2008 NZCA 49
Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36
Bryan v Maloney (1995) 182 CLR 609
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Catchwords
2008 NZCA 49
Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36
Bryan v Maloney (1995) 182 CLR 609
Judgment (4 paragraphs)
[1]
Judgment (EX TEMPORE) - VOIR DIRE 2
The plaintiff seeks leave to proceed by proposed Amended Statement of Claim in the style first introduced to the proceedings on the first day of the hearing and as subsequently better particularised during argument. The application to amend proceeds pursuant to s 64 of the CPA. The amendment is opposed on the basis that the plaintiff seeks to proceed against the defendants as parents. The defendants submit that the proposed pleaded action would contemplate an expansion of the common law.
It is put by counsel for the defendants that the Court would be hesitant, being a court of first instance, to permit a case seeking expansion of the common law, to proceed. It is properly conceded by the first defendant, that the ever developing common law is not closed to the field of, and introduction of, new causes of action.
The Statement of Claim originally pleaded at para 13 against the second defendant, a cause of action in these terms:
"Such further sexual assault abuse by the First Defendant and was aided by abetted and facilitated by the Second Defendant and the Second Defendant is accordingly liable for such further sexual assault and abuse."
Obviously the word "and" should be substituted for the word "by" between the words "aided" and "abetted".
In the plaintiff's Schedule of Issues, marked MFI 2, which had been provided to the defendant and was delivered to the Court at the commencement of the hearing, three issues were identified. The first concerned the assaults and abuse allegations advanced by the plaintiff, being assaults and abuse allegedly committed by the first defendant. The second stated words to the effect of, "Aiding and facilitating the First Defendant's abuse of the Plaintiff by the Second Defendant's failure to assist on the Plaintiff's complaint to Ms Turner and resultant punishment of the Plaintiff by the Second Defendant." I interpose that it is common ground that the plaintiff case alleges that the plaintiff complained to a Ms Turner, who was related to the second defendant and subsequently suffered punishment for having made that complaint. The plaintiff's case includes the allegation that Ms Turner spoke to one or both of the defendants. The third issue concerns damages.
The defendant also delivered a Schedule of Issues dated 21 August 2020, which became marked MFI 4. The first four numbered paragraphs concerned the questions of whether or not the first defendant sexually, emotionally and physically, or in any other way, assaulted the plaintiff. In regard to the second defendant, there are seven identified issues for determination on the question of liability. The first four concern whether or not the second defendant sexually, emotionally and physically, or in any other way, assaulted the plaintiff. Issue five was whether or not the plaintiff complained to the second defendant as particularised in para 10 of the Statement of Claim about the first defendant's conduct. Issue six was whether or not the second defendant denied the allegation of assault and abuse by or on the part of the first defendant, as particularised in para 11 of the Statement of Claim. Particular seven stated as follows:
"Whether the second defendant aided and abetted the first defendant and facilitated the first defendant as particularised in paragraph 13 of the Statement of Claim"
The plaintiff's case against the second defendant, as originally pleaded in the original Statement of Claim and in the proposed Amended Statement of Claim, is for her omission and action following the complaint made by the plaintiff to Ms Turner and conveyed by her to the second defendant. The proposed Amended Statement of Claim deletes para 13 and substitutes for it paras 13A to 13F. Those proposed particulars plead that the second defendant was aware of the sexual assault of the plaintiff at the hand of the first defendant, she having been informed by her sister, Ms Turner, of the plaintiff's complaint to Ms Turner, which complaint the first and second defendants denied. Again, it pleads that the plaintiff was subsequently punished for making that complaint and thereafter the first defendant continued to sexually assault and abuse her. The document, of course, speaks for itself in this application. The nature of the case is otherwise described in the original Statement of Claim and the proposed Amended Statement of Claim. For efficiency of time, I will not refer more broadly to those documents.
