A v Roman Catholic Archdiocese of Wellington HC Wellington CIV 2001-485-961
[2006] NZHC 888
•31 July 2006
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JUDGMENT MAY BE PUBLISHED IN THIS FORM ONLY
˝ FINAL ORDER THAT THE FILE SHOULD NOT BE SEARCHED WITHOUT THE LEAVE OF THE COURT FIRST OBTAINED
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2001-485-961
BETWEEN A Plaintiff
ANDTHE ROMAN CATHOLIC ARCHDIOCESE OF WELLINGTON First Defendant
ANDCATHOLIC SOCIAL SERVICES Second Defendant
ANDTHE SISTERS OF MERCY (WELLINGTON) TRUST BOARD Third Defendant
ANDST JOSEPH’S ORPHANAGE TRUST BOARD
Fourth Defendant
Hearing: 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 15, 16, 17, 18, 19 August and 5, 12, 13,
14, 15, 16 and 19 September 2005
Appearances: Ms H A Cull QC together with
Ms N Levy for the Plaintiff
G J Thomas together with
Ms A S McIntosh for the First and Second Defendants
C F Finlayson together with
Ms M E Hubble and
Ms O C K Ormond for the Third and Fourth Defendants
Judgment: 31 July 2006 at 11.30 am
JUDGMENT OF FRATER J
This judgment was delivered by Justice Frater on 31 July 2006 at 11.30 am, pursuant to
r 540(4) of the High Court Rules
Registrar/Deputy Registrar
Date:
A V ROMAN CATHOLIC ARCHDIOCESE AND ORS HC WN CIV-2001-485-961 31 July 2006
INDEX Table of Contents
Para No Introduction [1] The defendants [2] The nature of the claim [5] Defences [6] Background [7] The plaintiff’s version of events
The process of remembering
The first eight years
St Joseph’s Orphanage and School Placement in foster and holiday homes St Mary’s College
The Ds
The other witnesses Who they were For the plaintiff
For the first and second defendants For the third and fourth defendants Dr Marks
What they said
About the family
St Joseph’s Orphanage and School
Catholic Social Services’ involvement during the St Joseph’s years
Placement with the Ms
St Mary’s College and life as a boarder
Living with the Ds
The plaintiff’s psychiatric condition
Factual findings/commentary
Difficulties in ascertaining the truth
Psychiatric evidence Credibility of the plaintiff The approach taken Parental default
The Whatman Home The St Joseph’s years Sexual abuse
Appreciation of symptoms of child abuse and treatment options available during the late 1960s to mid 1970s
Approach taken by Catholic Social Services
Summary
The claims
Negligence
Breach of fiduciary duty
What is not pleaded
[20]
[21] [25] [39] [45] [52]
[55] [58] [59] [60]
[61] [69] [150] [168] [179] [206] [216]
[224] [229] [238] [244] [245] [252] [253] [309] [336]
[347] [361]
[371] [376] [377]
The issues [378]
The legislative context
The Child Welfare Act 1925
The Child Welfare Amendment Act 1927
The Guardianship Act 1968
The Children and Young Persons Act 1974
Crimes Act 1961
Negligence
Duty of Care The test Submissions
Impact of the Child Welfare Act
The duties in this case
The first and fourth defendantsBreaches
Catholic Social Services
The third defendant
Vicarious liability of second defendants for sexual abuse
[385] [386] [398] [401] [404] [405]
[406] [408] [416] [430] [454]
[459] [472] [478]
Breach of fiduciary duty [495] Accident Compensation defence [500] Limitation Act Defence [544] Damages [545] Summary of findings in relation to the plaintiff’s claim [546] Costs [560]
INTRODUCTION
[1] The plaintiff (referred to in this judgment as “A”) claims that between 1968 and 1978, while at St Joseph’s Orphanage in Upper Hutt, St Mary’s College, Wellington, and various foster homes and holiday placements in Wellington and the Wairarapa, she was verbally, emotionally, physically and sexually abused and generally deprived of a normal upbringing. As the defendants were responsible for her care during this time, she claims that they should be liable for the severe emotional, physical and mental damage she suffered as a consequence.
THE DEFENDANTS
[2] The second defendant, Catholic Social Services, is the principal social service provider of the first defendant, the Roman Catholic Archdiocese of Wellington. Both the first and second defendants have charitable status pursuant to the Charitable Uses Act 1601.
[3] The third defendant, the Sisters of Mercy (Wellington) Trust Board is a charitable trust registered under the Charitable Trusts Act 1957 and is an institute of members of the order of the Sisters of Mercy, a Catholic order of nuns founded in Dublin in 1831, with a particular focus on providing “Christian education” and “care for the sick and those in spiritual and temporal need”.
[4] The fourth defendant, which is managed by the Sisters of Mercy, is the registered proprietor of the land on which the orphanage stood.
THE NATURE OF THE CLAIM
[5] The primary cause of action against all four defendants is based in negligence. Alternatively, and only if the primary claim is unsuccessful, the plaintiff alleges breach of fiduciary duty. In each case she seeks compensatory, aggravated and exemplary damages for the loss which she says the defendants caused her.
DEFENCES
[6] As well as challenging most of the factual allegations made by the plaintiff, the defendants dispute that they owed the claimed duties of care to the plaintiff or that they are vicariously liable for the acts of others. They also raise positive defences under the ACC legislation and, in the case of physical abuse only, the Limitation Act 1950.
BACKGROUND
[7] The plaintiff was born on 16 December 1959, the third of the seven children of Mr A and Mrs A. She was christened SLA but much later adopted the name of AGA, by which she is currently known. She has four brothers: RA born in 1957 (now deceased); PA in 1961; AA in 1962; and MA in 1966. Her sisters, KA and LA, were born in December 1958 and August 1963 respectively.
[8] Her parents separated in early 1967 and all the children were placed in residential care. Mr A placed the plaintiff and her older sister, KA, in the Whatman Home in Masterton, a children’s home run by the Salvation Army. LA and MA were admitted to the Salvation Army home in Newtown, Wellington, and the three older boys went to Sunnybank, near Nelson, a home then run by the Sisters of the Mission, an order of Catholic nuns unconnected to the third defendant.
[9] In February 1968 the plaintiff and KA were uplifted from the Whatman Home and placed, instead, in St Joseph’s Orphanage in Upper Hutt. Later that year they were joined by LA.
[10] The plaintiff lived at St Joseph’s Orphanage from 5 February 1968 until
4 May 1973: more than five years. The orphanage, like the nearby St Joseph’s Primary School that she attended, was run by nuns of the Sisters of Mercy. In practice, they looked after her day to day care during term times and Catholic Social Services found foster placements for her during most, but not necessarily all, school holidays.
[11] From May to December 1973 the plaintiff lived with the M family in Karori and attended St Theresa’s Catholic Primary School. When this placement broke down, Catholic Social Services arranged for her to attend St Mary’s College and live in the boarding establishment attached to the college.
[12] The plaintiff attended St Mary’s from February 1974 until she left school at the end of 1977. Her sisters also went there, although not as boarders.
[13] She continued as a boarder until the hostel closed at the end of 1976. Thereafter she was placed in a Catholic Social Services family home run by the Ds, where LA also lived.
[14] After leaving school the plaintiff worked for a short time in a restaurant and then, for four years, in a bank in Wellington. For the first year of her employment she remained with the Ds. Then she went flatting but retained some contact with them. In late 1981 or early 1982 she moved to Western Australia.
[15] In Australia she worked in a variety of jobs, up until the birth of her elder son in January 1987.
[16] Her distress at the time was such that her doctor, Dr Ralph Chapman, referred her to a clinic for specialist psychiatric care. In the four years thereafter she attended a women’s therapy and support group run by Letitia Allan, with whom she also had some individual counselling. The primary focus of the counselling was on parenting issues and crisis management. It was during this time that she first disclosed that she had been sexually abused.
[17] The plaintiff’s second son was born in December 1991. Both boys have the same father. He lives in New Zealand and has never lived with the plaintiff or played any part in the children’s lives.
[18] From 1996 onwards the plaintiff has been a member of the Victory Life Church and between 1997 and 1998, attended Bible College. Through her connection with the church she met a therapist, Dee DuCrow, and became a member
of a counselling and support group for survivors of sexual abuse. This led her, in early 1999, to obtain a copy of her Catholic Social Services file.
[19] Reading the file triggered memories of her past life. In order to investigate and test the reliability of those memories she returned to New Zealand, with her sons, in September 2000. In the course of the visit she made a statement to the Police alleging that she had been sexually abused and, in March 2001, instituted the current proceedings. She then returned to Australia where she still lives.
THE PLAINTIFF’S VERSION OF EVENTS The process of remembering
[20] Through counselling the plaintiff slowly, and often painfully, began to recall and address the events of her past. The allegations have emerged, piecemeal, over time. She readily acknowledges that she is not good at remembering dates or pinpointing when particular events occurred. Memories emerged during the sessions which she had with psychiatrists in 2003 and 2004 and further allegations of sexual abuse were made as late as May 2005. Some of her memories remain rather amorphous; others she has been able to refine and particularise by reference to her medical records and contemporaneous records provided by the second and third defendants, the Salvation Army, and the Department of Social Welfare. Still others have been triggered by speaking with members of her extended family and re- visiting places where she lived or visited during her childhood.
The first eight years
[21] The plaintiff’s memories of her first eight years are generally happy, but not uniformly so.
[22] Although her family moved around, her only memories of their time together relate to their home in Carterton. She believes that her mother loved her and wanted to care for her. And although her memories of her father are limited, she feels that he too loved her and their family.
[23] However, there are also horrific memories. While she cannot remember either her father or mother verbally or emotionally abusing her, she accepts that her father physically abused her. She remembers sitting outside pubs waiting for him, and of him being violent to her mother. A particularly vivid memory is of hiding behind the back door of the Carterton home, watching her father kicking, hitting and screaming at her mother, who took off her wedding ring and threw it away.
[24] Shortly afterwards the family broke up and the plaintiff went to the
Whatman Home. She remembers her time there fondly. She felt safe and happy.
St Joseph’s Orphanage and School
[25] By contrast, her recollections of the years she spent at St Joseph’s Orphanage are mostly negative. She described the atmosphere there as devoid of love, compassion, understanding or caring and said that she felt constant fear, anxiety, apprehension and distress. While acknowledging that others’ experience of the orphanage and adjoining school may have been different, she claims to have suffered persistent and ongoing abuse there.
