plaintiff had met O’Shea at the R centre.
After a short time, a relationship between O’Shea and the plaintiff began to develop. O’Shea asked the plaintiff what he was thinking in relation to different girls at the centre, and then that progressed to the stage where O’Shea invited the plaintiff to look at some magazines. The plaintiff, in his evidence, said that his memories were that they were “homosexual magazines”.
These magazines apparently were included within boxes of magazines or pamphlets which related to the computers, and were camouflaged within those boxes of general computer literature.
The plaintiff told me that he did find the pictures in the magazines a bit exciting, and following this introduction by O’Shea, involving the further use of pornographic magazines, the relationship between O’Shea and the plaintiff developed further.
O’Shea specifically told the plaintiff, at the tender age of nine years, that he knew that any sexual activity between an adult and a child was wrong, but that he loved the plaintiff and wanted to have a real relationship with him, and that moreover he believed that the plaintiff was sufficiently grown up so that it would be all right.
The relationship progressed to touching and kissing, and then proceeded to oral sex. All of this culminated on Saturday 14 April 1990 when, by prior arrangement with O’Shea, the plaintiff convinced his mother that O’Shea was taking him to a football match, which he did. O’Shea and the plaintiff left the football match at half-time and went to O’Shea’s flat where they took part in oral sex, and where, for the first time, the plaintiff remembers being sodomized. Prior to that time, all sexual contact had been exclusively at the R centre.
The plaintiff knew, when he went to the football match, that something was going to happen over and above what had happened to him already. The plaintiff was a willing participant in as much as any nine-year old child could be. He was told by O’Shea that he was to become a man on this occasion.
After the events following the football match, the plaintiff commenced to sneak out his window to go to the centre at night. O’Shea had managed by trickery to stay overnight at the R centre because he had somehow or other obtained possession of a key, and by arrangement the plaintiff climbed out of his window at night and spent time with O’Shea at the centre. He told me that he felt superior to other children of his own age because he had a secret, and because he did grownup things. During this period, it is apparent that the plaintiff’s schoolwork suffered. He started to become aggressive with other children at school. Prior to that time he had been the subject of victimisation at school because of his small size.
The sexual relationship with O’Shea continued. Later O’Shea introduced him to a friend of his, one Mr Colin Humphrys, another known paedophile. This was probably in or about April 1991. The relationship between the plaintiff and Humphrys commenced from about that time with all sorts of sexual activity, to the point where finally Humphrys kidnapped the plaintiff and took him to Melbourne and Sydney where he sexually abused him over the course of a couple of days. By that time the plaintiff was seeing Humphrys more than he was seeing O’Shea. The date of the kidnapping was in early July 1991. The plaintiff turned eleven shortly after that on 26 July.
At some stage the plaintiff told his young friend about O’Shea. The friend told his mother Ms S, and one thing led to another when Humphrys apparently got wind of what was going on in the background with the police starting to investigate. That is when the kidnapping took place.
After the kidnapping episode with Humphrys, the plaintiff was initially kept, at the suggestion of the police, in a motel with his mother and then in a safe house, and then later still in the Children’s Hospital. He was in hospital for a few months. His treatment there was supervised by Professor Kosky. Reports from him were tendered by consent.
The plaintiff told me that, whilst he was in hospital he felt like he was worthless, and when he returned to school he was teased and had a very unsympathetic teacher. Everyone knew about his ordeal because it had been widely publicised in the media, and photographs of the plaintiff had been published when he went missing. As a result, the plaintiff left his primary school and went to another school, and eventually completed Year 7 at that second primary school. He then went to high school and completed Year 11. He failed Year 12 at the high school and then decided to repeat Year 12, this time at an adult education college, but he also failed the second time. His first attempt at Year 12 was in 1998, and his second attempt was the following year.
Since that time, the plaintiff has earned money in odd jobs like cleaning. He has also had jobs in childcare, in a supermarket and also in a health food shop.
At the time he gave evidence, he was employed as a carer looking after disabled people. At some stage in the year 2003, he enrolled in a bachelor of nursing at Flinders University. That study has not been entirely successful, and he is at the moment subject to review as to whether he can continue his course because of his lack of progress. Normally it would be a three-year course.
The plaintiff’s mother gave evidence confirming much of the detail which I have set out. His mother was certain that the contact with O’Shea began late in 1989 or early in 1990 when a school holiday program was organised at the centre. I have already made a finding based on this evidence. She told me that about ten days after the football match in April 1990, she found a tube of cream which the plaintiff told her O’Shea had given him because he had “boy’s trouble”.
The plaintiff’s mother then found an activity which was held at the same time as the computer club so that the plaintiff could no longer attend. She enrolled him in a rugby team and he played rugby during the rest of 1990 and during 1991. She recalls one evening when O’Shea turned up at their house. This was apparently because the plaintiff had not gone to a new computer club which O’Shea had set up, and for which he had circulated pamphlets including one directed to the plaintiff’s house. Unbeknown to her the plaintiff continued to see O’Shea during 1990 and 1991 and their sexual relationship continued.
The plaintiff’s mother confirms the details in the media following the abduction to Sydney, and the events which followed when the plaintiff was found and returned to Adelaide. She told me that when she first saw her son, he was nervous because he believed that he would be blamed. She also noticed a difference in him in that he wanted attention and seemed to be involved with adult concepts compared with his normal outlook on life prior to that time. She says that he wasn’t sleeping, and was frightened both for his own physical safety and because he believed that he could no longer trust his own judgment. She had particular difficulty in getting him to look after his own hygiene including general showering and brushing his teeth. His relationship with his sister also changed. She was several years younger than the plaintiff. His mother gave evidence that following his return from Sydney, his attitude changed in that he didn’t like having young children, including his sister, around him.
The plaintiff’s mother confirmed the difficulties with the plaintiff’s return to school, and confirmed the difficulties that the plaintiff has had since his schooling finished, and his attempts at various jobs. The plaintiff, at some stage after high school, met a young woman who became his girlfriend. The plaintiff told me that this wasn’t an entirely successful relationship. He now has another girlfriend with whom he has been associated for four or five years. He lives with her most of the time, but when he’s not feeling well he goes home and lives with his mother. He sometimes becomes highly stressed and does not function on a normal basis. It is on those occasions that he returns home.
The plaintiff’s mother kept a diary which is Exhibit PJ and sets out her thoughts whenever she noticed different things about the plaintiff. This document is instructive of the difficulties encountered by the plaintiff and the way he has tried to cope with them. I will deal with the problems encountered by the plaintiff in more detail when I deal with damages.
The diary covers the period in the hospital and return to school, and covers all manner of difficulties which the plaintiff encountered. It covers his desire to drink adult drinks whilst at the same time he is still playing with Lego. He had numerous intrusive nightmares. He had to be tested for AIDS and venereal disease. He was violent in hospital. His birthday after the kidnapping was described by his mother as “the saddest birthday of his life”. He had to go to Sydney to give evidence in court regarding his abduction and abuse. Whilst he tried to resume his friendships he seemed concerned that he was no longer welcome by the other children.
I was told by the plaintiff’s mother that she believed he reached puberty a short time after he came back from the abduction, probably at about eleven years of age.