The proposed para 13B pleads as follows:
"As a foster parent, and/or by reason of being in loco parentis, the Second Defendant owed the Plaintiff a duty of reasonable care in respect to her safety from sexual assault and abuse by the First Defendant, the content of which duty of care included an obligation to report allegations of sexual assault made by or concerning the Plaintiff to relevant authorities, and/or, to otherwise act to reasonably prevent such sexual assault and abuse from occurring in the future."
These are the particulars of failure to act in the proposed para 13B:
1. Failure to counsel and procure the First Defendant to cease abusing the Plaintiff.
2. Failure to supervise the First Defendant's contact with the Plaintiff.
3. Failure to report allegations of abuse by the First Defendant to relevant authorities.
The referral to abuse is plain in the context of the matters pleaded in paras 9 to 12 of the Statement of Claim and encompasses sexual, emotional and psychological assault.
Plainly, the duty alleged is pleaded as arising on two bases identified in para 13B. The first is being a foster carer of the plaintiff and the second being in the relationship of loco parentis to the plaintiff. The defendants concede that they stood in the relationship as if parents of the plaintiff. The defendants submit that there is no extant duty in the common law of a parent to the child as the plaintiff sues upon in these proceedings. I understand this to be a submission made in relation to the case against both defendants but more strongly pressed in the case against the second defendant.
Unless it is not apparent from that which I have already said the allegations are of direct physical, sexual and emotional assault by the first defendant. The allegations against the second defendant are of a failure to take the particularised course subsequent of learning from Ms Turner of the complaint made by the plaintiff to her.
A question of causation is raised by the second defendant, being that the reporting of the complaint to authorities might not have prevented the harm. The pleading goes beyond merely the failure to report but in any event causation is a matter properly to be determined at the end of the proceedings in my view and not a matter for present contemplation.
Present consideration concerns the competence of the proposed causes of action. The New South Wales Community and Justice website includes a Code of Conduct said to be consistent with the objective and principles of the Children and Young Person (Care and Protection) Act 1998. The document is headed "Code of Conduct for Authorised Foster, Relative and Kinship Carers".
It states that the Children and Young Person (Care and Protection) Regulation 2012 (NSW) provides for the Minister to issue this Code of Conduct and requires authorised carers to comply with the Code of Conduct as a condition of their authorisation. It then says:
"This ensures carers understand their rights and responsibilities. Non-compliance with this Code of Conduct would lead a designated agency to commence an investigation into the suitability of an authorised carer to provide out of home care"
I refer to this document before coming to what is expected of a foster carer for two purposes. The first is in response to the defence submission, to acknowledge that, it is not a statutory code prescribing a basis for action in damages. It appears to me to be a statement of community policy under a statutory regime within which persons who become foster carers receive authorisation. To that extent, the defendants here, as foster carers, might not be in precisely the same legal relationship to the plaintiff as might be natural parents. I do not need to determine that point. I make it simply in acknowledgment of the defendants' earlier concession that they stand as parents. That is not a concession I need to wholly embrace as a matter of law in order to determine the application. The second purpose is to provide an outline of what is expected by the community of authorised foster carers. That is, the code of what was expected of the defendants in their care of the plaintiff. That Code expressly requires the following:
"Immediately report to the designated agency any allegations or incidents of abuse, common neglect or ill treatment you are aware of…";
"Provide a physical environment that is safe, clean and comfortable, and meets the needs of the child or young person in your care…";
"Respect the child or young person's personal privacy and ensure secure storage and respect of their belongings"; and
"Provide a care environment where the child or young person is not exposed to physical, sexual, psychological or verbal abuse, ill-treatment or neglect".
Plainly, the common law is often observed to follow community policy under statute and as required and dictated by government departments. The scope of the duty pleaded here was to provide safety from sexual assault and abuse by the first defendant.
The content of the duty pleaded was not just to report to authorities, but to take reasonable steps to prevent the first defendant's conduct from occurring in the future. In para 13C, the second defendant's breach of duty of care is described as intentional for the purposes of s 3B(1)(a), Civil Liability Act. The paragraph repeats the allegations of failure to report and prevent advanced in para 13B.