[26] First there was the verbal abuse. She claims to have been constantly verbally abused, harassed and harangued, shouted at and screamed at by all the nuns. There were some whose remarks she particularly remembered. There were also different types or topics of abuse, including:
a) Cruel and demeaning personal comments, for example that she was:
• A liar and a loser (Sr Ligouri and others);
• Selfish, ungrateful and unthinking (Sr Catherine, Sr S and
Sr Gerardine);
• Undeserving (Sr Gerardine and Sr S);
• Unloved, inadequate or worthless (Sr Ligouri, Sr A, Sr S and
Sr Gerardine);
• A sissy and a no-hoper (Sr A);
• A useless child, a pathetic dumb creature and a thief (Sr S);
and that:
• Nobody cared about her or wanted her (Sr S); and
• Her mother was useless (Sr Ligouri);
b) Threats of damnation, for example, that she:
• Was evil, immoral and wicked (Sr Ligouri, Sr A, Sr S and
Sr Gerardine);
• Had committed mortal or cardinal sins; and
• Was the worst of the worst and would go straight to hell, not purgatory (Sr S and others);
c) Threats that if she caused trouble:
• Food would be withheld from her;
• She would be locked up, placed in the cells, or go to gaol; and
• Catholic Social Services (Father Peter McCormack) would be involved.
[27] This verbal abuse was said to be part of widespread emotional abuse which pervaded the running of the institution.
[28] An example of the type of behaviour – or more correctly, failure to act – which the plaintiff claims had a significant effect on her, was the alleged failure to tell her whether she would be returning to live with her parents and siblings, and
never being given an explanation about what was happening in her life and with her family.
[29] Other alleged behaviours, such as preventing her from keeping gifts or clothes given to her by her mother, were said to have been deliberately undertaken with a view to affecting their relationship. For example, Sr A is said to have taken a cuddly pink bunny rabbit, which Mrs A had given the plaintiff, and put it on a bed in another dormitory where she could see it, but not touch it. In addition, the same sister is said to have:
• Criticised her for showing affection to her mother;
• Treated her in an alarming and inconsistent way after she had been a bridesmaid for her aunt: on the one hand making a fuss of the wedding party and saying how beautiful they were, and then, after the plaintiff returned to the orphanage after the wedding, ripping the clips out of her hair and stripping the clothes off her, saying:
Who do you think you are, wearing this dress; it’s disgusting and indecent; you are not allowed to look nice; you’re ugly.
• Verbally abused, humiliated and belittled her, in front of the other girls in the orphanage, after she wet her bed; and
• Wrongly accused her of setting fire to a dormitory.
[30] In addition, Sr S was said to have reprimanded the plaintiff and another girl for playing in a “cubby house” they had built on the tennis court and allegedly engaging in inappropriate sexual behaviour there. Another nun, originally thought to be Sr Catherine, was said to have made her write thank you letters to people she had spent holidays with, even when she had been very unhappy with them.
[31] More generally, the plaintiff claimed that the nuns:
• Isolated her from her sisters and other girls at the orphanage;
• Played one girl off against another;
• Sometimes put them in physical isolation;
• Emotionally manipulated them; and
• Depersonalised them by referring to them by their laundry numbers (hers was 18) rather than their Christian names.
[32] Physical abuse was also said to be an everyday occurrence, both at the orphanage and the school.
[33] The plaintiff claimed that, on one occasion, after she had been in the school hall, allegedly with permission, Sr Ligouri hit her on her hands, the backs of her leg and her bottom with a leather strap, causing bruising. She said that she was also strapped or hit by Sr A, Sr S and Sr Gerardine, among others. She recalled being hit by Sr Gerardine at least 10 times on the hand with a wooden-backed hairbrush and by Sr A over the head with an open hand and about her body with a long wooden ruler. She claimed that on several occasions she was hit over the head so severely that she lost consciousness. But she was not alone in receiving this type of punishment. She remembered girls being lined up in the workroom at St Joseph’s on a regular basis and hit by Sr A if they gave the wrong answer to questions put to them.
[34] Another alleged form of physical punishment was to withhold food.
[35] However, by far the most serious allegation of physical abuse concerns an occasion in 1970, when, the plaintiff claims, Sr S beat her hard around the right side of her face and right ear about six times, causing massive bruising, and perforating the tympanic membrane in her ear. This happened after the sister found her, looking at the writing in another girl’s exercise book. Sr S accused her of stealing other people’s information and called her a thief. Sr Theodore is said to have seen the bruising a few days later, but done nothing about it.
[36] The plaintiff claimed that, as a result of the nuns’ treatment of her at the orphanage she became withdrawn; she tried to behave like a robot, not showing any emotion or that she had any human needs.
[37] In addition, in May 2005, after the proceedings had been issued, the plaintiff claimed, for the first time, that she had been sexually abused at the orphanage by Peter McCormack. He was then a Catholic Priest in charge of Catholic Social Services, and visited the orphanage in that capacity. He also went there to see his aunt, who had Down’s Syndrome. She lived there until her death in August
1968.
[38] The specific allegation was that when the plaintiff was about eight years old Mr McCormack made her perform oral sex on him. She remembered this happened in the front room and that, after the incident, she was very upset and vomited in the garden. The nuns who saw her took her into the playroom and reprimanded her for being upset.
Placement in foster and holiday homes
[39] From the time she started at St Joseph’s until she left St Mary’s, arrangements were made for the plaintiff to stay with families during the school holidays. Occasionally she also stayed with members of her extended family, or visited them during weekends.
[40] She alleges that she was sexually abused on some of these placements.
[41] The first occasion was when she was nine or ten years old, at a home in
Holly Grove, in Maungarakei. This would have been some time between 1968 and
1970. She claimed that one evening, when she was in the bathroom, cleaning her teeth, the male adult in the house came into the room in his underwear, and made her masturbate him. The episode ended when the female adult walked in and queried what was going on. In the absence of any records of her earlier holiday placements while at St Joseph’s, the plaintiff is unable to identify the alleged abuser. Initially she did, but she now accepts that the name she gave was wrong.
[42] The second abuser, in point of time, is said to have to been Mr S. At the time he was a farmhand on a large property in the Wairarapa. The plaintiff and her sister LA stayed with Mr S, his wife and young children during the 1972/73 Christmas holidays. The plaintiff claims that he sexually abused her many times. In particular, she said that when she rode on the back of his farm bike he would make her put her hand down the front of his trousers and masturbate him. Then, early one morning in January 1973, he and his wife came into the girls’ bedroom, after an earthquake, to check that they were all right. Both adults were naked. After Mrs S went back to her bedroom, Mr S got into bed with the plaintiff. The plaintiff does not remember what happened next, if anything. However, she does remember that, at his suggestion, when they went swimming in the pool belonging to the owners of the farm, they swam in the nude.
[43] The next episode of sexual abuse was said to have been committed by SN, the son of the plaintiff’s sister KA’s foster parents, during a visit in the 1974/75
Christmas vacation, after the plaintiff had spent a year as a boarder at St Mary’s College. She claims that he raped her in her bedroom, while one of his siblings was asleep in the same room. She now believes that she was set up as, unusually, SN’s father made her have a shower both before bed that night and again the next morning. She mentioned this episode in a statement she gave to the Police in 2001.
[44] The alleged abuse by her maternal grandfather, FA, at his home in Wallaceville, Upper Hutt, was the first disclosed. The plaintiff used to visit him there when she was at St Mary’s. She recalled that usually she was alone, although once she took two other boarders with her. Another time, her grandmother, who was separated from her grandfather, was also there. She said that she was abused twice. He was drunk both times. The first time he had intercourse with her in the bathroom. On the second, she was lying down on a bed. After that she never went back.
St Mary’s College
[45] The plaintiff described her time at St Mary’s as another nightmare period in her life.
[46] She is critical of the standard of education she received at the school. (She left after attempting School Certificate twice and failing to pass more than one subject each time).
[47] She claims that initially she was inappropriately placed in the top third form at the school; thereafter she effectively gave up trying. She thought she did not have the ability to achieve and was not supported to do so.
[48] She did not have friends and felt isolated in the boarding establishment. Initially she was placed in a dormitory with fifth form girls. Later she was placed with her peers, but she still felt different. Her basic concern was lack of money in a setting where some girls had plenty. She claims to have shoplifted in order to obtain appropriate clothes, and that she sometimes went to pubs with her father on Friday afternoon or evenings, before returning to the hostel, the worse for wear. She also claims to have smoked cigarettes, taken drugs and met up with boys. No one cared or even noticed. She was regarded as a “charity case”.
[49] And while physical abuse did not figure nearly as much at this time, there was one incident when, she said, the boarding mistress, Sr Patricia, found her on the stairs at night, and told her that if she did not behave, she would be made to sleep downstairs. When the nun also told her that men sometimes got into the boarding school at night she spun out. Sr Patricia reacted by hitting her and she hit her back. The plaintiff claimed that Sr Patricia never showed any concern for her, asked her how she was or if she needed anything. In particular, she saw the problems she was having with her damaged ear, but never sought medical attention.
[50] During this time the plaintiff’s contact person at Catholic Social Services was generally her social worker, Mary McGreal, and more sporadically, Mr McCormack. While the plaintiff acknowledged talking with Mrs McGreal, she denied that she provided her with support counselling.
[51] Her criticism of Mr McCormack at that time was that on one occasion he inappropriately chastised her for using too many tampons, telling her that she was “dirty” and that being a woman was dirty.
The Ds
[52] There are two particular aspects of this period which the plaintiff complains about.
[53] The first is the way that Mr D treated her. She believes that he took an immense dislike to her. He continually picked on her, put her down and showed no compassion when she was feeling upset or confused. He accused her of being “selfish”, “lazy” and “only thinking of herself”. The dislike was manifest in the following incidents:
• Turning the water on to cold while she was in the shower;
• Forgetting to collect her after school when she had a broken or sprained ankle and was on crutches, and then asking her why she could not catch the bus like the rest of the children; and
• Hitting her hand with the carving knife when she picked at scraps of meat as he was carving a Sunday roast.
[54] Secondly, she alleges that while she was living with the Ds, she was sexually abused by a neighbour, Mr L. She claims that after an evening at his home playing drinking games, she awoke in his daughter’s bed to find him raping her. She thinks she was between 16 and 18 years old when this happened. She also remembers masturbating him in his bedroom.