HISTORY AND FUNCTION OF THE PAROLE BOARD
The Board was introduced in South Australia by Act No 105 of 1969, which was an amendment to the Prisons Act 1936-1968. Prior to the introduction of the Board, s42 of the Prisons Act gave power to the Governor, on the recommendation of the Comptroller of Prisons and the superintendent of the relevant institution, to release prisoners under a system of probation. Section 42(6) provided for the making of regulations by the Governor, with respect to:
“(a) the terms and conditions upon which prisoners may be released under this section and upon which the privileges authorised by this section may be revoked by the Governor in any case; and
(b) the appointment and duties of probation officers for the purposes of this section.”
The Prisons Act underwent a number of amendments before its repeal in 1982 by the introduction of the Correctional Services Act 1982, but the Board provisions changed very little between their introduction in 1969 and the enactment of s55 of the Correctional Services Act.
HISTORY OF THE LICENCE SCHEME
The legislative scheme of licences for prisoners declared to be unable to control their sexual instincts was considered by the Full Court of the Supreme Court in R v Nelson; Ex parte O’Shea (1986) 44 SASR 507 and by the High Court in South Australia v O’Shea (1987) 163 CLR 378. The scheme at the time of those cases differed in an important way from the legislation at the time relevant to this matter.

Under the earlier legislation the power to grant release on licence was given to the Governor, after a recommendation by the Board. At the time of O’Shea’s release in 1988 that power had been given to the Supreme Court. The role of the Board in setting the conditions imposed on that release and, on the application of the Crown, in varying or revoking a condition of the release, or cancelling the release, has also undergone some amendment, but remains roughly the same.
LEGISLATION AT THE RELEVANT TIME
Section 55 of the Correctional Services Act at the relevant time provided that:
“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 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 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, penology, or any other related science;
(b) one will 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 will be a person who has, in the opinion of the Governor, extensive knowledge of, or experience in, criminology, sociology or any other related science…”
Section 63 gave the Board powers to summons witnesses or documents, and provided that:
“63. (1) For the purposes of proceedings before the Board under this Act or any other Act, the Board may—
(a) by summons signed on behalf of the Board by a member of the Board, require any person to attend before the Board;
(b)by summons signed on behalf of the Board by a member of the Board, require any person to produce any document relating to any matter before the Board;
(c)require any person to furnish the Board with a written report or written information in relation to any aspect of a matter before the Board;
(d)require any person appearing before the Board to answer on oath or affirmation any questions put by the Board that are relevant to any matter before the Board;
or
(e)require any written report or information to be verified by statutory declaration…"
Section 60A of the Correctional Services Act specifically addresses the issue of liability of members of the Board, but offers little assistance in determining the question of the Crown’s liability. Section 60A relevantly provides that:
“(2) No liability attaches to a member of the Board for an act or omission by him, or by the Board, in good faith and in the exercise or purported exercise of his or its powers or functions, or in the discharge or purported discharge of his or its duties, under this Act.
(3) A liability that would, but for subsection (2), attach to a member of the Board shall lie against the Crown.”
Section 23 of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”) allows the Supreme Court to make an order for indeterminate detention where a person has been found to be incapable of controlling his or her sexual instincts. O’Shea was declared by order of Jacobs J to be so incapable on 28 February 1978. This order was made pursuant to s77 of the Criminal Law Consolidation Act 1935 which was the relevant legislation in force at that time.
Section 24 of the Sentencing Act provides for the release of a person on licence who has been declared to be incapable of controlling his or her sexual instincts. Ms Nelson QC, the chairman of the Board, gave evidence about the Board’s understanding of the orders of the court and in particular an order by Mohr J on 29 June 1988 releasing O’Shea on licence. I will deal with this evidence later in these reasons. Section 24 at the relevant time provided that:
“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…
(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…
(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…
(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.”
PAROLE BOARD - A JUDICIAL BODY?
Mr Bell, for the defendant, submitted that the Board was a judicial body, and as such was entitled to absolute immunity. In the alternative he submitted that the Board was a quasi-judicial body, exercising judicial powers, and was therefore also entitled to immunity from tortious liability. In support of these submissions he relied in particular on the cases of Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, Trapp v Mackie [1979] 1 WLR 377, Heath v Commissioner of Police for the Metropolis [2004] EWCA Civ 943 and two decisions of the United States Court of Appeals, Second Circuit. This plea of immunity was not part of the pleadings until I allowed an amendment during the trial.
The principle of immunity of judges from tortious liability is well established in English law from as early as the 1500s. The immunity developed “not to protect judges as individuals but to protect the interests of society”, to use the words of Kirby P, as he then was, in Rajski v Powell (1987) 11 NSWLR 522, at 528. The principle has been extended to cover persons other than judges, where their role can be seen as analogous to that of a judge. For example, in South Australia, s44(1) of the Magistrates Court Act 1991 provides that:
“A Magistrate or other person exercising the jurisdiction of the Court has the same privileges and immunities from civil liability as a Judge of the Supreme Court.”
The immunity also applies to witnesses, and to advocates. In the recent High Court decision of D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 Gleeson CJ, Gummow, Hayne and Heydon JJ consider the foundation of the concept of judicial immunity, in the context of a reconsideration of the advocates’ immunity. They note, at [40], that:
“both judicial immunity and the immunity of witnesses were, and are, ultimately, although not solely, founded in considerations of the finality of judgments.”
In relation to the immunity of advocates, their Honours conclude at [44] – [45] that:
“The question is not, as may be supposed, whether some special status should be accorded to advocates above that presently occupied by members of other professions…Rather, the central justification for the advocate’s immunity is the principle that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances. This is a fundamental and pervading tenet of the judicial system, reflecting the role played by the judicial process in the government of society.” (footnotes omitted)
TEST OF WHETHER A BODY IS JUDICIAL
The question of whether the Board, in the circumstances of this case, was entitled to immunity depends on whether it exercises judicial power. The relevant powers of the Board in this case include:
(a) to set the conditions of the licence under s24(3) of the Sentencing Act;
(b) (on application of the Crown) to vary or revoke a condition or impose further conditions under s24(5)(a); or
(c) (on application of the Crown) to 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 under s24(5)(b).
One of the classic definitions of judicial power, frequently adopted in the Commonwealth cases but arising out of the uncontrolled United Kingdom constitutional arrangements, and therefore particularly relevant in the state context where there is no rigid separation of powers, is the statement by Palles CB in R v Local Government Board of Ireland [1902] 2 IR 349, at 373-4:
“I have always thought that to erect a tribunal into a ‘Court’ or ‘jurisdiction’, so as to make its determinations judicial, the essential element is that it should have power, by its determination within jurisdiction, to impose liability or affect rights. By this I mean that the liability is imposed, or the right affected by the determination only, and not by the fact determined, and so that the liability will exist, or the right will be affected, although the determination be wrong in law or in fact. It is otherwise a ministerial power. If the existence of such a power depends upon a contingency, although it may be necessary for the officer to determine whether the contingency has happened, in order to know whether he shall exercise the power, his determination does not bind. The happening of the contingency may be questioned in an action brought to try the legality of the act done under the alleged exercise of the power. But where the determination binds, although it is based on an erroneous view of facts or law, then the power authorizing it is judicial.”