In the proposed new paras 13D to 13F, causation is pleaded. As I have said, in my opinion, that is a matter for final submissions. Nothing has been put to me to suggest that causation is wholly inconceivable or unarguable. This case does not require a narrow or technical view to be taken of the pleading. In my opinion, the breach of duty of care alleged is identified and the particulars mark out the area of dispute. In this way, I am satisfied that the particulars identify the field of evidence.
Indeed, the defendants do not claim prejudice in the nature of inability to prepare and obtain evidence for their defences. In this way, it is not claimed that there is prejudice. In my opinion, the amendment is, in that regard, sufficient for the purposes of the application for leave: Water Board v Moustakas (1982) 180CLR 491; UCPR r 15.1. Save for the defendants' submission that the proposed claim ought not to advance because it is an expansion of the common law, not an application of extant case-based principle; there is no pleading of a statutory duty upon which the plaintiff relies.
[2]
SHORT ADJOURNMENT
The relationship between the common law and statutory policy was the subject of comment of the High Court of Australia in Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36. As a judge at first instance, it is not for me to find policy or make policy, but rather to apply the common law within its limitations.
In Brookfield, the policy consideration concerned the scope of the field of those who might recover pure economic loss and the entitlement to recovery of pure economic loss facing, as it does, certain hurdles for recovery to which recovery of other heads of damage are not subjected. At para 28, with reference to the earlier High Court decision of Bryan v Maloney, the plurality of Crenann, Bell and Keane JJ concluded the paragraph with this sentence:
"There is no reason to regard the existence, or non‑existence, of an anterior duty of care to a prior owner as more than an important factor relevant to the existence of a duty of care in respect of pure economic loss to a subsequent purchaser."
At para 134, they said this:
"By enacting the scheme of statutory warranties, the legislature adopted a policy of consumer protection for those who acquire buildings as dwellings. To observe that the Home Building Act does not cover claims by purchasers of serviced apartments is not to assert that the Act contains an implied denial of the duty propounded by the respondent. Rather, it is to recognise that the legislature has made a policy choice to differentiate between consumers and investors in favour of the former.
That is not the kind of policy choice with which courts responsible for the incremental development of the common law are familiar, and to the extent that deference to policy considerations of this kind might be seen to be the leitmotif of this Court's decision in Bryan v Maloney, the action taken by the New South Wales legislature served to relieve the pressure, in policy terms, to expand the protection available to consumers."
I refer to this because the defendant's submission makes reference to the legislation and that the plaintiff does not sue on breach of statutory duty. Indeed, more fundamentally, it is proper to observe that the causes of action prosecuted by the plaintiff in this case reside in the common law alone.
I have commented on the mindfulness which is appropriate for a court to bear of public policy in my reference to the Code affecting foster carers under their authorisation. Both parties referred me to the case of State of New South Wales v DC [2017] HCA 22. I must say, I do not find much assistance from it, other than that the rationale of that decision is not contrary to that which I have spoken to so far.
In that case, the children, who had suffered physical and sexual abuse perpetrated by their stepfather for many years, complained about the abuse to a caseworker of the Department of Youth and Community Services. A section of the Child Welfare Act 1939 (NSW) provided that the officer or any constable of police could, without warrant, apprehend any child who the officer or police constable had reason to believe was a neglected child. It suffices to say there was an obligation to report the plaintiffs' complaint.
The plaintiff's did not sue the officer; they sued the Department, claiming damages for personal injury and mental harm. The plaintiffs made no complaint about the steps in fact taken by the Department. Rather, the plaintiffs there contended that the Department breached its duty of care to them by not reporting the abuse to the police.
At para 12 of the judgment, it was observed that it was not contested that the primary judge was correct in concluding that the officer may have owed the plaintiff a duty of care in the provision of welfare services, but that this duty was not the same as that owed by the Department. It was also observed that powers of the Department were not conferred upon her and therefore she owed no duty in relation to the exercise of the Department's powers.