THE OTHER WITNESSES
Who they were
For the plaintiff
[55] LA gave evidence for the plaintiff concerning her experiences of living at the orphanage, as did DS, Shirley Ford, RH and GT, all of whom also lived there, either before or during the time that the plaintiff did. In addition, CH and MC spoke about
their experiences at St Joseph’s School in the decade before she was a pupil there. Apart from LA, and GT, who was originally briefed to give evidence for the third and fourth defendants but ultimately was subpoenaed by the plaintiff, all these women came forward as a result of media reports concerning this case.
[56] The plaintiff also called her doctor, Dr Chapman, her therapists, Ms Allan and Ms DuCrow, and two expert witnesses: Dr Crawshaw in relation to her mental health, and Dr Nash, concerning the injury to her ear.
[57] The evidence of Dr Ferris, a geophysicist for the Institute of Geological and Nuclear Sciences Ltd, concerning the date of an earthquake in January 1973 affecting the Wairarapa, was read by consent.
For the first and second defendants
[58] The witnesses for the first and second defendants fall into four categories:
• Family members:
Mrs A (the plaintiff’s mother), EA (her maternal aunt) and AA (her brother).
• Social workers and representatives of Catholic Social Services:
John Consedine (the current director), Peter McCormack (the former director), Mary McGreal, who was a social worker at Catholic Social Services from 1970 to 1976, Antonius Roest, a social worker there from 1972 to 1976, and Kitty McKinley, who worked as a volunteer at Catholic Social Services in 1975 and joined the staff full-time at the end of 1976. John Lambie was called to give expert evidence as to social work practice.
• Caregivers:
The Ss, the Ds, the Ms and Mrs W.
• Others accused of sexual abuse:
Mr L, supported by his wife, Mrs L.
For the third and fourth defendants
[59] The following witnesses gave evidence for the Sisters of Mercy:
• Sr Denise Fox, the current congregational leader of the Order in Wellington, explained the composition and nature of the third defendant, both at the time when the plaintiff was associated with them and currently.
• All the nuns named by the plaintiff who are still alive. With changes in practice over the years, some have reverted to using their Christian names. Others have retained their religious names.
The evidence of two of those nuns (Sr Denise O’Farrell and Sr Theodore Harrington) was taken before the Registrar in April 2004, in advance of trial and a videotape and transcripts of it were filed in Court. Their evidence concerned the orphanage years, as did that of Sr Ligouri and Sr S and Sr Justina. That of Sr Julian, Sr de Porres and Sr Patricia related to the plaintiff’s time at St Mary’s College. For ease of reference I shall call the nuns by the names by which the plaintiff knew them.
• Girls who attended St Joseph’s Orphanage and school between 1968 and
1973: Nicolla Nicolls, Eveleen Bon and Margaret Rangiwhetu.
• Joan Jenkins, a lay-teacher at St Joseph’s School between 1957 and 1987.
• Expert witnesses: Fr John O’Neill concerning practice in relation to matters like corporal punishment and provision of psychological services at Catholic schools and also concerning liturgical matters, Dr Dianne Bardsley, a language expert, and Dr Peter Blake, an ENT specialist.
Dr Marks
[60] Although, for practical purposes, Dr Marks was called by the third and fourth defendants, in accordance with an order made by Miller J, he was, in fact, the Court’s witness under s 100 of the Judicature Act 1908. He interviewed the plaintiff, in the presence of Dr Crawshaw, over three days in December 2004.
What they said
About the family
[61] It is undisputed that the plaintiff’s father, CA, was an alcoholic. Before their marriage ended Mrs A took out a prohibition order against him to prevent him going to hotels. She said that he had been violent towards her for years and that occasionally the children witnessed her or one of their siblings being hit.
[62] She confirmed that the marriage came to an end with the episode which the plaintiff remembered. Mrs A recalled that, on that particular day, Mr A came home in mid-afternoon and started drinking out of a half-gallon jar. He then tried to strangle her. The children were screaming and she ran outside. Neighbours called the Police. Mr A locked the doors and windows of the house so that she could not get in, put the children in the car, and drove away.
[63] She was both mentally and physically exhausted by her husband’s treatment of her and resolved not to return. She went to live with her mother in Upper Hutt and started work at the Reserve Bank there. After some months she got a flat on her own and arranged for KA and the plaintiff to be brought from the Whatman Home to St Joseph’s Orphanage so that they could be near to her.
[64] Mrs A met her current husband, Mr F, in 1969. They married in 1972. Their only child was born in 1974.
[65] When she was with Mr A, Mrs A was a full-time homemaker. She said that although the Carterton home was run down, she did her best to keep it clean. She was regarded as being a very good cook and went to considerable effort to dress
herself and her children well, making all their own clothes. Although there were times when there was little or even no money, and nothing to spend on luxuries such as going to the movies, she tried to create a family environment that was as enjoyable as it could be for the children.
[66] She was happy for the girls to go to the orphanage. She herself had been a pupil at St Joseph’s School and knew some of the older nuns who were still at the convent. She believed that the girls were well cared for. She said that in the interviews she had with Sr Denise O’Farrell, she was never told that anything was amiss. She used to meet the girls almost every other day, as she went back to work from lunch, either in the school grounds or at the convent gates. Then she would walk back with them and other girls, and sometimes a nun, to the school. She described her daughters as “happy, giggly, smiley facey”.
[67] Mrs A was also content with the involvement of Catholic Social Services in her children’s lives. She thought that the plaintiff had a good relationship with their staff; she never complained to her about them. She was enthusiastic about all her holidays and appeared happy at both the Ms and St Mary’s.
[68] EA, who is younger than Mrs A, said that she and her mother (the plaintiff’s grandmother) used to keep in contact with the children. The girls would go to their house in Upper Hutt once a month. Then, after she herself married in 1970, the plaintiff and LA would separately stay at her home. All of the A children came to her with their troubles over the years. The plaintiff had various gripes about places she had been staying, for example, about doing domestic chores and discipline, but there was nothing of concern.
St Joseph’s Orphanage and School
[69] St Joseph’s Orphanage was opened in late 1952. It was purpose built and set in spacious and attractive grounds. There was a swimming pool and hard court and lawn areas. The orphanage building was in the form of an “H”. On the right hand wing were two large dormitories with a total of eighty beds (the “pink” and the “blue” dormitories). At either end of each dormitory there was a cell for a nun to
sleep in. A corridor led from the dormitories to a large recreation room. Leading off the corridor were a sewing room and a laundry area on one side, and washrooms and toilets on the other. The left hand wing, parallel to the dormitory wing, housed the refectory and kitchen area at one end and, in the other, a playroom, community room, sick bay, two rooms variously referred to as an office and a parlour, another office and a main entrance hall. The chapel and a two-storied block of sisters’ rooms were separate.
[70] Between 1968 and 1973 the number of girls in the orphanage fluctuated from a high of 41 in October 1969 to a low of 18 in January 1973. The average was between 28 and 35. From 1972 onwards there was seldom more than 28 girls living there.
[71] The number of nuns living at the orphanage during that time varied between
12 and 15. Congregational records show when the nuns named by the plaintiff lived there:
• Sr Denise O’Farrell, sister in charge of the house 1968 to 1971;
• Sr A, orphanage only 1968 to 1972;
• Sr Ligouri, Principal St Joseph’s School 1968 to 1973;
• Sr Gerardine or Geraldine, teacher 1968 to 1969;
• Sr Theodore, teacher 1968 to 1970;
• Sr S, teacher 1970 to 1972;
• Sr Agnes Finucane, sister in charge of the house 1972 to 1973;
• Sr Paschal, teacher at the school from 1968 to 1973.
[72] With the exception of Sr S and Sr Agnes, the ages of the nuns ranged from 47 to 62. Sr S was in her mid 20s and Sr Agnes in her early 40s.
[73] Although the plaintiff named Sr Catherine as one of the nuns who abused her, she now accepts that their time at the orphanage did not coincide. Sr Catherine died in 1968.
[74] Sr A, Sr Gerardine and Sr Paschal have also died.
[75] Sr Agnes took over from Sr Denise O’Farrell as superior at the beginning of
1972.
[76] Daily life at the orphanage ran to a strict routine. The girls were woken at
7.00 am and had prayers, breakfast and completed chores before school. They returned to the orphanage for lunch, which, until 1972 or thereabouts, was the main meal of the day. After school they had afternoon tea, followed by playtime, bath- time, tea, and study (not necessarily in that order), and then bedtime. On special feast days they went to mass in the chapel before school. Otherwise they only attended mass on Sundays.
[77] At all times they were supervised (prefected) by nuns.
[78] All the sisters who taught at St Joseph’s School lived at the orphanage. Most had duties within the orphanage, as well as their teaching duties. For example, Sr A was in charge of the sewing room and responsible for the girls’ clothes, Sr Gerardine looked after their medical needs, and Sr Ligouri supervised study.
[79] There were further chores to be completed on Saturdays and that was the day for hair washing. On Sundays, after mass, some girls visited family members. There were also occasional organised outings arranged by community groups such as Rotary and Lions, which the girls remembered fondly. Some trips went as far afield as Picton. Local events included picnics, lolly scrambles, sports days and Christmas parties. At times nuns or priests took a girl or a small group outside the orphanage. The plaintiff remembers Sr Agnes taking them shopping and swimming. Ms Ford talked about going with a priest to the airport to farewell a local girl who was joining the Carmelite nuns. Others spoke of being taken to the movies by
Sr Denise O’Farrell and of Sr Gerardine taking girls to Masterton or Carterton to pick apples.
[80] LA generally endorsed her sister’s account of abuse meted out by the nuns at the orphanage.
[81] She arrived at St Joseph’s on 1 September 1968 and, apart from a year from December 1971 to December 1972, when she was with a foster family in Taita, remained there until December 1975. This means that she and the plaintiff were there together for approximately three and a half years, from 1968 to 1971 and from December 1972 until May 1973, when the plaintiff left to live with the Ms.
[82] LA agreed with the plaintiff that they were not allowed to have a relationship with each other and that there was a lack of love at the orphanage. She also alleges that she was physically, sexually, verbally and emotionally abused there and, as a result, has instituted her own proceedings against the same defendants. She said she was strapped virtually every day by one nun or another, but made specific mention of Sr S and Sr Paschal in that regard.
[83] She thought that Sr A did not like her or the plaintiff very much, possibly because she was irritated by their singing voices. She recalled the plaintiff being hit by Sr A with a yard stick ruler. She also remembered Sr Ligouri using the strap.