The underlying concept appears to be the notion that a judicial decision is ‘binding’ and that it binds in a ‘conclusive’ manner. Once made (but subject to appeal) a judicial decision is not vulnerable to subsequent collateral attack in the courts. The normal way in which this principle manifests itself is in the form of issue estoppel.
It is necessary to decide whether the determinations of the Board have this conclusive nature. This involves an analysis of the way in which the legislation vests powers in the Board, and a consideration of both history and analogous situations.
It is my view that the better characterisation of the relevant powers of the Board is that they are administrative in nature. In R v Davison (1954) 90 CLR 353, at 369-70 Dixon CJ and McTiernan J adopted an historical approach to characterisation to resolve the question of whether functions were judicial in cases of doubt. An historical analysis of the relevant Board functions shows that these functions have their origins in the power to release prisoners on probation given to the Governor, to be exercised on the recommendation of the Comptroller and prison superintendent, as discussed above. This supports a characterisation of the powers as administrative.
In addition, the fact that s60A of the Correctional Services Act specifically provides that members of the Board will not be personally liable, and that liability will lie instead against the Crown tends to militate against a finding that the Board is intended to enjoy absolute immunity. It was open to the parliament to provide, as they have done for Magistrates, that the Board enjoys judicial immunity.
On the other hand, the fact that the power to revoke or vary conditions, or to cancel the release on licence, may only be exercised on the application of the Crown may be suggestive of a lis inter partes. However, many administrative proceedings are conducted in a manner similar to a lis inter partes, such as proceedings in the Administrative Appeals Tribunal, and these are not exercises of judicial power.
Mr Bell relied on a number of indicators to show that the Board was a judicial body. He drew these indicators from the decision of Brandy v HREOC. These indicators were, first, that there is a determination of existing rights and duties; secondly, the enforceability of determinations; thirdly, the finality of determinations or decisions that are binding and conclusive; and finally, the narrow scope of the discretion available to the decision maker.
In Brandy the High Court held that sections of the Racial Discrimination Act 1975 (Cth) purported to vest judicial power in the Human Rights and Equal Opportunities Commission contrary to Chapter III of the Constitution, and were consequently invalid. As such the case deals with the rigid separation of powers applicable at the Commonwealth level.
Mr Bell also relied on criteria for determining whether a body attracts absolute immunity as identified by Lord Diplock in Trapp v Mackie. In that case the House of Lords was considering whether a witness giving evidence before a Commissioner of inquiry could be sued for libel and slander. Lord Diplock posed four criteria, first, was the body recognised by law; secondly, was the question to be determined by the body of a kind that would be considered by a court; thirdly, was the procedure adopted by the body akin to the procedure adopted by a court; fourthly, was the outcome a binding determination of civil rights of the party or parties? Lord Diplock’s judgment has been cited with approval in Heath v Commissioner of Police for the Metropolis.
Mr Bell also relied upon the recent decision of the House of Lords in R (Giles) v Parole Board [2004] 1 AC 1, which was cited by Gummow J in Fardon v Attorney-General for the State of Queensland (2004) 78 ALJR 1519, at [65]. Giles case involved a consideration of Art 5(4) of the Convention for the Protection of Human Rights and Fundamental Freedoms, contained in a Schedule to the Human Rights Act 1998 (UK). In drawing a distinction between the deprivation of liberty for an indeterminate term by a court order and by administrative decision, their Lordships characterised the parole board in that case as a judicial body. The case characterises the parole board as a judicial body in the context of considering compliance with human rights standards, and does not address the question of judicial immunity, and is therefore distinguishable, in my opinion.
Counsel also relied upon the decisions of the United States Court of Appeals, Second Circuit, in Scotto v Almenas (1998) 143 F 3d 105 and Montero v Travis (1999) 171 F 3d 757. While these cases indicate that that Court considers that parole board officials are entitled to an immunity where they revoke parole, they are of limited assistance, in that they do not apply the criteria that are preferred in Australia, and they do not analyse the legislative framework of the parole board under consideration. Again, in my view, they are distinguishable.
Mr Tilmouth QC, for the plaintiff, answered these submissions by contending that there was no relevant right, duty or obligation to be determined by the Board in this case. In his submission O’Shea’s release on licence was pursuant to the order of the Supreme Court and not by any determination of the Board. He characterised O’Shea’s release as a privilege, and asserted that any decision of the Board to cancel that release therefore could not be characterised as affecting legal rights.
Mr Tilmouth also addressed the criteria of enforceability put forward by the defendant to support a characterisation of the Board as a judicial body. He submitted that the Board cannot, and does not, enforce its own determination to cancel. He asserted that the Board may direct a member of the Board to apply to a justice for a warrant, but that what operates to return the offender to custody is the original order of the Supreme Court under s23 of the Sentencing Act. In relation to the question of finality or conclusiveness, Mr Tilmouth submitted that as the relevant determination was the order of the Supreme Court, no question of finality arises, and the process of statutory review of indeterminate detention orders will apply.
I do not accept the contention of counsel for the plaintiff that the power of the Board to vary conditions or cancel a release on licence does not affect the prisoner’s legal rights. It seems clear to me that the prisoner’s fundamental liberty interests are affected by the Board’s determinations as a matter of substance and not mere legal form. However, it is my view that the relevant power of the Board does not represent a binding determination of legal rights, in that the liberty of the prisoner is ultimately in the hands of the Supreme Court, which is empowered to decide both questions of indeterminate detention, and of release on licence.
Another factor which supports the finding that a decision of the Board to cancel a release on licence does not ‘bind’ in the requisite sense is the fact that the power is contingent upon the Board being ‘satisfied’ either that the licence conditions have been breached, or are likely to be breached. A determination of what is ‘likely’ to occur in the future is not a determination that is usually associated with judicial decision-making, except perhaps in the award of damages for future loss. In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, at 376 Kitto J stated that:
“We are here concerned with a power which depends upon nothing but the Tribunal’s own satisfaction that certain conditions exist. The determination of the Tribunal that it is so satisfied — the making of its “findings” … — does not bind in the sense in which Palles CB used the expression; that is to say, it does not conclude for all purposes any question as to which the Tribunal declares itself satisfied.”
Admittedly the power in that case was appreciably different than that of the Board being considered here.
The fundamental public policy justification for the continuation of judicial immunity, advocates’ immunity and the immunity of witnesses, as discussed above in reference to the recent High Court decision of D’Orta-Ekenaike v Victoria Legal Aid, is the emphasis on the finality of judgments. The attribution of such an immunity to the Board would not further this purpose. I find that the relevant powers of the Board are properly characterised as administrative. I find that the Board does not attract judicial immunity. As to the submission that the parole board, although not a judicial body, is nonetheless entitled to judicial immunity as a quasi-judicial body, or as an administrative body exercising judicial powers, I find that the same considerations discussed above support a finding that the Board is likewise not entitled to such immunity.
THE BOARD’S KNOWLEDGE OF O’SHEA’S BACKGROUND
As part of the documents within Exhibit PU there is a report from the chairman of the Board to the Minister dated 16 April 1986. Ms Nelson QC was the chairman in 1986 and had been so since 1983.

I set out from that document the background information in the possession of the Board regarding O’Shea:
“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. (See Addendum 2 for reference to past family and personal history.)
