MTH v State of New South Wales

Supreme Court of NSW|2022-04-14|Before: Garling J

Judgment

In this matter, the plaintiff "MTH" has, by Notice of Motion provided to the Court on 3 March 2022, sought leave to join Mrs Sandra Croft to the proceedings as the third defendant.
At the hearing of this Motion, MTH sought leave to supplement the documents upon which she sought to rely. Those documents were provided to the Court and the parties by MTH on 21 April 2022.
Thereafter, the Court received further written submissions from MTH and the other parties to the Motion. The last submission was received on 11 July 2022.
The Court reserved judgment on that date.
For the reasons which are contained in this judgment, that application must, on the material put before the Court, fail.

Direct Liability of the State

As against the State, MTH pleads that it was directly liable to her for its negligence and breach of duty of care in failing to make enquiries about the suitability of Mr and Mrs Croft to be foster parents for the plaintiff. The plaintiff alleges that the State failed to protect her from being sexually assaulted by Mr Croft and failed to properly supervise the conduct of him as her foster parent.
A wrapped-up allegation describes the particulars of the breach of duty of the State in the following terms: "Allowing the Second Defendant [Mr Croft] to have unsupervised contact with the Plaintiff being a child in circumstances whereby the Second Defendant had a relationship with high degree of power and intimacy which afforded the Second Defendant the opportunity to sexually predate the Plaintiff, a child, and that the Defendants owed the Plaintiff a non-delegable duty of care to exercise reasonable care for the safety of the Plaintiff, including to develop and maintain a proper system of caring for the Plaintiff who had been, since 1967, a ward of the State." (sic)

Vicarious Liability of the State

As an alternative, MTH pleads that the State is vicariously liable for the acts of Mr Croft in physically and sexually assaulting her.

Liability of Mr Croft

As against Mr Croft, the plaintiff pleads that she suffered damage by reason of the physical and sexual assaults perpetrated upon her by him and the harm which resulted to her.
It is appropriate to note that Mr Croft was found guilty after a trial in the District Court of NSW of three counts of indecent assault on the plaintiff contrary to s 78 of the Crimes Act 1900 (as then in force) and two counts of rape contrary to s 63 of the Crimes Act (as then in force).
He was sentenced to a lengthy term of imprisonment. An appeal against his convictions was dismissed by the Court of Criminal Appeal: Croft v R [2021] NSWCCA 146.
After the argument was heard on this Motion, and prior to this judgment, the Court was informed that Mr Croft had died.
As his legal representatives in these proceedings took no part in the argument on the Motion but adopted a neutral stance, no objection was raised to the Court proceeding to deliver judgment on this Motion in the absence of a representative appointed in respect of his Estate.

Claim against Mrs Croft as the Proposed Third Defendant

At the time the proceedings commenced and when the plaintiff was represented by a lawyer, there was no claim made against the proposed third defendant, Mrs Croft.
Whilst Mrs Croft is mentioned in the course of the Statement of Claim, it was not said that she had acted in any way which gave rise to legal liability on her part to the plaintiff.
Although MTH had legal representation when the proceedings were commenced, towards the end of 2021 she ceased to be legally represented and has continued to represent herself since then.
In considering the issues raised by this Motion, and the proposed Amended Statement of Claim, I have kept in mind the need to extend appropriate latitude to a litigant who is representing herself.