[84] She described Sr S as a “vindictive, nasty person”. She remembered her calling her a “naughty horrible child” and saying that she was punishing her to make her pray to God.
[85] She claimed Sr Agnes and other nuns used to force-feed her tripe and boiled cabbage and that Sr Paschal fed her sunlight soap for telling a dirty rhyme.
[86] She also recalled being sent to the pink or the blue dormitory as a form of punishment after running away, and being left there as long as the nuns saw fit. She said that this could be for several days, while they debated what to do with her. Sometimes they threatened to send her to the Police Station to be held. Other alleged
punishments included being made to smoke a whole packet of cigarettes after she had been caught smoking, and having her hair cut short.
[87] Although she acknowledged that some of the nuns were kind to her – Sr Barbara and Sr Theodore for example – LA could not remember receiving comfort, reassurance or kindness from any of the others. She felt that they deliberately tried to lower her self-esteem, that the nuns regularly yelled and screamed and verbally abused the girls, and that those children whose parents did not go to the orphanage often were picked on more than others.
[88] She agreed that the girls were often called by their numbers, not their names. Hers was 35. Like the plaintiff, she complained that no one sat down with her or wanted to listen to her. She needed to be told what was going on with her family, but this never happened; the people from Catholic Social Services did not talk about such things either.
[89] Two of LA’s claims went further than those of the plaintiff. First, there was her claim that exorcisms were carried out on her by Mr (then Father) McCormack, with Sr Denise O’Farrell and another priest present. She said that the first exorcism took place in the day room. Others were in the dormitory bedroom.
[90] LA did not claim to have been sexually abused by Mr McCormack. Her complaint against him was that, when she was nine or thereabouts, he asked her if she knew about the “birds and the bees” and if she had started having her periods. However, she did claim she was abused by other priests. She said that when she was an altar girl at mass she had to perform oral sex on them. The abuse happened in one of the side rooms of the chapel. She was also sexually abused in the dormitories when she was being held there in isolation. She claimed that at least four priests sexually abused her and that after one of the worst abusers died, she had to kiss his face as he lay in state in the chapel.
[91] She said that she learnt about sexual play at the orphanage as the girls used to play with each other sexually.
[92] Five of the plaintiff’s other witnesses also had bleak memories of their time at the orphanage and/or St Joseph’s School. Two of them, RH and Shirley Ford, lived there before her time.
[93] RH was admitted to the orphanage in April or May 1960 and departed in
December 1964.
[94] It was not a happy experience. Among her memories were:
• Being told not to cry, despite the fact that her mother had died (by suicide). She did, and was punished for it;
• Mental cruelty, especially threats that the girls would go to hell or purgatory if they did not go to church or do certain things;
• Being called words similar to “no hoper” and “loser”, although not those exact words;
• Being treated differently from the day pupils at school, including not having play lunch;
• Having different food from the nuns;
• Physical abuse: she was screamed at and smacked if she wet her pants;
and
• Sr Ligouri and Sr Gerardine had terrible tempers.
[95] Ms Ford and her five siblings were placed in care in 1960. She was sent to St Joseph’s in 1963 because her mother had been released from a psychiatric hospital and was living in Wellington. She remained there, attending the associated school until 1966.
[96] She described the orphanage as a wasteland – a barren, sterile, loveless, rigid place, lacking warmth, caring or nurturing. The prevailing atmosphere was of
intense religious fervour and fear: fear of doing wrong and being punished. The girls reacted by becoming quiet, docile, compliant and withdrawn.
[97] Other recollections were that:
• Sr Gerardine was extremely cruel and vicious. She was an ogre. She was the worst for administering the strap. Ms Ford was a bed-wetter and Sr Gerardine humiliated her, making her wash and hang out her sheets each day;
• Sr Ligouri was a distant figure;
• The food was barely adequate. The nuns had different meals and the girls were force-fed if they would not eat the food. For example, a girl who refused to drink the molasses they were given each week had her breakfast porridge brought out at each subsequent meal until she did, then she had to eat the porridge; and
• Sr Justina gave her piano lessons, which she enjoyed, but they were suddenly stopped on the basis that it would not be fair to the other girls for them to continue.
[98] Ms Ford said that, at best, the sisters were terribly misguided in inflicting on the girls what they thought was for their own good; at worst, their regime would have done the Gestapo proud.
[99] DS’s mother died November 1967. She was sent to St Joseph’s Orphanage in
March the following year, when she was six. She remained there until the end of
1972.
[100] It was a terrible experience for her. She claimed that the nuns were abusive. Both verbal and physical abuse was common. As a child she was a stutterer, but the nuns considered she was attention seeking and regularly strapped her on the back of her legs. This happened most days. She said that if a child was found to have been strapped at school, they were strapped again at the orphanage.
[101] She was also smacked and screamed at if she wet her pants or if her underpants were found to smell of urine when inspected.
[102] She was told she was useless, lazy, good for nothing and would never amount to much, that nobody loved her, and that she was a thief. She had no emotional support because her mother had committed suicide and that was a sin.
[103] Of the nuns she said:
• Sr Ligouri was a tyrant. She was always strapping and disciplining and making cutting, demeaning remarks. She was awful;
• She was frightened of Sr A.
[104] DS’s other relevant memories, for present purposes, were of:
• Being placed in isolation when she was about seven or eight after she stole some “Sparkles” from the supermarket. The Police were called and returned her to the orphanage. She was then put in isolation for two weeks and was not allowed to go home in the weekends for six weeks. She was also strapped;
• Mr McCormack visiting regularly. She had to sit on his knee. The meetings were held in the parlour (not the recreation room) and lasted about 10 minutes to half an hour. Sometimes she was with him on her own;
• LA rocking herself to sleep. The nuns would hear the noise and come and strap her. She was a very miserable child;
• The food was adequate. Once she was force-fed silverbeet. This took a couple of hours. It was never done when anyone else was around. The girls were made to wait until everyone had left the dining-room before being force-fed.
[105] Each of these three women regarded themselves as better off than the A girls as they had loving family members to visit during weekends.
[106] So too did GT, who was at the orphanage from September 1971, when she was eleven and a half, until December 1973. She also drew a distinction between those girls whose parents were paying for them to attend the orphanage, and those who were “charity cases”.
[107] Reading the evidence of the plaintiff and her witnesses made her recall Sr A and her straps and an incident when LA and the plaintiff were practising singing in the sewing room and they were struck from behind by Sr A. She carried a strap in her right pocket. GT never saw her carrying a stick.
[108] Other pertinent parts in her evidence were that:
• The food improved in 1972 after a change in cook. In 1971 it was stale and off. The bread and buns were never fresh. Main meals included tripe once or twice a month and they never had roast meat, junket, sago or steamed puddings;
• If you did not eat your meals, you were fed. “We had to eat it”, she said;
• The environment at the orphanage was cold and uncomfortable when Sr Denise O’Farrell was in charge. It changed when Sr Agnes became Superior. There was a lot more activity. It was a good place for some, although not for everyone. Sr Agnes was the person that she saw if she was in trouble; she mainly made her write lines;
• Most of the time Sr S was happy go lucky. She helped GT with her speech therapy and sometimes joined the girls in activities like games or dancing. Occasionally, however, she got angry and when she did her whole face looked like she was going to explode;
• The girls kept out of the way of Sr Ligouri;
• Once, when she went back to the blue dormitory during the day she saw nuns and a priest there.
[109] CH and MC attended St Joseph’s School from 1954 to 1959 and 1958 to
1960 respectively. Both thought that the orphanage girls were treated more harshly at the school than the day girls.
[110] CH described the nuns as merciless and intimidating and said that they publicly humiliated the children. She said that although not physically ill-treated, she was mentally and emotionally abused.
[111] MC spoke of her time in Sr Gerardine’s class. She said that she was an absolute tyrant. She preyed on those who were most vulnerable. She often used a leather strap and a pointed ruler. She constantly mocked, humiliated and belittled those in her care. She terrified the children with religious threats.
[112] The former orphanage girls who gave evidence on behalf of the third and fourth defendants painted a much more positive picture, as did the nuns themselves.
[113] Margaret Rangiwhetu (1967-1969 aged 11-14), Nicolla Nicolls (1968-1972) and Eveleen Bon (1971-1972) all lived at the orphanage for at least some of the same time as the plaintiff. While there they all had regular contact with at least one family member.
[114] Ms Rangiwhetu’s time at St Joseph’s School was very happy. While there was firm discipline, she never saw any students being strapped. She appreciates the social and educational foundations she received from the school.
[115] She denied that the sisters yelled or called the girls names, or isolated particular girls or prevented them from bonding with others. Of particular nuns she said:
• She had nothing but good words for Sr Gerardine. She was never terrified by her;
• Sr A could be strict; you couldn’t pussyfoot around with her. She did not remember her carrying a stick;
• Sr Denise O’Farrell was kind and loving, and very approachable. She would let Ms Rangiwhetu ramble on when she got teary;
• Sr Ligouri was a very quiet person, not a yeller. She was very approachable; she could be asked questions when she supervised study;
• Sr Paschal was a beautiful nun, gentle and quietly spoken.
[116] Ms Rangiwhetu had no concerns about the food. She did not recall seeing anyone denied food. Her memory was of good food, decent sized helpings and sometimes seconds. There were also special treats like giant scones with cheese on Saturday.
[117] She agreed that girls were reprimanded if they stepped out of line and recalled being scolded if she did something wrong or used naughty words, but said that it was a rare event for someone to receive the strap. Once she got the strap, but more often she was asked to reflect on what she had done.
[118] She did not recall being threatened with hell or purgatory. She was more concerned that Sr Denise O’Farrell would tell her mother, as then she would really have been in trouble.
[119] Nicolla Nicolls’ memories of her time at St Joseph’s were supported by letters, reports and other records which her mother kept.
[120] Ms Nicolls disputed the allegations of abuse. She denied that the girls were referred to by numbers or that anyone was abused in any kind of systematic way. Far from being tense, she remembered a loving atmosphere.
[121] She agreed that physical punishment was administered by
Sr Denise O’Farrell, using a leather strap, but she did not think it was harsh – or, if it
was, she did not see it. She also accepted that Sr A could have carried a stick. She described her as “not the warmest human being in the world”.
[122] She remembered seeing Mr McCormack a couple of times in the room off
Sr Denise O’Farrell’s office. Sr Denise was always present when that happened.
[123] Generally she thought the food was good, but confirmed that, on occasions, food she did not like was served up three times until she ate it.