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.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 discharged from Yatala Labour Prison on 20 February 1962, whereupon he sought psychiatric assistance due to feeling depressed and extremely hostile towards his father. (See Addendum 3).
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 told 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. (See Addendum 4).
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 activities 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. (See Addendum 5 and 6.)
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. (See addendum 7).
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 provision of Section 77a. (See Addendum 8). 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 15 December 1980 (See Addendum 9). 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. (See Addendum 10.)
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. (See Addendum 11.)
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. (See Addendum 12.)
2.18.Pursuant to Section 77a (7c) (see Addendum 1) of the Criminal Law Consolidation Act the Board is of the view that it may return a licencee 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. (See Addendum 13.)
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. (See Addendum 1.)”
The Board subsequently obtained the psychiatric reports and interviewed O’Shea on 18 March 1986. The reports were from Dr A Fugler dated 27 January 1986, and Dr K O’Brien dated 11 March 1986. After considering the reports the Board decided to recommend the release of O’Shea on licence.
The matter was eventually heard by Mohr J on 29 June 1988 when he authorised the release on licence of O’Shea subject to conditions.
CONDITIONS OF O’SHEA’S LICENCE
The conditions originally imposed on the order for release on licence are set out below:
“Now this Board orders that Laurence John Edward O’Shea be released on licence on 13^th July 1988, such release on licence to be the 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 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 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 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.”
Pursuant to s24(5) of the Sentencing Act the Crown Solicitor on 4 May 1989 made an application seeking a variation of the conditions set out above. This was following the interview which the Parole Board had with O’Shea following the “list of names” incident which I will refer to in some detail later in these reasons. As a result of the interview, the Crown Solicitor, on the suggestion of the Board, was applying to have conditions 12 and 13 as set out above, revoked, and in lieu thereof the following conditions imposed. The new conditions sought were as follows:
“SCHEDULE
12That 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.
13He 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.
13AThat 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.
13BThat 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.
13CThat 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.”
Ms Nelson said that she believed that these conditions had been approved by the Board and replaced the old conditions. However there is no documentary support for these amendments having taken place in any of the records of the Board.
During the course of final submissions, Mr Tilmouth pointed to several matters contrary to the interests of his client. Mr Tilmouth made the point, that if the substituted conditions had been put into force, then his argument regarding the alleged breach of conditions by O’Shea was stronger. I think that is probably correct, but in the long run it seems to me on the way in which the case has proceeded, and in view of the findings which I make later about the “list of names” incident together with the concession by Mr Tilmouth regarding the “Pope” letter, it probably does not make a lot of difference. That is because the events surrounding the Board’s decision on 14 August 1990, that is, the letters to the Board from Ms S and the memo from the parole officer, indicate a breach of conditions by O’Shea whether or not the conditions were amended.
There was an argument however based on the interpretation of clause 12 of the original conditions. The suggested ambiguity raised by counsel for the defendant is the qualification at the end of condition 12 which reads, “or is in any way involved with children whatsoever”. Does that relate to O’Shea or does it relate to the organisation? It seems to me that it clearly relates to the organisation because if it related to O’Shea then clause 13 would not have been necessary.
It was then argued by the defendant that there had therefore been no breach of the condition on the interpretation which I have favoured because O’Shea had not joined or become involved in any organisation which either directs children’s activities, raises money for or on behalf of children’s charities or was in any way involved with children whatsoever. It is my view that the R centre did direct children’s activities and was involved with children in the circumstances which I set out later. I consider that the events referred to in Ms S’s letter and the parole officer’s memo were clear breaches of condition 12 for the reasons I give later.
In the event that this matter goes further, it seems to me that on the balance of probability there should be a finding that the amendments were not made. I will briefly indicate why that is my view.
Exhibit P35 is a memo from the parole officer to the Board written on 21 June 1989 where reference is still being made to “proposed new condition No.13”. Perhaps more telling is another memo from the chairman to O’Shea’s parole officer dated 20 September 1990 in which the chairman says:
“The only prohibition arising out of Mr O’Shea’s conditions is a prohibition relating to him being in contact or attempting to contact any child under the age of 16 years except in the presence of another adult.”
It is suggested, and I agree, that that comment is more consistent with the original version of the conditions than the proposed amendments. It is difficult to envisage why that comment would have been made by the chairman if clause 13A had been in operation.
On 5 June 1991 the parole officer wrote to the Board and reiterated the comment I have set out above. The parole officer then expressed the following view:
“I am of the view that conditions number 12 and 13 are distinct, and that he cannot legalise a breach of number 12 by falling back upon number 13. However, the Board might not agree with my interpretation, in view of its earlier minute.”
It seems unlikely that such a comment would be made if clause 13B had been in operation because it was directly relevant.
Another document in evidence, a memo from the secretary of the Board to the Crown Solicitor dated 4 July 1991, tends to support the view which I have taken. Included within the memo is the following comment:
“Attached is a copy of Mr O’Shea’s licence and evidence indicates that he may have breached conditions 12 and 13 of his licence. Condition 12 states:
‘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.’
Condition 13 states:
‘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.’”
Following those events set out above, a request was made for an application to be made by the Crown Solicitor to a Justice for a warrant for O’Shea. The Crown Solicitor replied to that request with a letter to the Board referring again to O’Shea’s release on licence, and in particular setting out conditions 12 and 13 as they were originally drawn.
In conclusion therefore on this aspect, in the absence of any relevant document reflecting the fact that the amendment to the conditions had been made, together with the indicators which I have set out above, I find that the amendment was not made.
DUTY OF CARE - GENERALLY
Having come to the conclusion that the Board is not immune from suit, it is necessary to discuss in some detail the question of whether the Board, either generally or in specific instances, can owe a duty of care.
There have been three decisions in this State relating specifically to the Board and its operation. The first is Swan v State of South Australia (1994) 62 SASR 532 which was a decision of the Full Court. The second is X v State of South Australia which is a decision on a strike out application involving an earlier version of the pleadings in this case. Finally Judge Smith in the District Court dealt with the duty of care generally and the scope of the duty of the Board in L v State of South Australia [2004] SADC 110.

The Full Court in Swan held that the Board was under no general duty to supervise prisoners who had been released on parole, but that where the Board had been provided with information suggesting that a convicted paedophile who was in breach of his parole, was in fact spending nights in the company of young children, the court reasoned that a relationship of proximity was then created between the Board and the children, and that the Board then had a duty to take steps to prevent harm.
In Swan the State had been sued pursuant to the Crown Proceedings Act 1972. The Full Court dealt with an appeal from a decision dismissing the plaintiff’s cause of action. The comments made regarding duty of care were made in the context of an appeal against a strike-out application.
The offender had been released on parole. It was a condition of his release that he not associate with children under the age of 14 years except in the presence of an adult. Information was provided to the Board that there were children under 14 years of age present at his home. It was decided by the court that the trial judge erred in dismissing the action because it was arguable that there was both a duty of care in the particular circumstances of the Board’s knowledge, and also a breach of that duty.
The notion of proximity was a key factor in the reasons of the court. The court held that there was no proximity between the Board and members of the public sufficient to found a duty of care, largely it seems, because of the reasoning relating to the functions and duties of the Board in relation to the rehabilitation of prisoners and also for reasons of public policy.