I have said the decision is not of much assistance, but at least it should be acknowledged that, there being no contest as to the duty owed by an officer who stood in a closer relationship of knowledge, one would expect, than the Department. It is not a case standing against the principle of a duty of care owed to children, arising from the individual's relationship with children. In that case, the officer's relationship would have been as prescribed by the specification of her role and powers.
Here, we deal with persons who were within the relationship of foster carers and loco parentis, as they are put in the alternative, to the plaintiff child, who was of the vulnerable age of 16 years of age. The law has recognised for around 300 years that children are not prevented from suing their parents for assault: see of Law of Torts, fifth edition, Balkin and Davis, at 6.31. Each of the defendants, by choosing to enter the fostering relationship with the plaintiff, accepted the powers and responsibilities of parenting which contemplated the obvious vulnerability of the plaintiff as a child. The law recognises the vulnerability of children. It would be incompatible with the undertaking of the responsibilities of fostering to ignore sexual, physical and emotional abuse of the child.
In A v Roman Catholic Archdiocese of Wellington (2003) NZLR 289; 2008 NZCA 49, in an action not directly against foster carers, but rather the providers of orphanage care, the New Zealand Court of Appeal, at paras 114 to 118, found a Catholic social work agency to have assumed such responsibility for children. Albeit references are there made to New Zealand child welfare legislation, which is not part of the legal framework of this jurisdiction, the subject matter of the vulnerability of children and protection of children provided under the Children And Young Persons (Care and Protection) Act (NSW) nevertheless brings those principles to relevance in this jurisdiction. The New Zealand Court of Appeal said:
"This seems to us to be consistent with a legal duty on those running children's institutions operating under the child welfare legislation or supervising children in such institutions, to take reasonable steps to avoid emotional abuse. Such a duty of care is certainly not inconsistent with the scheme of the legislation."
Also at para 118:
"In this context we think it would be possible to impose on those providing or supervising the institutional care of children a duty to take reasonable steps to avoid the emotional harm associated with either their own behaviour (that is, ill-treatment) or problems of which they are aware or ought to be aware (that is, the sort of problems which would make it clear that the child was living in an environment which was detrimental to the child's 'moral well‑being'). Such a duty would be closely associated with the obvious duty of care as to the physical safety (including health) of the children and it would be broadly consistent with societal expectations."
Whilst the words "moral well-being" for present purposes are very limited in application, the reference to the duty of care for physical safety and well‑being and emotional and psychological safety and well-being of the plaintiff, are not. In my opinion, it would be abhorrent not to accept a duty of at least the content owed by a child care institution to the child, to be owed by each foster parent of the child at common law.
In this opinion, I do not propose expanding the common law or moving on any basis not presently extant. Rather, as will follow, I propose to proceed by application of the circumstances of this case to extant principles of the existing common law. Two fundamental elements of the relationship of the plaintiff to each of the defendants here were her vulnerability arising from her youth, and her dependence upon them for comfort, safety and survival on the one hand, and their control over her and over the environment in which she lived, including the behaviour of each other, in the other hand.
In Modbury Triangle v Anzil (2000) 295 CLR 254; [2000] HCA 61, at para 13, the Chief Justice said of the common law's recognition of duty of care and the foundations of the duty of care at common law:
"Most actions in tort which come before trial courts arise out of relationships in which the existence of a duty of care is well established and the nature of the duty well understood. Cases arising out of the use of a motor vehicle, or involving employer and employee, or bailor and bailee, turn upon application of the facts of well settled principles concerning legal responsibility… In other cases of which the present is an example, there is a real issue as to the scope of legal responsibility. Such an issue cannot then be resolved by a detailed recitation of the facts, the representation of the standard rubrics under which discussion of the tort of negligence is commonly organised, and an appeal to common sense."