[124] Eveleen Bon, like the A girls, came from a home where her father had problems with alcohol and there was domestic violence. She was relieved to be somewhere stable, with clear routines and a good standard of basic care. She thought it good to be with other girls from similar backgrounds, but acknowledged that sometimes they were picked on by other children at school and that some hated being there. In her experience, if a girl was having a hard time she could let the nuns know and they would listen to her. She knew the rules and thought the discipline was fair. Ms Bon said:
It was not a touchy feely sort of place and the nuns were quite clear that they were caregivers not mothers.
[125] She recalled a daily assembly in the playroom before dinner at which girls would be disciplined if they had broken the rules. This might consist of a verbal reprimand or a strap to the hand. She did not remember nuns losing control or calling girls losers or sissies. Rather, these were the kinds of things the girls would say to each other.
[126] In her view most of the nuns were fair. Sr A was the only exception. If someone interrupted while she was brushing a girl’s hair, they would be given a whack with the hairbrush. After the girls complained she refrained from doing this while being watched.
[127] Ms Bon remembered Sr S as “a very sporty, vibrant, sprightly younger nun” who would help with musical productions and administer discipline from time to time. She had no memory of her screaming at people and “going on at them”.
[128] Under cross-examination Ms Bon remembered that Sr S was the nun responsible for strapping, usually administering one strap, but sometimes more, and that Sr A would use a ruler, which she sometimes carried. Discipline was normally administered in public, in front of all the girls.
[129] She remembered girls being told that the Police might be involved if they were behaving badly and that the Police were called after she was involved in a shoplifting incident. By way of punishment she had bread and water for dinner.
[130] She recalled all the A girls. She described LA as a rebel: she seemed angry, feisty, stocky, a kicker and had a foul mouth. By comparison, the plaintiff was calm, although sad a lot of the time. She was Ms Bon’s assigned buddy. She did not have much to say, but would sometimes talk fondly about her mother.
[131] In answer to the plaintiff’s allegations, she remembered plenty of food, did not remember being called by her number, disagreed that they only had one set of clothes and that clothes given to them would be taken away. She agreed that there was a fair amount of religion, but denied that the nuns threatened them with hellfire and damnation.
[132] Her only memory of males going anywhere near the dormitories were of fathers and brothers on visiting days. The only part of the orphanage building she remembers priests being in was the dining-room.
[133] The nuns who gave evidence painted a similar picture of a stern, but fair and happy environment. They uniformly denied using physical force to discipline a child at the orphanage, or of seeing other nuns doing so.
[134] The following passage from Sr Denise O’Farrell’s evidence is typical of that given by the nuns concerning discipline:
I never smacked the children. I always wanted to think they could come to me if necessary. If children came from broken homes, then it was a sad fact of life that often they would blame the nuns for the fact that they were in the orphanage and that did not make them easy. On occasion I found it necessary to punish the children but I never used physical force. My usual form of punishment was to ground children ... other forms of punishment
would involve telling the children that they could not go for a swim in the orphanage pool, play games for a period. In other words, I did nothing more than what parents do to their children all the time when they are disobedient.
...
[135] Sister Agnes’ evidence was to similar effect. She said:
I never witnessed A being verbally abused, harassed, harangued or screamed at by any nun. I certainly did not do so myself. Of course, in the course of daily life certain sisters may have either raised their voice to or reprimanded A to correct her. The girls were constantly in a group so, in order to be heard, nuns would occasionally have to raise their voices above theirs. It was never raised to order individual girls to do things. I do not recall having to discipline A directly in my capacity as superior.
[136] Sr S denied beating the plaintiff about her head or injuring her ear, as claimed. The only time that she can remember ever touching a child was an incident when 10 of the under eight year olds repeatedly got out of bed after they had been told to settle down. On the third occasion that she found them, she smacked each of them with her hand on their pyjama clad bottom.
[137] She agreed that if a child had been naughty she may have told her that she was “wicked”, “selfish”, or “ungrateful”. She may also have threatened her with gaol, but she disputed using the other words alleged.
[138] Sr Ligouri remembered the school hall incident about which the plaintiff complained. She recalled allowing her to use the hall on a previous occasion to prepare for a play and reprimanding her when later she saw her using it again without permission, but denied ever strapping her. She also denied strapping DS or strapping any of the children at the orphanage, rather than at school.
[139] More generally, she said that corporal punishment was administered at St Joseph’s in the 1960s and 70s, just as it was in other Catholic and State primary schools in New Zealand, and this was confirmed by Fr O’Neill. Teachers used the strap to punish acts of disobedience, for example, playground bullying. But more often than not a child who transgressed would be verbally reprimanded. There were no specific rules on corporal punishment and how and when the strap was to be used. It was a matter of judgment for the individual teacher. In the plaintiff’s time all staff
at St Joseph’s School had a strap available to them. She kept hers (a leather strap like a barber’s strop) in her office. She did not usually carry it about with her and did not recall other teachers doing so either.
[140] Although she did not regard herself as a strict teacher, she was not surprised that others regarded her as such. While she did not accept that she had a terrible temper or was nasty, she acknowledged that sometimes when she corrected children about their lessons, she would have come across somewhat sharply if she felt it warranted. She denied that she would have used the term “loser”, as it was never part of her vocabulary.
[141] Sr Justina, who had left the orphanage by the time the plaintiff arrived, agreed that Sr Ligouri was strict with the children but said that she was interested in their welfare and wanted them to achieve their potential. She also acknowledged that a child might have thought Sr Gerardine sarcastic. She did not remember the strap being used routinely at the orphanage, although acknowledged that it was used occasionally, for a serious “infraction”. She did not carry a strap around with her, and did not remember others doing so.
[142] Mrs Jenkins agreed that most discipline was in the hands of the classroom teacher. In her 30 years as a teacher at St Joseph’s School she never heard or saw anything to suggest that children were being excessively punished.
[143] The nuns’ general recollection was that the plaintiff was a very nice child, who, although sometimes a little sad or withdrawn, never caused any problems.
[144] Sr Theodore, who taught her in standard 3 (1970), described her as
an average child ... trying very hard in her classes and ... very well behaved.
[145] The nuns uniformly denied any emotional abuse. Those who were asked all said that they ate the same food as the girls, that it was wholesome and that there was plenty of it, although they did acknowledge that there was no room for fussy eaters.
[146] They also denied the allegations of lack of privacy and enforced uniformity. For example, while they acknowledged that, for administrative convenience, the girls’ school uniforms and similar clothing was numbered, they said the girls’ own clothing was not. And they emphatically denied that this clothing was ever taken from the girls, or that they were known by their laundry numbers. They insisted that Christian names were used.
[147] They accepted that outside help, in the form of counselling or other assistance to help a child deal with their family situation, was never sought. Sr Denise O’Farrell, for one, did not think it necessary.
[148] Nor were psychological services for difficult children readily available.
[149] Mrs Jenkins said that to the extent that help was required, the school used to rely on the local parish priest, who regularly visited the school. Sometimes children, particularly slow learners, were referred to her. She thought that that was probably because, from her experience as a mother, she was a little more understanding or tolerant of those children than the nuns.
Catholic Social Services’ involvement during the St Joseph’s years
[150] Catholic Social Services was developed as a separate arm of the Catholic Church during the 1950s. Peter McCormack was appointed director of the agency in 1968 and remained in that position until he went overseas in mid 1977, although the amount of individual social work that he was involved in declined after
1971, when he became a parish priest.
[151] Mr McCormack’s evidence was that the vast majority of children in children’s homes in the 1960s and 70s were from socially dysfunctional families; there were not many orphans. The prevailing approach of the agency, over the years that he was in charge, was to try to put children into foster homes where they could have a normal family life, rather than living in an institution. Alternatively, they tried to get them back to their parents as soon as possible. But often the parents were set on having a new life, and did not want them.
[152] Part of the work of Catholic Social Services at this time was the placement of children in family homes during holiday periods. Invariably the families providing these homes were members of a Catholic parish within the archdiocese. Their name would be forwarded to Catholic Social Services by the parish priest. They were volunteers. They were not paid. Before a child was placed with a family, Catholic Social Services would endeavour to carry out an independent check of the home. Sometimes this involved a social worker from the agency physically checking the placement. Mrs McGreal’s practice was to telephone and speak with the mother of the family. On occasions Mr McCormack sought references from people. He said that everyone was vetted by someone other than the local parish priest, although the final recommendation always came from him.
[153] At the end of the placement, the social worker would take the opportunity, when picking up the child and returning them to school, to find out how things had gone and whether there had been any problems.
[154] This type of individual contact was not possible once a child was back at an institution like St Joseph’s. He said that the nuns provided bed and board and some comfort and spiritual advice, but that was all. There was little individual counselling and indeed no formal counselling, although referrals could be made to the psychological service of the Ministry of Education, and such a referral was made for LA.
[155] Mr McCormack said that during the time that the plaintiff lived there, he used to visit the orphanage every two or three months. In the course of doing so he would talk to the nuns about the girls. He would also talk with them. Any such discussion with a girl would take place in the large room used as a playroom and gym. His recollection was that there was always a nun present when he spoke to any girl, and that the nuns were very protective.
[156] He disputed that he ever saw DS on her own and was adamant that he did not have regular meetings for up to half an hour with any one girl.
[157] In the early years after the A children came into the care of Catholic Social Services, in line with his view that children were better placed with their parents, he endeavoured to persuade their mother to have them back, and, to that end, offered to help with food and clothing and even to provide cheap accommodation. But to no avail. Mrs A felt that they had changed for the better. She did not want to go back and re-expose them to Mr A’s violence. Mr McCormack’s perception was that after she found a new partner she was not prepared to let the children be part of her life, as Mr F was not keen on having them.
[158] On 21 August 1970 Mrs A was granted a decree nisi in divorce from Mr A. During the following year there was an ongoing dispute between the parents concerning custody. In that context, on 12 February 1971, Mr McCormack sent a detailed report on the seven A children to the Masterton District Child Welfare Officer. He said:
1. The care of the A children has been the concern of this agency for some time; their future and the uncertainty of parental affection and concern also raises a question of considerable importance.
...
[159] Then, having explained how each of the children came into the care of the agency, he commented in relation to the plaintiff:
A is in Std. 4 at St. Josephs Convent School and like her sisters, lives at St. Josephs Girls Home. Of all the children who desperately need attention and recognition from the parents, it would seem that A possesses this need in the extreme. She literally craves affection and will do anything to obtain it. In the setting of St. Josephs this does make her seem somewhat a behaviour problem.