Proposed Amended Statement of Claim

There have been a number of proposals to amend the Statement of Claim so as to finalise the pleadings against the existing defendants, the State and Mr Croft, and to add Mrs Croft as a third defendant. To avoid any confusion, it is appropriate to identify those previously proposed amended pleadings so that the relevant pleading is recognised.
On 7 October 2021, Mr Walsh, the solicitor then acting for MTH, circulated a proposed Amended Statement of Claim which consisted of 60 paragraphs and with a date in the signature block of September 2021.
On 30 November 2021, MTH sent a proposed Amended Statement of Claim to the Court, the parties and Mrs Croft which consisted of 65 paragraphs. This proposed pleading contained Mr Walsh's details as the solicitor acting for her although his retainer had been terminated at the time the document was circulated. This document also had the date of September 2021 in the signature block.
Neither of those proposed pleadings are being advanced by MTH as her presently proposed amended pleading. Rather, she propounds another proposed Amended Statement of Claim of 63 paragraphs which was signed by her on 2 March 2022.
This proposed pleading, as does the original pleading, alleges that the sexual assaults perpetrated upon the plaintiff by Mr Croft all occurred on the rural property which Mr and Mrs Croft owned and where they resided in 1979.
The first assault which is alleged to have taken place is one in which the plaintiff was hit by Mr Croft with his belt across her buttocks on a number of occasions whilst she was fully dressed. She pleads that this assault occurred in circumstances where Mr Croft told her that she had not properly undertaken her domestic duties as required by Mrs Croft.
The plaintiff pleads a second assault - which was the first occasion of a sexual assault - occurring in or about May 1979, when Mr Croft informed her that she had not been keeping her room clean and had not made her bed. He told her that he had discussed the matter with the Mrs Croft and "… there was a need to punish the plaintiff". The plaintiff pleads that Mr Croft struck her on the bare buttocks with his belt and then sexually assaulted her.
The third assault is pleaded as also having occurred in May 1979, again in circumstances where the second defendant struck the plaintiff on her bare buttocks a number of times with his belt, following which he then sexually assaulted her. The plaintiff pleads that on this occasion Mr Croft reminded her that she needed to be punished for doing something wrong. There is no mention of Mrs Croft as being present in the house on this third occasion.
Thereafter, the plaintiff pleads "at least" 10 further occasions of sexual assault. These are all pleaded as following a common pattern whereby she would be repeatedly struck by Mr Croft using his belt on her buttocks following which he would have sexual intercourse with her. He would then direct her to have a shower and remove the sheets from her bed and wash them.
The plaintiff pleads that towards the end of 1979: "Somewhere near the last occasion that abuse took place in the latter part of 1979 the Plaintiff was berated by the Third Defendant [Mrs Croft] about hygiene matters after discovering soiled and bloodied underwear and sanitary item in a cupboard and the Plaintiff blurted out to the 3rd Defendant the abuse…" (sic)
The plaintiff pleads that shortly after this, officers of the Department of Family and Community Services attended at the property and directed her that she was leaving. She pleads that she received no prior notice of this occurrence.
In paragraph 43 of the pleading, causation and damage are pleaded in these terms: "The physical assaults and sexual assaults, injury and harm suffered by perpetrated upon the Plaintiff by the Second Defendant were caused and/or contributed to by a breach of duty of care owed by the First, Second and Third Defendants." (sic)
Seven particulars of "… the First Defendant's breaches of duty" are set out. The terms of those particulars make it plain that they are not allegations of any breach of duty on the part of Mrs Croft.
The pleading then sets out an allegation that the first defendant is vicariously liable for the assaults carried out by Mr Croft.
In paragraph 47, the plaintiff pleads that she suffered loss and damage as a consequence of Mrs Croft's breaches of duty.