At para 14, the Chief Justice commented on the usefulness of contemplating the measure of legal responsibility by beginning with identifying the nature of the harm suffered by a plaintiff for which the defendant is said to be liable. The nature of the alleged harm here, being psychological damage consequent from sexual, physical and emotional assault, in my opinion identifies a high level of legal responsibility within the duty of care owed and indicates a scope of responsibility commensurate with the existence of that duty of care. Unlike in Modbury; here the plaintiff does contend that the harm suffered by her results from direct danger and action by the first defendant, but also, in relation to the second defendant, that the harm suffered by her results from the second defendant's action and inaction which permitted the assaults to continue. Unlike in Modbury, where the occupier possessed no power of control over the criminal acts of third parties in the carpark of the property; here the contention is that the second defendant, as foster carer of the plaintiff and wife of the first defendant, had knowledge of what the first defendant had done and continued to do, and could have deterred him from continuing to do it. Unlike in Modbury, the allegation against the second defendant here is not that she ought have deterred the action of strangers, but rather, she ought have deterred the action of the first defendant, who was her husband living in the home with her and the children.
Being a foster child here, unlike in Modbury, the plaintiff was wholly reliant upon each of the first and second defendants and vulnerable to their treatment of her and their permitting treatment to fall upon her. She was particularly vulnerable and reliant upon the second defendant to protect her. At para 30 in Modbury, the Chief Justice said:
"There may be circumstances in which not only is there a foreseeable risk of harm from criminal conduct by a third party, but, in addition the criminal conduct is attended by such a high degree of foreseeability, and predictability, that it is possible to argue that the case would be taken out of the operation of the general principle and the law may impose a duty to take reasonable steps to prevent it. The possibility that knowledge of previous, preventable, criminal conduct, or threats of such conduct, could arguably give rise to an exceptional duty, appears to have been suggested in case law I have referred to."
At para 33, the Chief Justice then considered that in Australia, a high level of recurrent predictable criminal behaviour might give rise to such a duty of care. In my opinion, each of the first and second defendants arguably owed the duty of care which the plaintiff pleads in a proposed Amended Statement of Claim.
By written submissions received 24 August but dated 21 August, the defendants argue that the Statement of Claim does "not disclose any cause of action maintainable against the second defendant". The submission at para 2 starts with the words "the defendants and each of them submit", and if the argument is put that the Statement of Claim does not disclose a cause of action against the first defendant, I reject that argument. As already stated, unreasonable violence and assault of children directly by parents has been actionable since the 17th century. Nothing in Australian law has closed the door against the child's right to sue their parent on the basis of the allegations made against the first defendant in this case.
For the second defendant, it is submitted that the relationship of loco parentis alleges some kind of accessorial conduct for what is alleged against the first defendant. In relation to para 5 of the defendants' submissions: I consider that submission to be misconceived because the pleading is not merely of that nature, but rather pleads a separate duty owed by the second defendant to the plaintiff and the second defendant's breach of that duty by her acts and omissions. counsel for the defendants did not speak differently to this in the courtroom. The scope of the second defendant's duty, proposed to be pleaded, was to deter the first defendant, and the breach was the failure by acts or omissions to deter him and to provide protection to the plaintiff from him. The second defendant relies on Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574. At para 13, the second defendant's submission is:
"This submission extends to the proposition that in circumstances that the second defendant knew or accepted the truth of the claims by the plaintiff of assault (or assaults) by the first defendant against the plaintiff - that short of common design by the second defendant with the first defendant (as to which see discussion in Thompson (supra) and what is set out in para 7 of this submission) there is still not any jurisprudential foundation which the plaintiff can expound for any asserted obligation by the second defendant to report matters or circumstances asserted to her by the plaintiff."
I assume that submission proposes to deal not just with reporting but the other acts for prevention pleaded.