Apart from this feature, it is anticipated that A will respond as she grows a little older with some of the inevitable consequences of the separation that her parents have created. In the last few years, her holidays have been spent with Mr and Mrs C at Wainuiomata, who do not find her in any way difficult and are always delighted to have her return to them. It would seem therefore that given the minimum of security, understanding and attention with as much attention as can come from this sort of holiday home, A will respond.
[160] And then he commented on the parents, and the ongoing role of Catholic
Social Services, saying:
4. Parental Contact:-
Probably the most disturbing feature of this family problem is the considerable disinterest shown by the parents. While it may be true to say that Mrs A has indicated over recent months a little more concern and attention than she did previously, I feel obliged to point out that it is only through my constant demands and pressures for her to do so.
With regards to Mr A I have seen only a disturbing influence which the children could have well been without. Apart from a very recent contact in the last few days, Mr A has given no evidence whatsoever of the true nature of his concern for his children in any tangible way. There have been no letters, visits, birthdays or Christmases remembered for as long as these children have been in my care. Occasionally, to be fair to him, he has phoned Sunnybank or St. Josephs, and at these times, has been under the influence of alcohol. These telephone calls have been both confusing and disturbing for the children receiving them. Elaborate promises have been made and never kept and the number of times that the boys, especially at Sunnybank, have awaited the arrival of their father, leaves me no doubt as to his total inadequate parental nature.
With regards to Mrs A unfortunately a similar but not quite so callous situation has developed. Mrs A’s problems would seem to me, to stem from her own inadequacies and needs. It is my impression that these children have grown up around about her, for she was married when she was particularly young and she has never really come to grips with the fact that she is their mother.
Personally, I am not inclined to blame Mrs A too much and with the more regular discussions I have had with her over the last two years, it would seem to me that despite the circumstances of her present involvement, she does show the type and quantity of emotional concern of which she is capable. Without doubt, this is far too limited for the emotionally hungry seven children she has brought into this world.
Knowledge of her present situation will no doubt be made through other avenues and I feel that at this stage, that despite the social consequences, she alone may be able to provide limited and occasional affection and home surroundings to the children in ones and two’s [sic].
5. The Economic Situation: -
I must make it quite clear in this report that Mr A has never at any stage contributed to my knowledge, any money whatsoever for the upkeep of his children. It might be true to say that in the physical and material order, he has completely neglected them. After many months of constant persuasion, the Family Benefit Books were eventually made over to Catholic Social Services. This is the only contribution that Mrs A makes, except that it might be stated in fairness to her, that she has in recent years, when occasion has demanded it, bought incidental clothing for the children.
If I was to calculate the total cost to Catholic Social Services these children have been since coming to our care, I am sure the figure would reach some thousands of dollars. I am not particularly worried about the financial consequences, but I do indicate it as a valid type of the neglect which Mr A in particular and Mrs A in her own way, have been guilty of.
I would hope that some enquiries are made into the capacity and adequacy of both of these parents before any judgement is made concerning the future care of the seven children. From a personal point of view it would seem to me that Mr A has not exercised suitable parental interest and probably, I feel there is little likelihood, that he will do so in the future.
Mrs A is a victim of her own circumstances yet I feel there is some little hope that she might effect some care in a limited way for her children.
Looking back over the last two years and more recently for some of the younger A children, we have felt that the security and affection which has been given has helped a great deal in the general settling down of the members of this family.
The responsibility to accept these children for care was made simply on the basis that they needed adequate and constant assurance, that there was somebody in the community to look after them and their needs. Sub- consciously I am quite sure that all the A children realise the inability of both parents to really exercise their proper parental function.
Catholic Social Services would be happy to continue exercising care for these children until such time as they are able to act responsibly for themselves. It would be appropriate that some form of legal maintenance might be entered into if this was to be the case. It seems unlikely that we will ever recover maintenance from Mr A though for the future, if Mrs A was to retain custody, we would be willing to work with her and in fact counsel her to have more intimate and personal involvement with her children.
[161] The Child Welfare Officer included and expanded upon this information in her report to the Registrar of the Supreme Court of 2 March 1971. She said:
Background History:
It appears that this marriage was unstable and unsatisfactory from the outset. Mr and Mrs A were married when Mrs A found that she was pregnant with RA. Mrs A claims that she was unwilling to marry, but that at the time she felt she had no alternative.
Between 1957 and 1965 this couple are said to have shifted 14 times. They then spent 4 years, until the marriage broke up, living in a house in Carterton provided by Mr A’s parents. During those four years there were frequent arguments followed by short separations. Mrs A contacted this office on several occasions, complaining of her husband’s excessive drinking habits, lack of finance and on one occasion, the family’s lack of food. It was noticeable that in spite of her complaints of lack of finance, Mrs A was usually well dressed.
The couple eventually separated in 1967 and the children were placed in various Homes.
...
Mr A: Aged 41 years.
Mr A is the adopted son of a Lebonese [sic] couple. He appears to have been over-indulged in his youth and has never been encouraged to face his responsibilities. The cultural .... pattern of life seems to favour the male in the household, and to justify any male pleasures at the wife’s expense. Mr and Mrs A (Senior) have frequently come to their son’s aid when he has been in financial difficulties.
Early last year Mr A served a term of imprisonment for non-payment of fines. He is also said to have been imprisoned on several occasions for nonpayment of maintenance. Although he denies this, I understand that Mr A frequents the local Hotels.
Mr A claims to “love” his children, but certainly does not convey this impression by his actions. I feel that this man is more interested in having his children with him to uphold the A name, rather than any real affection or consideration for them.
Should Mr A gain custody of his children he intends to bring them to his mother’s house in Carterton. She would supervise them during the day.
... Finance:
... I do not think that Mr A works. I have frequently seen him wandering in the streets during the day.
...
Mrs A: AGED: 31 years
Mrs A is at present working [for a bank in] Upper Hutt. She earns approximately $49.00 per week. This woman has formed a defacto relationship with Mr F aged 44 years. He is a married man with one dependant child. ...
This couple live in a luxuriously furnished home which they are at present renting.
Mrs A openly admits that she would be unable to manage the children, and has difficulty in controlling them, particularly PA and AA. She claims that she did not want 7 children and does not see why she should take financial responsibility for them if her husband does not do the same. On occasions she has supplied some clothing for them.
Mrs A appears to have little affection for her children, but does take them out for the occasional outings. She does plan to have them for some weekends in the future. It seems that this attitude has only been brought about by constant pressure from Reverend Father McCormack.
Should Mrs A gain custody of these children, she intends to continue with the present arrangements, i.e. that the children remain in the care of the Catholic Social Services.
I can only say in conclusion, that I have grave reservations over either parents ability to give these seven children the care and affection that they so desperately require.
...
[162] In the event, when the decree nisi was made absolute on 24 November 1971, Beattie J made an order giving the custody of all seven children to Mrs A, reserving reasonable access to Mr A, who was ordered to pay Mrs A maintenance of $4 per week for each child.
[163] Mr McCormack said that he took a particular interest in the A children after it became clear that they were to be left in homes on a long-term basis and remembered talking with the plaintiff, and possibly also both her sister, and their inevitable questions about when they would go back to their parents. However, he categorically denied any sexual impropriety with either the plaintiff or her sister, KA (which the plaintiff also hinted at, but did not present any evidence to substantiate). He denied being in the front room alone with the plaintiff or sexually abusing her. He said that the alleged incident did not happen. He also denied that he let her go to families where she was sexually abused. He was not aware that she was abused by caregivers and regards her allegations against them as bizarre.
[164] In the same vein, he dismissed the allegations made by the plaintiff during sessions with Dr Marks to the effect that he had arranged for the A children to go into care because he wanted to sleep with their mother, and LA’s allegations about exorcisms. He said that he met Mrs A no more than five or six times and that all his dealings with her were entirely professional. Secondly, he had never performed an exorcism in his life, nor was he aware of any exorcism being performed in the Wellington Diocese.
[165] The plaintiff’s holiday placement in Wainuiomata, referred to in Mr McCormack’s report to the Child Welfare Officer, at [159] above, was arranged by Mrs W directly with the nuns at St Joseph’s. It seems that Catholic Social Services only became involved in arranging placements for her in 1971, after the Ws moved to Rotorua. Certainly Mrs McGreal only became the plaintiff’s social worker in late 1971 or early 1972, which is when her file with Catholic
Social Services begins. Mrs McGreal had earlier arranged a holiday placement for LA with a family in Taita, which led to a foster placement during 1972. She did not make arrangements for the A boys. That was the responsibility of Mr McCormack and later, Anton Roest.
[166] After all these years, Mrs McGreal cannot remember whether, when she was asked to keep a weather eye on the plaintiff, she travelled out to St Joseph’s Orphanage to meet her, or whether she waited for an issue to arise. She thought that she probably saw the children at St Joseph’s as a group.
[167] What is clear is that she arranged for the plaintiff and LA to stay with the Ss over the 1972/1973 Christmas holiday period and then, at the plaintiff’s request, arranged what, it was hoped, would be a long-term foster placement for her with the Ms. Mrs McGreal’s note recording this move, and the process leading up to it, is dated 4 May 1973. It states:
A has not been very happy this year at St. Josephs – as a result of social friction within her peer group. There are four older girls, Form II, and there has been constant shifting of friendships, within the group which has resulted in A becoming unsettled and depressed. She was also involved with two of this older group in petty shop-lifting, not through any real desire to steal, but mainly to gain social acceptance by the other two girls involved. A was the only one of the three to show sorrow and guilt for what she had done, which would indicate a social conscience. All were punished equally.
Over a period of two months, I was involved in group counselling for sex instruction of these older girls, and as a result formed a relationship with A. She asked to speak to me privately at the end of one of these group sessions, and begged me to find her a foster home, threatening to run away if I did not do so. She also phoned me on one occasion again saying she would run away, and I spent some time counselling her on the phone, and persuading her to stay, and trust me to take some action.
The decision was therefore made to find a foster home, for three reasons:-
1.A has been at St. Josephs for too long a period, with possible risk of institutionalisation.
2.To break the influence of the other girls in the group, with A being led into further trouble, in order to gain approval by her peers.
3.Hopefully, that she may be retained in the foster home through her career at secondary school, starting Feb. 1974.
She left St. Josephs on 4 May 1973, at the start of the holidays, and has moved into a foster placement with:
Mr & Mrs M,
This foster home is on a trial basis until the end of 1973 to see how the Ms and A relate to each other. Probable day school – St Mary’s, 1974.