In my view, with respect, the rationale for the decision is best expressed in the words of Duggan J at 551:
“It is appropriate at this point to have regard to the function and purpose of the Parole Board. The setting up of the Board is provided for in s55 of the Correctional Services Act. It must release a prisoner in respect of whom a non-parole period has been fixed upon completion of the non-parole period less remissions. The Board is required to impose certain conditions of parole and may, in its discretion, fix other conditions considered appropriate. It may vary or revoke conditions and it is given power to cancel parole upon breach of any conditions. The Board is authorised to conduct hearings appropriate to the discharge of its functions.
In my view it cannot be said that the respondent is to be held liable for the failure of the Parole Board to fix conditions of parole which might have prevented crimes committed by the parolee whilst on parole. The Board is required to release the prisoners. There is often a clear possibility in many cases a likelihood, that they will re-offend, but the requirement of the relationship of proximity and the considerations of public policy relevant to that relationship would exclude any liability based upon failure to adequately supervise a parolee who might constitute a danger to the community generally or to a particular but nevertheless broad class of persons in the community: cf Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 and contrast the distinctive risk which the plaintiff in Dorset Yacht Co Ltd v Home Office [1970] AC 1004 faced if the Borstal boys were allowed to escape.”
Duggan J went on to say at 551-552:
“These considerations were appreciated by the learned judge. However, the matter does not end there. 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 that 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.
Beyond that I think it unwise to go…”
In my view, it would be wrong to treat the decision in Swan by elevating it beyond a decision on the pleadings disclosing no cause of action. The comments of Duggan J set out above illustrate how guarded his reasons were in not going beyond what was necessary to deal with the issue on the appeal. I accept however that there are nevertheless important dicta in relation to the question I have to deal with in this matter, but of course all in the context of proximity being a key element in their Honours’ reasoning.
In Swan, the court referred to judgments of Deane J in Jaensch v Coffey (1984) 155 CLR 549 at 581-582, and Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 497-498 on the aspect of proximity.
The decision in Swan was clearly reached, in my view, because the court believed that there was at least an arguable point regarding proximity. The proximity that was mooted was between the Board and a rather limited class to whom the duty of care might be owed. The limited number of people to whom the Board might owe a duty in those circumstances were certain children staying in a house occupied by the parolee.
Justice Besanko in X v State of South Australia dealt with the decision in Swan and pointed out the changes that had occurred in the law in Australia since the time of the Swan decision. His Honour, as a single judge of this court, was bound to follow Swan in so far as it was indistinguishable.
His Honour said at [52]:
“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 the 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.”
His Honour then went on to deal with more recent decisions of the High Court in Sullivan v Moody (2001) 207 CLR 562 and Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540. I will turn to a discussion of those cases in due course.
After a discussion of the more recent decisions of the High Court, Besanko J summarised the position as he saw it at [70] as follows:
“The first limb of the decision in Swan (that is, 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 (that is, 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.”
Finally, in the context of the matter before Besanko J, that is a strikeout application, his Honour held that it was arguable that the Board owed a duty of care to the plaintiff, and was in breach of its duty, which is all that his Honour had to be satisfied with at the stage of the strikeout application.
Justice Besanko said at [55], in referring to the 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.”
Counsel for the defendant suggested that despite the analysis of the law by Besanko J, his Honour did not analyse the conflicting duties of the Board. It was submitted that the parole system is for the reform and rehabilitation of those in prison for the mutual benefit of the prisoner and society. See R v Shrestha (1991) 173 CLR 48 and Power v The Queen (1974) 131 CLR 623.
In Power at 629, Barwick CJ, Menzies, Stephen and Mason JJ described the legislative intention of an act dealing with parole in the ACT as:
“… to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all of the circumstances of his offence.”
This approach was endorsed in Shrestha by Deane, Dawson and Toohey JJ at 69.
The argument by the defendant is therefore that the Board’s duty in relation to rehabilitation, coupled with the aim of finally returning a prisoner into the community, with the overriding notion that a prisoner should only be returned to custody as a last resort, is inconsistent with a common law duty of care to individuals in the community, although the protection of the public in general is a legitimate consideration of the Board. It was put in argument that if a duty of care does give rise to inconsistent obligations, that would normally mean that there was a good reason for denying that any such duty existed. See Graham Barclay Oysters v Ryan at 555, 575 and 596.
It was also argued by the defendant that parole boards, of necessity, regularly obtain information regarding prisoners and that they could not possibly owe a duty to everyone who might be harmed by any prisoner for a breach of a variety of conditions. Examples were given of drug addicts, house breakers and prisoners involved in the abuse of alcohol, when it was highly likely that a reasonable percentage of them would re-offend. I was reminded in Ms Nelson’s evidence that there are currently 1,400 prisoners on licence or parole. It was submitted that to impose any duty such as the one suggested by counsel for the plaintiff in this case would make the work of the Board unmanageable.
It was further submitted that, because Besanko J did not enter into an analysis of the conflicting duties of the Board, the decision should be treated as informative, but it should not be put any higher than that.
I think there is a lot to be said for the restrictions which counsel for the defendant places upon the decision of X v State of South Australia and I bear those in mind in proceeding to examine other relevant decisions. The simple point is that Besanko J did not have to deal with these issues beyond determining that there was an arguable case.
The decision of the Full Court in CLT v Connon (2000) 77 SASR 449 referred to earlier by Besanko J in X v State of South Australia is also helpful. In that case, the court was considering the scheme set up under the Community Welfare Act 1972 in relation to the receipt of reports and the investigation concerning suspected offences against children. The court was divided as to whether the legislative scheme excluded a general duty of care.
At [84] Gray J summarised the movement of the High Court away from the notion of proximity:
“Although the High Court has moved away from the doctrine of proximity, no unified approach has been established to take its place. In Perre v Apand Pty Ltd Gleeson CJ and Gummow J considered that no general formula could be devised, and adopted the approach of isolating a number of salient features which combined to constitute a sufficiently close relationship to give rise to a duty of care. McHugh and Hayne JJ favoured an incremental approach. Callinan J considered a number of factors and found that their combination gave rise to a duty of care and suggested that the court should move incrementally. Gaudron J considered whether a legally protected right of the plaintiff had been infringed. Kirby J favoured the three stage Caparo test: Caparo Industries Plc v Dickman [1990] 2 AC 605.” (footnotes omitted)
As Gray J pointed out, those views expressed by the individual members of the High Court contained some areas of similarity with each of the judges recognising public policy factors as capable of excluding or negativing a duty of care.
Justice Gray, with whom Duggan J agreed, found that the legislative scheme in question showed an intention to exclude the common law. He referred at [125] to an earlier decision of Duggan J in H v Black [1995] Aust Torts Reports 81-340 at 62, 392 where Duggan J had said in relation to the Department of Community Welfare:
“In my view the suggestion of a duty of care owed to the plaintiff in the circumstances under consideration is the incompatible with the function and purpose of the departmental role. Furthermore, incorporation into these responsibilities of a duty to the plaintiff would have the potential to inhibit to a significant degree the performance of the duties of the Department. As I have said I do not wish to imply that great care should not be taken in order to avoid acting upon false allegations. However, I am of the opinion that this cannot be translated into a duty of care which would allow for a cause of action of the type claimed by the plaintiff. I find, therefore, that no such duty exists.”