The second defendant's submission both misconceived the pleading and misconceived application of Thompson (supra). Again, I acknowledge the oral submission of counsel for the defendants, but I do need to deal with the submission as put. Thompson was a case which determined that publishers of defaming information were joint tortfeasors, and a settlement between the plaintiff and one of them was a bar to action against the other. At p 580, the High Court observed:
"The difference between joint tortfeasors and several tortfeasors is that the former are responsible for the same tort, whereas the latter are responsible only for the same damage."
In these proceedings, the plaintiff sues the first and second defendants as separate tortfeasors.
In Hahn v Conley (1971) 126 CLR 276 at 283 to 284, Barwick CJ started a passage by saying that where there is a cause of action available to the child, the blood relationship of the defendant to the child will not constitute a bar to the maintenance by the child of the appropriate proceeding to enforce the cause of action, and the Chief Justice stated:
"I think that the view for which there is most judicial support and the view which commends itself to me is that the moral duties of conscientious parenthood do not as such provide the child with any cause of action when they are not, or badly, performed or neglected. Further I think that the predominant judicial view to be extracted from those cases and again a view which commends itself to me as correct is that, whilst in particular situations because of their nature and elements there will be a duty on the person into whose care the child had been placed and accepted to take reasonable care to protect the child against foreseeable danger, there is no general duty of care in that respect imposed by the law upon a parent simply because of the blood relationship. Also, parents, like strangers, may become liable to the child if the child is led into danger by their actions."
And further on, his Honour added:
"In the case of the parent, as in the case of the stranger, it seems to me that the duty of care springs out of the particular situation: the extent and nature of the steps which it may be necessary to take to discharge their duty may well be influenced by the fact of parenthood, though parenthood is not itself the source of the duty."
His Honour said that the view expressed by McCarthy J in McCallion v Dodd (1996) NZLR 710 at 729 should be accepted. Due to the nature of the defendant's opposition to the amendment, I'm going to go to that judgment for completeness, but before doing so, wish to express the opinion that what I said of this case, drawing on the foundations of tortious liability as spoken of by the Chief Justice in the Modbury case, does not expand upon extant law when one bears in mind what Barwick CJ said in Hahn v Conley.
This is not an action calling upon moral duties of conscientiousness of parenthood. It is an action alleging the most deplorable physical and emotional assaults by one individual on a child, the individual standing in the duty borne relationship of vulnerability of the child, they being a foster carer and in loco parentis. This is the particular situation and these are the nature or elements of which Barwick CJ spoke and which are to be observed in the application of principle in any particular case.
What was said in McCallion v Dodd at 729 by McCarthy J included that there is:
"…no legal duty on a parent qua parent basis, and independently of any otherwise recognised specific duty of care to protect and control the parent's child, which on breach gave the child a right of action."
However, that does not mean the child cannot enforce against the parent the rights of action in tort which the law gives the child against those who harm him or her. McCarthy J said:
"no doubt at all that a child can sue his father for recognised torts, for example, for assault, for liable and for failure of the duty which a motorist owes to a passenger in his car."
McCarthy J said that the occasions when a child can sue his parent in tort are the result of specific situations in which the parties find themselves. He explained:
"In those situations, the fact that the defendant is a parent may, as a matter, be very immaterial, but the relationship is not the foundation of the right of action. It is the situation which creates the enforceable duty."
As I have said, the alleged circumstances here are of physical assault by the first defendant; and the allegations against the second defendant are that by omission and by act, she failed to prevent those physical assaults from continuing and failed to protect that plaintiff in that sense. I should add that the plaintiff does not allege mere negligence, but also a deliberate tort.
For the reasons given, I grant leave to the plaintiff to proceed on the Amended Statement of Claim, which I will now endorse.
[3]
ORDER
I therefore make the following order:
1. Leave be granted for the plaintiff to proceed on the Amended Statement of Claim.
[4]
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: 03 May 2021
Parties
Applicant/Plaintiff:
Perry
Respondent/Defendant:
Kinnear & Ors
Legislation Cited (5)
Child Welfare Act 1939(NSW)
Children and Young Person (Care and Protection) Regulation 2012(NSW)