Placement with the Ms
[168] Initially the placement seemed to be working well. In July 1973
Mrs McGreal recorded in some detail the problems that the plaintiff was having leaving one group of friends and making new ones at her new school, saying:
We talked about this in our interview, and the difficulties of moving into a new school when friendships are already established, and it is hoped that she may be able to put into action some of the aspects we talked about. ...
[169] Mrs McGreal then went on to record her views about the capable way in which the foster parents were handling the initial problems, including the rules that they had established and the steps that they had taken to assist the plaintiff to settle.
[170] Unfortunately, however, at the beginning of the August holidays there was a crisis in the relationship between the plaintiff and the Ms which could not be resolved. Mrs McGreal noted that the plaintiff reacted to discipline which Mr M imposed following his return from an overseas trip. She created a scene and demanded to see her.
• Whether the plaintiff is, in fact, covered for pre 1974 abuse will depend upon the date she received “treatment” for that abuse.
[512] While similar provisions existed under the 1998 legislation, the first and second defendants acknowledge that the position pre July 1999 was different.
[513] In both S v Attorney-General and W v Attorney-General the abuse in issue occurred prior to the commencement of the first Accident Compensation Act.
[514] In both cases, the Court of Appeal held that there was no indication that the
1992 Act was intended to provide retrospective cover for mental injury or nervous shock stemming from acts that occurred before the accident compensation scheme even existed. Therefore, the compensatory bar did not apply in respect of such mental injury.
[515] Accordingly, the first and second defendants submit that the plaintiff is covered under both the current legislation and the 1998 Act (by virtue of ss 40 and
44) in respect of mental injury arising from events occurring prior to 1974. However, they accept that cover will not be provided for pre-1974 injuries if treatment was received for the mental injury prior to 1 July 1999, which is the date that the 1998 Act superseded the 1992 Act. They accept, on the basis of S and W, that such coverage is not available in respect of the 1992 Act.
[516] Nor do they believe those conclusions are affected at all by the amendments to the present Act, which came into force in May 2005, and in particular, s 21A, which is relied on by the plaintiff.
[517] That section states:
21A Cover under Accident Rehabilitation and Compensation
Insurance Act 1992 for mental injury caused by certain criminal acts
(1) This section applies to persons who suffered personal injury that is mental or nervous shock suffered as an outcome of any act of any other person, which act—
(a) was performed on, with, or in relation to the claimant (but not on, with, or in relation to any other person); and
(b) was within the description of any offence listed in the Schedule 1 of the Accident Rehabilitation and Compensation Insurance Act 1992 (the 1992 Act); and
(c) was performed before 1 July 1992 (including before 1 April
1974) and was performed—
(i) in New Zealand; or
(ii) outside New Zealand, and the claimant was ordinarily resident in New Zealand within the meaning of the 1992 Act when the act was actually performed.
(2) For the purpose of subsection (1),—
(a) the personal injury is deemed to have been suffered on the date of the first treatment that the claimant received for that personal injury as that personal injury; and
(b) that first treatment must have been received on or after
1 July 1992 and before 1 July 1999; and
(c) the treatment must have been of a kind for which the
Corporation was required or permitted to make payments either
directly under regulations made under the 1992 Act or under an agreement or contract or arrangement under section 29A of the 1992
Act, irrespective of whether or not it made any payment in the
particular case.
(3) For the purposes of subsection (1), it is irrelevant—
(a) that no person can be, or has been, charged with or convicted of the offence; or
(b) that the alleged offender is incapable of forming criminal intent; or
(c) whether or not the person who suffered the personal injury was ordinarily resident in New Zealand within the meaning of the
1992 Act when the personal injury is deemed to have been suffered.
(4) Persons to whom this section applies are deemed to have had cover under the 1992 Act for the personal injury described in subsection (1) ...
...
(5) However, the following provisions apply to civil proceedings brought before or after the commencement of this section seeking general damages for mental or nervous shock suffered by a person as an outcome of any act described in subsection (1) (the proceedings):
(a) if the plaintiff received judgment in the proceedings, in his or her favour, before the commencement of this section, the plaintiff does not have cover under this section for the injury or injuries to which the proceedings relate:
(b) if the proceedings were filed, but not heard, before the date of introduction of the Injury Prevention, Rehabilitation, and Compensation Amendment Act (No 2) 2005, nothing in this section prevents the proceedings from being heard or prevents a court from awarding the plaintiff general damages for the mental or nervous shock:
(c) if the plaintiff continues the proceedings, the plaintiff must declare to the court any payments and entitlements received from the Corporation for the personal injury for which damages are sought, and the court must take those payments and entitlements into account in awarding the plaintiff any damages:
(d) on the date judgment is given in the proceedings, the plaintiff—
(i) does not have cover under this section for the injury or injuries to which the proceedings relate; and
(ii) must advise the Corporation of the judgment:
(e) if the plaintiff loses cover by virtue of paragraph (a) or paragraph (d), the Corporation may not recover any part of an
amount that is deemed by subsection (4)(a) to be an entitlement paid to the plaintiff under the 1992 Act.
[518] While the first and second defendants accept that s 21A(5) leaves the door open to the plaintiff to pursue these proceedings in respect of mental injuries arising from acts occurring prior to 1974, if treatment for them was initiated prior to July 1999, they submit that this does not affect cover in respect of abuse occurring post 1 April 1974, as this has always been covered.
[519] The plaintiff takes a wider view of s 21A.
[520] Ms Cull submitted that:
all of the previous acts and arguments in relation to the previous acts have been superseded by ... s 21A.
[521] She argued that:
• Section 21A(5) preserves the right to seek general damages for mental or nervous shock where proceedings were filed but not heard at the time at which this amendment came into force.
• Section 21A(5) applies to the plaintiff.
• Subsection (5) preserves the right to seek compensatory damages in respect of mental or nervous shock suffered by a person as an outcome of any act described in subs (1).
• Subsection (1) only refers to acts prior to 1992. Subsection (1) itself does not say anything about the time of treatment.
• Accordingly, s 21A preserves the right to sue for mental or nervous shock suffered as a result of any act occurring before July 1992, including the period pre 1 April 1974.
[522] This argument clearly overlooks the plain language and purpose of s 21A. Subsection (5), while making direct reference only to subs (1), is clearly concerned
with mental injury for the purposes of the compensatory scheme, not solely the criminal acts giving rise to that injury. Although subs (5) only refers back to subs (1), the latter is clearly qualified by, and must be read in conjunction with, subs (2). Subsection (2) provides that:
for the purposes of subsection (1) … the personal injury is deemed to have been suffered on the date of the first treatment that the claimant received for that personal injury as that personal injury.
[523] Moreover, subs (1) is further qualified by the requirement in subs (2) that the first treatment must have been received on or after 1 July 1992 and before 1 July
1999. It is impossible to look at subs (1) in isolation. The term “mental or nervous shock” as described in subs (1) can have no meaning divorced from its context as set out in the section as a whole.
[524] Therefore, the effect of s 21A(5) is not, as the plaintiff contends, to preserve a right to sue in respect of all mental injuries stemming from acts occurring prior to July 1992. It is the date of the “injury” which is crucial, not the date of the criminal act.
[525] The express purpose of s 21A, as set out in the explanatory note to the Injury Prevention, Rehabilitation and Compensation Amendment Bill (No 3), headed “ACC cover for sexual abuse claimants for whom sexual abuse occurred before 1974”, was to address the lacuna in coverage for mental injuries arising from historical abuse under the 1992 Act. However, in the interests of fairness, Parliament left a circumscribed exception allowing for parties to continue to seek damages when they had already filed proceedings on the assumption that they would not be statute barred under the 1992 Act. Section 21A does not, however, create some new general rule preserving an overarching right to compensatory damages for mental injury.
[526] In the alternative, Ms Cull argued that as, under the 2001 Act:
• The date upon which a person suffered personal injury is the date upon which the first treatment was received;
and
• Treatment includes:
i) the giving of treatment and
ii) a diagnosis of a person’s medical condition: s 33(1)(a) and (b);
and
• The plaintiff first received treatment for nervous shock in 1987, when she was diagnosed with post traumatic stress disorder and thereby began treatment for her mental injury claims,
therefore
• The diagnosis cannot fall within the ambit of the 1998 or 2001 Acts;
and, as such,
• Section 21A(5)(b) preserves her right to sue for compensatory damages. [527] Although the reliance upon the definition of treatment in s 33(1) is clearly
incorrect (that section defines “treatment injury” as injury incurred in the course of a particular treatment), I accept that the argument is not affected if the definition in s 6 of the Act, which includes “physical” and “cognitive rehabilitation”, is used.
[528] Ms Cull submitted that it is artificial to seek to distinguish separate mental injuries arising from separate acts of sexual abuse. Rather, the mental injury should be treated as a whole. In practice, compensation, if granted, would be for “the damage that has occurred as a result of the act for [sic] acts which fall within the First Schedule”, without purporting to itemise or separate compensation for each different act of abuse.
[529] I do not accept that argument. Compensation can only be awarded on the basis of established criminal acts giving rise to mental injuries suffered during the statutory timeframe.
[530] Section 21 provides coverage for mental injuries caused by an act performed by another person. The phrase “another person” indicates that it specifically contemplates a particular, identifiable act, rather that some amorphous harm. While there will, no doubt, be situations where a claimant has suffered numerous incidents of sexual abuse, or abuse from more than one perpetrator, it is not sufficient for them to cite one such act, after which all subsequent acts of a like nature necessarily qualify, without further consideration.
[531] Moreover, the criminal act in question must be one falling within those listed in Schedule 3. Although coverage under s 21 is not dependent upon a conviction or criminal proof of one of the offences outlined in Schedule 3, the Court is nonetheless required to be satisfied on the balance of probabilities that such an act did occur. In each instance, the basic elements of the offence must be made out. Accordingly, in order to qualify in respect of mental injury in these circumstances, a claimant must be able to point to identifiable acts committed by discrete individuals.
[532] While I accept that it may appear contrived to attempt to attribute “parts” of a mental injury or psychiatric condition to their respective causes, and while a more holistic approach could well be justified at the financial assessment stage, it would seem to be completely contrary to the clear intent of Parliament, in listing specific sexual crimes in Schedule 3, to accept that mental injury can be defined in some global manner, without reference to the relevant qualifying acts.