The Full Court in Hillman v Black (1996) 67 SASR 490 dismissed the appeal from the decision of Duggan J. Although the notion of proximity was an important consideration in both the decision at first instance and on appeal, it is plain from the passage quoted above from Duggan J that the incompatibility of a duty of care with the function and purpose of the role carried out by the department was the influential factor in the decisions.
In CLT v Connon Doyle CJ differed in his interpretation of the statute, and held that it did not exclude the imposition of a common law duty. He discussed Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 and said at [35]:
“If, as in Crimmins, the conclusion is reached that the relevant statute does not exclude or negate the imposition of a common law duty of care, the Court must then apply an acceptable approach at common law to the determination of the question of whether a duty of care is in fact to be imposed. The provisions of the statute will again be relevant. But now they are part of the background against which the court determines whether or not to impose a duty of care. At this stage, the nature of the duties imposed by the statute, the relationship between the plaintiff and the person or body upon whom the duty of care is sought to be imposed, the purposes and object of the statutory scheme and other matters will be relevant. It is not just a matter of deciding whether the nature of the statutory scheme is such that it is inappropriate to impose a duty of care in the particular case. It is a question of whether, considering the relationship between the plaintiff and the defendants, including the features of that relationship attributable to the relevant statute, it is appropriate on ordinary common law principles to impose a duty of care.”
The High Court in Modbury TriangleShopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 dealt with the duty of care in relation to the criminal conduct of a third party who assaulted someone in the car park of a suburban shopping centre, and whether the owners of the centre owed any duty of care. Gleeson CJ, with whom Gaudron, Hayne and Callinan JJ agreed, said at 267:
“The unpredictability of criminal behaviour is one of the reasons why, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable.
There may be circumstances in which not only is there a foreseeable risk of harm from criminal conduct by a third party, but, in addition, the criminal conduct is attended by such a high degree of foreseeability, and predictability, that it is possible to argue that the case would be taken out of the operation of the general principle and the law may impose a duty to take reasonable steps to prevent it.”
In Sullivan v Moody at [51] – [53] Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ said:
“In Home Office v Dorset Yacht Co Ltd 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 thirty or more years reveal the difficulty of identifying unifying 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.”
In addition in Sullivan v Moody the court said at [60]:
“The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty off care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.”
I have already referred to the comments regarding Sullivan v Moody by Besanko J in X v State of South Australia at [55].
It seems to me that the relevant extracts of Sullivan’s case for the purposes of this case are set out above. I emphasise that aspect of the reasons which concentrates on public authorities, in which I include the Board, which are exercising powers in the public interest. In this case the Board also exercises its powers in the interests of each individual prisoner the subject of parole or licence. It seems to me that you would not expect, in the ordinary scheme of things, for the Board to also owe a duty to the interests of an indeterminate class of persons, including the plaintiff, because there would then be imposed upon the Board conflicting claims or obligations.

The defendant argues that by this time, that is, the end of May 1991, the plaintiff had sustained most of his damage. It took about a month for the interview to occur after the advice had been given to the Board. In that interview, the transcript reveals that the Board was clearly aware of the progress from the making of the list of names back in 1989 and what had happened since.
Accordingly, the end result of this interview was to warn O’Shea not to have any contact at all with children under sixteen years of age. The advertisement had to be removed, and O’Shea was specifically told that he was not to be involved with any group that teaches computer techniques to children.
The complaint made by the plaintiff is that a warrant should have been issued immediately. When Ms Nelson was asked about the whiz kids advertisement, and in particular whether it rang alarm bells, she again answered by reference to the previous release on licence by the Supreme Court. She said again that the Board believed that the court was effectively saying that O’Shea was now able to control his sexual impulses. Furthermore, she pointed out that gaol was a last resort, and that they were attempting to balance considerations of managing him. She posed the dilemma “what’s the choice?”. One answer was to cancel the licence and put him back in gaol where it was likely he would get out again, and then the process would recommence. Ms Nelson said that the Board was balancing that concept in the belief that up until that point of time, the Board had managed to control the situation, of course, based on the Board’s belief at that stage that nothing out of the ordinary had happened at the R centre.
On 4 July 1991 O’Shea’s parole officer wrote to the Board advising that he had received a complaint from Ms S that the plaintiff had been associating with O’Shea who had been taking advantage of him in various ways, but not giving full details of the relationship which had been going on for about eighteen months. A warrant was issued the following day. Following the issue of the warrant O’Shea was arrested, and shortly afterwards it was discovered that the plaintiff was missing. This in turn involves the actions of Humphrys. I deal again with the relationship between Humphrys and O’Shea and how Humphrys came to meet the plaintiff when I deal with the question of damages and causation.
On this occasion therefore the Board did take action, ordered the removal of the advertisement and banned O’Shea from any involvement with teaching computer techniques to children. On the balance of probability it is not possible to say that the failure to issue a warrant amounted to a breach of duty if the Board was capable of owing any duty of care.
The point made by counsel for the plaintiff is that the issue of the warrant on this last occasion illustrates how quickly the Board can move when required. It is suggested that had the Board followed the same procedure on the earlier occasion back in mid-1990 then much of the plaintiff’s suffering would not have occurred. Again, I will deal with this aspect when I deal with damages. The submission is that by this time there was only a minimal causal effect of any breach of duty because the bulk of any damage had already been caused.
CONCLUSION
From a consideration of the High Court decisions which I have referred to earlier, and with the assistance of the reasoning in the two decisions from the Court of Appeal in New South Wales, it seems to me that the relevant matters to consider as to whether a duty of care arises in this case could be summarised as follows:
1The relevant statute, the Sentencing Act, does not exclude the operation of a common law duty of care.
2The Sentencing Act, when used as a background, tends to indicate that there is no common law duty of care having regard to the nature of the powers and duties imposed on the Board.
3If a duty of care were recognised, the Board would have conflicting duties. On the one hand, it is primarily concerned with the rehabilitation of individual prisoners whether on parole or on licence, and on the other hand it would have a duty to protect the public at large, but in particular in the case of O’Shea, young children. This conflict weighs against imposing a duty of care in this instance.
4The statute only gives very limited control to the Board in relation to the way in which it can deal with someone on licence as illustrated by s24 of the Sentencing Act.
5The scope of any potential liability is far too wide to justify the imposition of a duty generally. There would be thousands of young children in the general area where O’Shea lived.
6The scope of potential liability would be reduced if only the R centre were included. Even then the class of persons to whom any duty was owed would include any child who might be brought to the centre at any time by an adult attending one of the various classes conducted at the centre.
7The risk of harm to all young children was foreseeable, but the potential indeterminacy of any class to whom this foreseeability extended is such as to count against the imposition of a duty of care
8Using proximity as one only of the indicators to determine whether a duty of care exists, there is not a sufficient proximity or relationship between the Board and the plaintiff on the facts of this case.
9There is no question that the plaintiff was vulnerable, but it is not sufficient that the Board has powers created by statute to control a prisoner on licence in the limited sense I have referred to create a duty of care.
10The knowledge of the Board that harm may result if it does not exercise its powers is not in itself sufficient to create a duty of care.
Finally, the tests as set out by McHugh J in Crimmins are, with respect, a very helpful way of analysing the position in which the Board was placed in this matter. I use these factors as tests in conjunction with the considerations I have set out above and in effect as a check list.