Proposed Claim against Mrs Croft

In the proposed amended pleading, the plaintiff sets out in paragraph 49 and following the claim she makes against Mrs Croft.
The plaintiff pleads that in the period of December 1976 and/or January 1977 (which was about two years or more before she went to live with Mr and Mrs Croft), there were twin boys (RS and PS) aged 12 years old who were placed in the temporary care of Mr and Mrs Croft at their rural property. She pleads that on one occasion, which occurred a few days after their foster placement started, Mr and Mrs Croft jointly engaged in conduct which seemed to constitute offences of indecent assault against each of the boys. The conduct described, which was of a sexual kind, was entirely inappropriate for Mr and Mrs Croft in their capacity as foster parents to engage in. The plaintiff also pleaded that on a further occasion, Mr Croft sexually assaulted RS in circumstances where, it is in effect alleged, Mrs Croft must have known of the assault.
Finally, the plaintiff pleaded a further occasion of sexual assault on RS in association with a fall off a tractor, where it is alleged that after speaking with Mrs Croft, Mr Croft dragged RS to a shed where he physically assaulted him with a stockwhip. After that, it is pleaded that Mr Croft then sexually assaulted RS. When RS returned to the house, he was directed by Mrs Croft to have a shower.
The plaintiff then pleaded that at the end of the school holidays (inferentially in 1977), RS and PS were returned to the care of the Department of Community Services at Randwick.
Having pleaded the facts which have just been briefly summarised, the plaintiff has pleaded her claim against Mrs Croft in the following terms: "62. In the circumstances of the physical and/or sexual abuse suffered by RS and PS at the hands of the Second Defendant in the presence of the Third Defendant and/or to her express or implied knowledge, the Third Defendant owed a duty of care to any subsequent foster children attending the premises of the Second and Third Defendant or otherwise being in their care. 63. The Third Defendant breached her duty of care to the Plaintiff. Particulars of breach of duty of care: (a) Exposed the Plaintiff to the risk of injury which could have been avoided by reasonable care; (b) Failed to report the Second Defendant's conduct to appropriate authorities, including the First Defendant, in circumstances where she was aware of incidents of assaults and sexual assaults by the Second Defendant upon RS and PS being at a time before the Plaintiff was placed in the care of the Second and Third Defendant by the First Defendant; (c) Failed to decline the opportunity to have the Plaintiff as a foster child given her knowledge of the actions of the Second Defendant; (d) Failed to prevent the Second Defendant from assaulting and sexually assaulting the Plaintiff."

Plaintiff's Submissions on the Motion

In support of her claim to be permitted to file the proposed amended pleading, MTH placed before the Court a bundle of material including a variety of statements which she had made to both Queensland and NSW Police and an unsigned evidentiary statement (apparently prepared by her legal representatives before she terminated their retainer) together with a witness statement headed February 2022 but signed on 2 March 2022.
It is unnecessary to set out in this judgment all of the contents of all of the statements. As best as can be identified, MTH has not in any of the statements said that the physical and sexual assaults perpetrated upon her by Mr Croft occurred in circumstances where Mrs Croft was personally present and witnessed what was occurring, nor does she describe Mrs Croft as being present in the house at the time the assaults took place. On a number of occasions, MTH noted that the assaults took place at a time when Mrs Croft was not at the property and had left it to go elsewhere. She says that she told Mrs Croft on only one occasion of the abuse being perpetrated upon her at a time after the last occasion of abuse and shortly before she was removed from their care.
In a statement made to a police officer at the Browns Plains Police Station in Queensland, which was signed on 14 February 2013, MTH said this with respect to Mrs Croft's knowledge of the assaults upon her: "36. While I was living with them, issues and ongoing conflict arose between Joe and Sandy; I believe that this was as a result of Sandy becoming aware of the domestic violence and the sexual and indecent assaults on me, but I'm not certain."
The reference to "Joe and Sandy" is to Mr and Mrs Croft.
No doubt because of the supposition of MTH about Mrs Croft's knowledge, and her lack of certainty of it, there are no facts pleaded which suggest actual knowledge on the part of Mrs Croft of that physical and sexual abuse at the time it was actually occurring. It is not pleaded that she participated in the assaults, or that they occurred in her presence.
In her witness statement, which is headed February 2022, when dealing with the allegations which are now sought to be made against Mrs Croft, MTH says this: "77 Another terrible impact upon me has been as a result of the criminal proceedings involving two wards of the State who I know to be [RS and PS], who were also physically and sexually assaulted by the Crofts in 1976 and 1977. Surely DOCS officers would have been aware of this conduct on the part of the Crofts or been on notice of it or have done something to investigate this conduct by the Crofts towards these very vulnerable twin boys. If DOCS would have done their job, then I should never have been taken to the Crofts at all."
Another relevant source of the factual material with respect to the facts upon which MTH relies to give rise to the duty of care is to be found in Croft v R [2021] NSWCCA 146 at [8].
In the course of oral submissions, MTH said that in her initial police statement, she had told the police that she had "identified to Mrs Croft I was abused at the time". That statement seems to reflect that part of the various accounts of MTH where, after the final occasion of assault, she told Mrs Croft about what had occurred. She recounts that within a short space of time after that, officers of the first defendant removed her from the home of Mr and Mrs Croft. There is nothing in that factual description which assists in the determination of the issues on this Motion.
MTH first submitted that the orders she seeks in the Motion ought be allowed because she had originally instructed her solicitor to include Mrs Croft as a defendant at the time the proceedings were first commenced against the State and Mr Croft.
MTH also submitted that the facts were such that they described a legitimate cause of action and that her pleading articulated sufficiently that cause of action, and that it was in the interests of justice for leave to be granted to enable her to bring the action against anyone who may be legally liable for the consequences of the assaults.