[533] In many cases, this will not be an issue. Where a claimant has suffered from sexual abuse over a long period of time, even at the hands of numerous perpetrators, it may well be that treatment for this ongoing abuse will be sought simultaneously, therefore all the criminal acts will form part of the same mental injury for the purposes of coverage. However, where, as here, treatment was sought (at different points in time) in relation to distinct and separate criminal acts, the issue of coverage in respect of mental injury must be assessed at each distinct stage, in light of the relevant legislative provisions in operation at that time. Qualification for cover can hardly be determined in advance, in relation to abuse which has not yet been disclosed.
[534] There is also another practical difficulty with the plaintiff’s argument in relation to Post Traumatic Stress Disorder. The exemption in s 21A only relates to mental injury arising as a result of certain criminal acts. Although Post Traumatic Stress Disorder could constitute a form of mental injury as defined in s 27, in order to qualify as a mental injury for the purposes of the compensatory scheme relating to criminal acts, and hence attract the exemption under s 21A, the injury needs to be specifically linked to one of the criminal offences listed in the relevant Act. At the time the diagnosis of Post Traumatic Stress Disorder was made in this case, the primary focus of the plaintiff’s counselling was on parenting issues and crisis management. Although some mention was made at that time of her sexual abuse, the treatment was not “for” the sexual abuse in any specific sense; it was for parenting issues. This distinction is critical, given that, for the purposes of s 21A (in line with the parallel requirement in s 36 of the 2001 Act and s 44 of the 1998 Act) the treatment must be “treatment for that mental injury as that mental injury” – in other words, in respect of the mental injury, which has arisen as a result of the specified criminal act.
[535] Accordingly, the mental injury cannot have arisen at that stage. Therefore, the plaintiff’s contention that all mental injury thereafter could also be exempt “on the back of” this initial mental injury must necessarily fail. Moreover, if the treatment in 1987 was, in fact, in relation to mental injury arising from sexual acts, the timing of this treatment would fall outside the period for which s 21A preserves the right to seek compensation: s 21A(2)(b).
[536] Finally, the plaintiff suggested that the first and second defendants have erred in their overall approach to this defence, given that they have overlooked s 359 of the
2001 Act, which states:
359 Injuries suffered before 1 April 1974
(1) This Act does not confer cover in relation to an injury suffered before 1 April 1974.
(2) Subsection (1) applies subject to section 30(6) and (7).
[537] But this submission, in turn, overlooks the use of the word “suffered”. “Suffer” is specifically defined in the interpretation section (s 6) of the 2001 Act.
That definition states that in the context of mental injury, the meaning of “suffer” is to be read in conjunction with s 36 and cl 55 of Schedule 1 of the Act. Section 36 specifically delineates how the date upon which a person is to be regarded as suffering a mental injury is to be calculated. As already noted, that section provides that a person shall be deemed to suffer a mental injury for the purposes of s 21 from the date on which that person first receives treatment for that mental injury as that mental injury. This is entirely consistent with s 359. So long as the treatment sought in respect of the mental injury occurred after 1 April 1974, it will prima facie not be excluded by virtue of s 359.
[538] In the absence of counselling notes, it is difficult to pinpoint exactly when specific allegations of sexual abuse were first made and when the plaintiff received treatment for that abuse.
[539] The allegation of sexual abuse by her grandfather was first mentioned to Letitia Allan, during a weekend in the bush. At that time, the plaintiff had been seeing Ms Allan for counselling for postnatal depression. However, the support provided at that time was not specifically tailored to sexual abuse; the therapy primarily related to the provision of skills to cope with parental pressures. It can not be described as treatment for the effects of sexual abuse specifically.
[540] It seems that the plaintiff first underwent counselling targeting sexual abuse in 1999. She had individual sessions with Dee DuCrow in February, March, May and June of that year and also took part in a group therapy course. She had further one on one sessions with Ms DuCrow in 2001.
[541] Ms DuCrow herself was unable to recall details of what was discussed during these sessions. The plaintiff said that the first time that she gave detailed evidence relating to specific incidents of abuse was when she talked to the Police. She was unsure whether she named the alleged offenders during the course of her therapy with Ms DuCrow.
[542] However, given that the plaintiff sought counselling for childhood sexual abuse and met with Ms DuCrow at least three times in the first half of the year for
counselling in respect of that abuse, I accept that in this time she would have outlined, in as much detail as she could manage, her beliefs as to what happened to her in her childhood. At that point she remembered abuse at Holly Grove, during her time at the Ss, and by her maternal grandfather. She said that reading her sister’s file and her file respectively had triggered the recollection of the first two incidents. She received her own file in March 1999. It is not clear when she first saw her sister’s. But she had mentioned abuse by male caregivers in a general way in 1987 or thereabouts. I therefore accept that the treatment that the plaintiff sought from Ms DuCrow can be taken as relating to these three alleged incidents, and that it occurred prior to 1 July 1999. Therefore, s 21A governs the mental injury arising from these alleged acts of abuse. As these proceedings were filed prior to the introduction of the Injury Prevention, Rehabilitation, and Compensation Amendment Act (No 2) 2005, the plaintiff would not be statute barred. This is the effect of s 21A notwithstanding that the abuse by the plaintiff’s grandfather occurred after 1 April
1974.
[543] There is no suggestion that the alleged abuse by Mr N, Mr L or Mr McCormack was addressed in counselling before 1 July 1999. Accordingly, each of those events, if established, would be covered by the Accident Compensation Scheme.
LIMITATION ACT DEFENCE
[544] The third and fourth defendants submitted that the plaintiff’s claim based on the alleged beating by Sr S about her head and ear was time-barred because she first became aware of the connection between the alleged assault and damage some time between 1987 and 1991. However, this argument fails to address s 24 of the Limitation Act 1950 which provides that for the purposes of that Act the right of action accrues on the date on which a person ceases to be under a disability. As both Dr Crawshaw and Dr Marks agreed that the plaintiff would have had difficulty in bringing her claim prior to the mid to late 1990s, I am satisfied that this defence would not prohibit the plaintiff from pursuing this claim and recovering against the defendants, if it were otherwise established on the facts.
DAMAGES
[545] As the plaintiff has not succeeded in establishing liability against any of the defendants in either negligence or breach of fiduciary duty and the first and second defendants are not vicariously liable for the wrongdoing of caregivers with whom the plaintiff was placed, it is not necessary to address her claims for damages, whether compensatory, aggravated or exemplary.
SUMMARY OF FINDINGS IN RELATION TO THE PLAINTIFF’S CLAIMS
[546] The second and third defendants owed duties of care to the plaintiff.
[547] The second defendant, through its contact staff, was required to carry out social work with due care and skill, according to the standards of the time. It was under a duty to monitor the plaintiff’s residential placements, check new placements, oversee her progress generally and take reasonable steps to address any significant problems that became evident to its representatives.
[548] The third defendant was under a duty to feed and clothe the plaintiff and send her to school. It was also required to provide for her physical needs and protect her safety.
[549] In exercising day to day care of the plaintiff, the third defendant was under a duty to discharge its functions, including disciplining the plaintiff, in a manner consistent with accepted practices at the time, in the context of an institutional environment. Physical, verbal or psychological forms of discipline that exceeded accepted practice or could otherwise be categorised as abuse would be in breach of this duty of care.
[550] However, neither the second or third defendant owed duties akin to duties of optimal parenting. They were not required to provide the most favourable and stimulating environment possible. Nor were they under a positive duty to provide an emotionally fulfilling home, a loving support network or to ensure that the plaintiff thrived.
[551] The first and fourth defendants did not owe duties of care to the plaintiff.
[552] The second defendant was only able to exert limited control over the care of the plaintiff while she was at the orphanage. She was placed in what appeared to be appropriate foster and holiday placements, which the second defendant’s social workers checked and monitored with due care, given the length of the placements. They also took adequate steps to address the plaintiff’s apparent needs. However, given the lack of knowledge of the indicia of sexual abuse at the time, they cannot be criticised for failing to recognise that she may have been abused. Nor was it realistic to refer her to professional counselling. The second defendant did not breach its duty of care to the plaintiff.
[553] In the late 1960s to mid 1970s St Joseph’s Orphanage was seen as providing an excellent standard of care. The means of disciplining and controlling the girls, while unacceptable by today’s standards, did not go beyond what was accepted practice in an institutional environment at the time. The third defendant did not breach its duty of care to the plaintiff.
[554] The second defendant is not vicariously liable for any sexual abuse of the plaintiff by caregivers on holiday placements. The necessary element of control was lacking in the relationship between the second defendant and the caregivers. In addition, compelling policy factors, which were present in S v Attorney General, do not feature in this case.
[555] Nor is the second defendant vicariously liable for sexual abuse of the plaintiff by family members.
[556] The claim for breach of fiduciary duty mirrored the claim in negligence and must also fail.
[557] As treatment in respect of mental injury arising from the alleged abuse by Mr N, Mr L and Mr McCormack did not occur until after 1 July 1999, this injury would be covered under the Accident Compensation Scheme, if the allegations were made out. On the other hand, treatment for mental injury arising from alleged abuse
at Holly Grove, at the Ss and by the plaintiff’s grandfather falls within the scope of s
21A of the Injury Prevention, Rehabilitation and Compensation Act 2001. So that the right to sue for compensatory damages in respect of that abuse is preserved.
[558] The plaintiff’s claim of personal injury arising from the alleged beating by Sr S, if it had been made out on the facts, would not be barred by the Limitation Act, given that the plaintiff was under a continuing disability.
[559] It is unnecessary to consider damages, as none of the causes of action has been made out.
COSTS
[560] If counsel are unable to resolve the issue of costs among themselves, counsel for the defendants are to file memoranda within 21 days of the release of this judgment, with counsel for the plaintiff to file a response 14 days thereafter.
M A Frater J
Counsel: H A Cull QC P O Box 10433 The Terrace Wellington for the Plaintiff
(Facsimile 04 473 2501)
C F Finlayson P O Box 8045 Wellington for the Third and Fourth Defendants
(Facsimile 04 473 3179)
Solicitors: Margaret Powell and Wendy Davis P O Box 11248 Wellington for the Plaintiff
(Facsimile 04 801 5157)
Thomas Dewar Sziranyi Letts (G J Thomas) P O Box 31240 Lower Hutt for the
First and Second Defendants (Facsimile 04 569 4260)
O’Regan Arndt Peters and Evans (Ms M E Hubble) P O Box 5176 Wellington for the Third and Fourth Defendants (04 473 0022)
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