In Crimmins v Stevedoring Industry Finance Committee McHugh J sets out the following test, at [93]:
“In my opinion…in a novel case where a plaintiff alleges that a statutory authority owed him or her a common law duty of care and breached that duty by failing to exercise a statutory power, the issue of duty should be determined by the following questions:
1. Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests? If no, then there is no duty.
2. By reason of the defendant’s statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no, then there is no duty.
3. Was the plaintiff or were the plaintiff’s interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If no, then there is no duty.
4. Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, there is no duty.
5. Would such a duty impose liability with respect to the defendant’s exercise of “core policy-making” or “quasi-legislative” functions? If yes, then there is no duty.
6. Are there any supervening reasons in policy to deny the existence of a duty of care (eg, the imposition of a duty is inconsistent with the statutory scheme…) If yes, then there is no duty.”
Applying McHugh J’s test to the circumstances of this case reveals factors which support the recognition of a duty of care as put forward by the plaintiff, as well as factors which militate against such a duty.
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.
The question of whether the Board had the requisite control is more complicated. The relevant power, that is the power to cancel the release of O’Shea, could only be exercised on the application of the Crown. Ms Nelson testified that this limitation was a cause of concern for the Board, and that the usual procedure was for the Board to request that the Crown make an application if the Board decided that it was necessary to exercise this power. On balance I find that the Board did not have the requisite control in relation to a specific class of persons. While protection of the public at large was one of the key considerations of the Board, it had a very limited ability to control a person on licence, or to protect any particular group from that person.
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.
In relation to the last two considerations identified by McHugh J, it is point 6 which is of most relevance. The purpose of the Board is to facilitate the rehabilitation of prisoners and their return to the community. The release of prisoners into the community involves an inherent risk that those people will re-offend, and the Board must consider the protection of the public in exercising its powers. I find that for the Board to owe a duty of care to prevent a person on licence causing harm to individuals in the community by re-offending is inconsistent with the functions of the Board. In reaching that conclusion I also consider that the potential for such a duty to give rise to a flood of claims weighs strongly against the recognition of a duty of care in these circumstances. Logically it would extend to a duty owed to all females if a rapist were released on licence, to all householders if an habitual housebreaker was released and probably to all bottle shop proprietors if an habitual armed robber was released. That would be casting the duty far too wide.
I have earlier referred to the decision of his Honour Judge Smith in the District Court of South Australia in L v State of South Australia. In that case a prisoner had been mistakenly released by the Board because of an error in recording the details of the sentence. Clearly someone was negligent.
Judge Smith having comprehensively dealt with the recent decisions of the High Court concluded that whilst the State of South Australia through its servants or agents was negligent, the scope of the duty of care did not extend to cover the events which occurred eight months after the prisoner was released. The prisoner broke into the house of the plaintiff and raped her. The claim was dismissed.
This decision illustrates the difficulties I have referred to regarding the scope of any duty imposed in the circumstances of both that decision and this matter.
ASSESSMENT OF DAMAGES
For the benefit of any court considering this matter on appeal, I proceed to assess damages. I have set out as part of the background details of the continual abuse perpetrated on the plaintiff by O’Shea. I have also dealt with the immediate impact on the plaintiff in the months following his return from Sydney and his hospitalisation. This initial impact was devastating in terms of the plaintiff’s loss of enjoyment of life, and his pain and suffering.
It is submitted on behalf of the plaintiff, and is not disputed, that following the traumatic incidents which have been outlined so far, the plaintiff suffered from a post-traumatic stress disorder. This has had the effect of interfering with the plaintiff’s life from that time. The abuse has prevented him from having any normal youthful experience, and has denied him any adolescence at all in that he has been transferred by O’Shea’s actions from the world of a nine-year old boy into an adult world. As a result, he has also been deprived of a vital part of his eduction and this fact sounds in damages for both his loss of enjoyment of life and his loss of earning capacity.
The plaintiff submits that his present income is approximately $5,000 per annum below any reasonably anticipated wage which he could expect to be earning at the present time. A schedule provided to me shows that the highest net income earned by the plaintiff in recent years was approximately $22,500 in 2002. It is also submitted that it is unlikely that he will achieve full registered or district nurse status, or complete his degree because of the difficulty he has with the pressure of work and the recurrences of events which trigger memories of the abuse which he suffered at the hands of O’Shea. I think the estimate of loss of $5,000 per annum is conservative and more like $8,000 had he developed his full earning capacity to the present time. The discrepancy is likely to be greater as time goes on. I do not believe he will hold down a permanent nursing job for the reasons advanced by the doctors.
In relation to the loss of earning capacity to date, I would work on a loss of three and a half years employment allowing for the fact that the plaintiff would have completed three years of tertiary education at about the age of 21. I assess his loss at $8,000 net per annum over and above what he has actually earned in that time, and then I make a small deduction for adverse contingencies. In all the circumstances I assess his loss of earning capacity to date in the sum of $24,000.
It is my view, having had the opportunity of assessing the plaintiff and observing him give his answers in the witness box, that he is a highly intelligent young man who I believe is now completely underachieving as a result of the abuse he suffered. I consider that it is likely that he would have gone on to achieve much better than he is ever likely to now. I also consider that he has lost the chance to fully educate himself due to interruptions with both his primary and secondary schooling, and with his current inability to settle down in his tertiary endeavours.
Professor McFarlane, a specialist psychiatrist, regarded the plaintiff as an articulate person who was able to give a good account of himself. He described his present situation as being someone who is very capable but without the performance to match his capabilities, and to use Professor McFarlane’s words, “He is just hanging on by the edge of his fingernails at the present time”.
In relation to his professed intention to work in the nursing environment, Professor McFarlane has some concerns and believes that the plaintiff would have difficulty working under direction because the work would not enable him to be flexible in relation to choices of his own. He does not believe that it will be any easier to predict the plaintiff’s future if he were studying fulltime as distinct from the combination of studying and working. I have taken these views into account in assessing damages.
Professor McFarlane also believes that the plaintiff has disadvantages in obtaining employment in an unskilled area. The reason for this is that the experience of similar victims shows that these people spend on average of about four days per month when they can’t actually attend work or function properly in their normal role in the workplace because of their mental state. I have likewise allowed for this in my assessment of loss of future earning capacity.
Dr Bertram, another specialist psychiatrist, saw the plaintiff after his admission to the Children’s Hospital following his kidnapping and return from Sydney. He had quite a bit to do with the early treatment of the plaintiff.
In relation to employment, Dr Bertram believes that the plaintiff should be “steered into a relatively emotionless employment”. I asked Dr Bertram whether he thought that this plaintiff would be better off in a business of his own, avoiding the clashes with authority and giving him more flexibility, and Dr Bertram agreed with this suggestion. He is also of the opinion that the plaintiff is a person of high intelligence, and that had it not been for these tragic events, he would likely be in a much better position employment wise than what he can now aspire to.
For the future, I believe that the plaintiff had the intelligence and ability together with the necessary drive to have continually bettered his position in the workplace. He has lost the chance of pursuing more productive earnings, and in addition I find that he will have considerable periods of absence from work which will not endear him to most employers, thus rendering him likely to lose employment from time to time.