Submissions of Mrs Croft

It is convenient to commence with the submissions of the proposed third defendant, Mrs Croft.
Mrs Croft submitted that leave should be refused to permit the plaintiff to the amend the current Statement of Claim by adding her as a third defendant, and that MTH's Motion should be dismissed.
She submitted that such a conclusion followed from these propositions, namely that the proposed claim is: "a. untenable in its own terms; b. futile, because it is likely to be statute barred; and c. likely to be oppressive to Mrs Croft because it would require her to answer a claim which is '…seriously and unfairly burdensome, prejudicial or damaging' and 'manifestly unfair' to her."
The submissions contended that the proposed Amended Statement of Claim met the threshold of being considered an abuse of process. In addition, it was submitted that the proposed Amended Statement of Claim was so defective in form and substance that it should not attract a grant of leave.
Mrs Croft also submitted that the duty of care relied upon was pleaded in a way which suggests that there was an absolute duty to prevent a risk of harm being perpetrated by Mr Croft. She noted that the duty is said to arise out of conduct which preceded any abuse being perpetrated on MTH and arose from circumstances relating to the two earlier foster children. She pointed to the fact that the duty of care arises prior to any fostering of the plaintiff by Mr and Mrs Croft. Having regard to the way in which the particulars are expressed, Mrs Croft submits that in substance the particulars of breach of the duty are also said to have occurred prior to any sexual abuse being perpetrated upon MTH. Mrs Croft submitted that in terms, the duty pleaded is both indeterminate and unlimited, because it is expressed to be an absolute duty.
Mrs Croft further noted that the form of pleading is itself inconsistent with the principles for the proper pleading of a cause of action under the Civil Liability Act 2002. She submits that the Civil Liability Act applies to any claim being made against her because such claims are not excluded by s 3B of the Civil Liability Act because the civil liability claimed against Mrs Croft is not "… civil liability of a person in respect of an intentional act … that is sexual assault or other sexual misconduct committed by the person": s 3B(1)(a) Civil Liability Act.
Accordingly, Mrs Croft also submitted that the events having occurred prior to the time that MTH left the property, namely late 1979, the limitation period fixed by the Limitation Act 1969 has entirely expired. Mrs Croft submitted that the introduction of s 6A by an amendment to the Limitation Act, which was made with respect to claims for sexual abuse, did not have any effect upon the cause of action against her.
When pointing to the fact that the pleading did not accord with principles with respect to pleading of claims under the Civil Liability Act, Mrs Croft's submissions noted that the proposed amended pleading did not identify any risk of harm as this Court's decision in PM v The Council of Trinity Grammar School [2020] NSWSC 1353 at [24] required. She also submitted that no attempt was made in the proposed Amended Statement of Claim to identify the precautions which the plaintiff said should have been taken: PWJ1 v The State of New South Wales [2020] NSWSC 1235 at [29]. And, further, that the particulars of breach were inadequate and were meaningless and embarrassing.
Mrs Croft submitted that there is no pleading of causation of the kind which engages with the requirements of s 5D in the Civil Liability Act and the absence of such pleading also makes the proposed Amended Statement of Claim defective.
Mrs Croft invites the Court to conclude also that by reason of the elapse of the limitation period and inapplicability of the unrestricted limitation period for cases of sexual abuse, the whole claim against Mrs Croft would be futile.