I believe conservatively that the plaintiff will now earn, for the rest of his working days, at least $20,000 net less than what his potential earning capacity was. That converts to about $400 per week. Applying the multiplier supplied to me to age 65 of 1,185, the capitalised figure is close to $475,000. I then adjust this for the normal contingencies adverse and positive including a specific allowance for the loss of a chance to earn even greater amounts in the future, and I reach a figure of $400,000.
From that figure I then deduct what I regard as a reasonable proportion to cater for the argument that much of the plaintiff’s loss was suffered prior to the time of what I will call the notional breach of duty by the defendant in August 1990. I therefore allow the sum of $200,000 for loss of future earning capacity.
For the assessment of non-economic loss, a very real question is the significance of the various phases during which the plaintiff suffered abuse. I find that it commenced with O’Shea meeting the plaintiff and shortly thereafter commencing some form of abuse in about January 1990. Certainly from the time of the football match on 14 April 1990, a great amount of the damage finally caused had already been set in train. By the time Humphrys entered onto the scene in say April 1991, it is my view that most of the damage had been done, and in any event, O’Shea’s actions meant that the plaintiff became vulnerable to being abused by Humphrys.
The post-traumatic stress disorder commenced, on the medical evidence, from virtually the beginning of the abuse by O’Shea but certainly by 14 April 1990. In the events which I have described, if I am wrong in relation to the duty of care, and if the Board can be liable for its actions or inactions, then any such occasion for finding a breach of duty post-dates the incident on 14 April 1990. The defendant therefore argues that the real damage occurred prior to the time of any possible breach of duty by the Board. If that damage was made worse as a result of the abuse which took place after 14 August 1990 I would therefore have to assess general damages for pain and suffering and loss of the amenities of life, on the basis of some form of aggravation.
The medical evidence before me, by way of direct oral evidence, came from Professor McFarlane and Dr Bertram. There were also reports tendered by consent relating more to the early stages following the trauma suffered by the plaintiff. In relation to the possibility of future treatment, Professor McFarlane points out that the treatment does involve a focus on the trauma, and that whereas this type of treatment tends to have the best results, it involves the individual returning to the memories of what occurred and thus recreating much of the distress. There is also the risk of making things worse, especially in relation to a victim such as the plaintiff.
Professor McFarlane spoke of the triggers which could bring back unpleasant memories which the plaintiff has. For instance, if he were to see someone who looked anything like O’Shea, it may act as a trigger causing him anxiety and distress, and leaving him depressed. Likewise, any smell which was associated with O’Shea, for instance body odour, would be likely to again act as a trigger. The plaintiff has unfortunately suffered from such incidents.

In relation to the important question of causation, it is Professor McFarlane’s view that any increased period of sexual abuse obviously increases the effect on a victim. In relation to the initial introduction and sexual contact with O’Shea, it is Professor McFarlane’s view that in those early days probably enough had occurred for him to have developed some form of post-traumatic stress disorder, but he pointed out that the longer it went on, the greater the impact on the plaintiff’s personality development and the disruption of his general functioning. He agreed that if it had gone on for a period of months, it would already have had serious effects on his personality, and future functioning. I find that it had gone on for at least six months before August 1990.
It was Professor McFarlane’s view that in the latter part of the relationship with O’Shea, the plaintiff started to dissociate, and that was at a time when the abuse by Humphrys had commenced. However, the abuse by Humphrys, intrusive and offensive as it was, was always far less a problem for the plaintiff than the abuse perpetrated by O’Shea, probably because he had dissociated at about the time the abuse by Humphrys started together with the fact that there was the additional element of the breach of trust by O’Shea which had a profound effect on the plaintiff.
Although all victims of such abuse are potential suicide risks, it is Professor McFarlane’s view that probably the plaintiff has negotiated the most difficult period of his life, and that the risk is now significantly less than it would have been three years ago.
Dr Bertram believes that if the abuse had commenced in late 1989 and proceeded for a period of nine months or so, the plaintiff probably would still require the same sort of treatment that he needs now.
He agrees with Professor McFarlane in relation to the initial sexual contacts between the plaintiff and O’Shea and that those initial contacts are responsible for initially causing a post-traumatic stress disorder, but he also agrees, as he puts it, that “time just adds layer upon layer of trauma such that the child becomes more damaged”. He likewise agrees with the fact of some treatment being a likely advantage to the plaintiff. He points out that the plaintiff has tried to treat himself effectively by what Dr Bertram describes as highly intellectual methods which of course have not led to a cure. He also agrees that antidepressant therapy by way of medication would be useful. He believes that the plaintiff should have weekly treatment for a period of years and I have built this into my allowance for future medical treatment.
Professor McFarlane also believes that the plaintiff would benefit from being seen by a psychiatrist regularly because he still has symptoms of post-traumatic stress disorder and should be treated. I have allowed for the likelihood that the plaintiff will seek some treatment when the stress of these proceedings is over.
I give the plaintiff great credit for trying to deal with his problems himself without seeking active treatment by way of either consultations or medications. It is apparent that he has not been entirely successful, but no criticism is made by way of any suggestion that he has failed to mitigate his loss.
The plaintiff has received compensation under both Victims of Crime compensation schemes in this State and in New South Wales. For the purposes of this award I ignore any such compensation.
I have set out in some detail, as part of the history in this matter, the abuse sustained by the plaintiff at all relevant stages. In my view, he would have to be compensated, if the defendant were liable, for the effects which the Board’s inaction caused in the aggravation, continuation and deterioration of his mental state. I would therefore have assessed damages for non-economic loss in the sum of $120,000, being as to $45,000 for the aggravation to date and $75,000 for future non-economic loss. This figure represents only a proportion of what the plaintiff would be entitled to if there had been no causal factors reducing the amount.
On the authorities and in particular Wheeler v Page (1982) 31 SASR 1 interest would be allowed at four percent on the past non-economic loss. If that is allowed for half the period, say seven years, then the amount would be approximately $12,000. In relation to past economic loss I would allow lump sum interest of $4,000.
In relation to a claim for the future care required, the evidence was not all that helpful on this aspect, but I would allow the lump sum of $20,000. This is on the basis that I consider on the whole of the evidence that it is likely that the continued abuse beyond August 1990 has made the treatment likely to be more complicated and for it to take longer.
I take the view that there has been no claim put forward for loss of voluntary services on the basis that no amendment was made to the pleadings at a stage where there was argument on this aspect, and in short there is nothing to substantiate or calculate any such claim.
Special damages have been agreed as to quantum in the sum of $3,565.25. The defendant submits that all of these expenses would have been required in any event as a result of the early abuse, and none of those expenses can be attributed to any aggravation caused after 14 August 1990. I would allow approximately half this amount, namely, $1,750.
In summary, the amount of damages I would have awarded the plaintiff, had I been able to find that the Board was under any duty of care, would have been:
1      General damages for past non-economic loss $45,000;
2      General damages for future non-economic loss $75,000;
3      Allowance for past loss of earning capacity $24,000;
4      Allowance for future loss of earning capacity $200,000;
5      Allowance for future medical treatment $20,000;
6      Special damage $1,750;
7      Interest for past non-economic loss and past economic loss $16,000.
Total: $381,750.
However, for the reasons previously expressed, the plaintiff’s claim is dismissed.