Submissions of the First and Second Defendants

The first defendant, the State, did not object to the joinder of Mrs Croft as a third party but submitted that the proposed pleading in its current form is wholly defective, does not conform with various requirements of the Uniform Civil Procedure Rules 2005, is unable to be properly understood or pleaded to, and does not accord with the principles of pleadings discussed in various decisions of this Court about claims of the kind that MTH brings.
Mr Croft did not make any submissions in addition to those of the State to the Court on this Motion.

Discernment

In order to obtain a grant of leave to permit the addition of Mrs Croft as a third defendant, and the amendment of the Statement of Claim which is presently filed, it seems to me that MTH must show that: 1. she has an arguable cause of action; 2. that the proposed pleading adequately sets out the cause of action which she seeks to make out; and 3. that if the requisite leave is granted, it would not be an exercise in futility.
Ordinarily, as well when seeking the making of a discretionary order by the Court, MTH would need to provide an explanation of the circumstances in which she came to make this application. I am satisfied that on the evidence, she has provided an appropriate explanation. No submission to the contrary was made.
Where a novel duty of care is pleaded which reflects an incremental development of the existing common law, it would not be appropriate, for the Court when considering a grant of leave to enable such a claim to be made, to hold out a plaintiff from a full hearing on such a novel duty of care: Gibson v Parkes District Hospital (1991) 26 NSWLR 9 at 17, 23.
I do not regard it as an unarguable increment to the existing common law that if Mrs Croft was aware that Mr Croft did in fact abuse either or both of RS and PS or else, based on what she observed, he had a tendency to physically and sexually abuse children brought into their home under a fostering arrangement, given the nature of an unsupervised fostering arrangement, she may have had an obligation to decline to accept any further children pursuant to a fostering arrangement; or else draw any concern which she might have to the attention of the relevant government authorities.
However, the cause of action which is pleaded does not reflect properly how such a duty of care may arise, and how it was breached in the circumstances.
In a number of decisions including PM and PWJ1, I have set out the essential integers of a pleading by way of a claim for damages against a defendant in accordance with the Civil Liability Act. I will not here repeat all that I have said in those cases.
However, in my view, it is essential for a pleading of a claim pursuant to the Civil Liability Act to set out clearly: 1. all of the facts, matters and circumstances relied upon to give rise to a duty of care: Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at [50]; 2. a risk of harm in respect of which a duty of care is owed: Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [7]; Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 at [102]ff; Tapp v Australian Bushman's Campdraft & Rodeo Association Ltd [2022] HCA 11; 96 ALJR 337 at [106]; 3. that the risk was foreseeable, namely that it was either known or should have been known to the proposed defendant: s 5B(1)(a) Civil Liability Act; Benic v State of New South Wales [2010] NSWSC 1039 at [90]-[92]; 4. that the risk was not insignificant: s 5B(1)(b) Civil Liability Act; and 5. the precautions which a reasonable person in the position of the defendant would have taken against the risk of harm: s 5B(1)(c) of the Civil Liability Act.
It is of course also necessary to plead causation in the terms of s 5D of the Civil Liability Act with respect to the harm which ensued.
The proposed pleading does not directly address any of these matters.
Before leave could be granted to the plaintiff, it would be necessary for a further proposed pleading to be drafted so as to reflect these essential requirements for a proper pleading.
Mrs Croft's argument that the limitation period has expired and, accordingly, any claim against her would be futile, has an attractive simplicity about it. Mrs Croft submitted that the tort of negligence for which damage or injury is an essential element, must have been completed by no later than the end of 1979 at the time when the last occasion of abuse occurred. She submitted that on any view, that is a period of at least 42 years ago. She argued that because she is not accused of carrying out any sexual abuse or physical abuse or connected abuse, then the removal of the limitation period which was effected by s 6A of the Limitation Act has no effect on any claim against her. Accordingly, she submitted that even allowing for a period of time for the plaintiff to become an adult, the limitation period in respect of any cause of action against her has well and truly expired.
She submitted that it is apparent that the long stop period of 30 years has expired: see s 51 of the Limitation Act. In those circumstances, she submits that even if the plaintiff's claim be treated as one arising from a latent injury to her, then the injury and the effects of it were known to the plaintiff on any view by 8 October 2015, when the plaintiff gave a statement to police. However, this must be viewed in light of the contents of a police statement dated 2 February 2018, where the plaintiff said that she first made contact with Queensland Police and then NSW Police in mid-2012. It seems that at about that time she had a number of interviews with police officers in NSW and then, in due course, in early 2013, she spoke with Detective Senior Constable Hayter of the Queensland Police who, it appears, was responsible for her 14 February 2013 statement.
The submissions necessarily included the proposition that even if the injury by way of psychological harm suffered by MTH as a consequence of the abuse perpetrated upon her in 1979 is regarded as a latent injury, then by the time this application to join Mrs Croft was first raised in 2021, eight years had passed which period exceeds the allowable period for the bringing of proceedings with respect to latent injury.
In my view, attractive though it may be, reliance on the expiration of the limitation period to demonstrate that the case is an exercise in futility is premature.
The first observation is that unless and until a properly formulated statement of claim is prepared, and leave is granted to file it, it is unknown whether the newly added defendant - Mrs Croft - will choose to plead the expiration of the limitation period as a bar to the claim. If she does, it may be, depending on all of the circumstances, open to the plaintiff to seek an extension of time for the commencement of proceedings against Mrs Croft - relying upon perhaps a combination of her being under a disability for a period, the treatment of her traumatic mental health issues as a disability (which would have prevent the running of the limitation period) or, alternatively, treating her injuries as, in effect, a latent injury for which she may be entitled to an extension of time.
As well, depending on the circumstances, it may not be appropriate for a court to determine the expiration of a limitation period prior to receipt of all of the facts relied upon to establish that the limitation period had or had not expired: Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 533, 558-9; [1992] HCA 55.
As well, there is a substantive question to be argued, as to the interpretation of s 6A of the Limitation Act and whether its terms are applicable to a properly pleaded cause of action against Mrs Croft in the circumstances of this case. Any determination now of that substantive question may well be hypothetical and may be made in the absence of a full account of all the facts and circumstances.
For those reasons, I do not think that the argument about the expiration of the limitation period is one which, at this stage of these proceedings and in the absence of a proper pleading, can be regarded as shutting out the claim which MTH wishes to make.

Summary

It is convenient to summarise my reasoning. It is this: 1. the claim being made by MTH against Mrs Croft is a novel one at common law. However, it may, when properly pleaded, be able to be demonstrated to be no more than a reasonable incremental development of the common law and that, therefore, the claim ought be permitted to proceed; 2. the claim, as it presently exists in the proposed Amended Statement of Claim, is not adequately formulated or pleaded. It does not set out all of the relevant facts, matters and circumstances and does not adequately illustrate a duty of care, nor does it accord with the principles of pleading of a claim under the Civil Liability Act; and 3. I am not persuaded that it is appropriate at this stage to determine any question of futility based upon the Limitation Act.
No argument was mounted that a permanent stay ought be granted. Any such argument needs necessarily to await the filing of a properly drafted Statement of Claim.
In those circumstances, the Notice of Motion filed 3 March 2022 must necessarily fail and be dismissed. However, that is not a bar, in my view, to the filing of any future Notice of Motion in the event that a properly formulated pleading against Mrs Croft is prepared and leave is sought with respect to it. Any further Notice of Motion will need an explanation, as to all of the discretionary matters which would ordinarily be relied upon to persuade the Court to allow an amendment of proceedings some years after those proceedings have been commenced: see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27.
I can see no reason why costs should not follow the event with respect to Mrs Croft.

Orders

I make the following orders: 1. Notice of Motion filed 3 March 2022 is dismissed. 2. Plaintiff to pay the costs of Mrs Croft as the respondent to the Motion. 3. The costs of the first and second defendants be their costs in the cause.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 September 2022

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