This technique is capable of being misleading. Obviously had an inspector called in 1956 the recollections of all staff members and children would be much fresher than they are now. But it is highly unlikely that the children would have been asked (except for the plaintiff). The statement of what the Board would have been told is a melange of fragments recollected by the staff witnesses and the child witnesses. Those fragments were brought together for the purposes of a specific trial in which all witnesses were concentrating on the specific subject of the relationship between Lutanda and the plaintiff. It is somewhat unrealistic to suppose that a particular member of the staff at Lutanda would have passed on that precise set of symptoms in its completeness.
114 A further difficulty with the submissions is that they exaggerate the sharpness with which it is possible to distinguish between behaviour common among teenagers from symptoms of attachment disorder.
115 The plaintiff submitted that the trial judge had failed to deal at all with Professor Katz's fourth affidavit, which set out assumptions similar to those put in the four tables just referred to, and opined that a reasonably competent child psychiatrist or child mental health professional who received a report of those symptoms would have appreciated that the plaintiff was suffering from attachment disorder. In fact the trial judge did deal with Professor Katz's opinions to some extent. In particular he noted that Professor Katz accepted that each symptom was to a certain extent a feature of behaviour one would see in all children; that decisions as to what is normal behaviour are difficult "because there are so many factors in the individual concerned and in the observer"; that it followed from the fact that the Lutanda staff did not take the plaintiff for professional help that no such help was in their view required; and that if the plaintiff's behaviour was as he had been asked to assume, he would have expected it to be present at school (Red 2/278M-280H; Black 2/475J-477U). Relevantly to the present issue, the trial judge concluded (Red 2/280C-E):
"To sum up I do not accept the opinions proffered by Dr Katz in respect of his assessment of, or suggestions of care for the plaintiff at different ages. I also do not accept the validity of the history, hypotheses or assumptions on which they are based. I do not accept his views as to hypothetical actions… ".
116 These conclusions are illustrated by the fact that Professor Katz's assertion (which must be an assumption) that at Bomaderry "it was unlikely that [the plaintiff] would be able to form a close attachment with an adult" collides with the trial judge's findings about Sister Saville; and by the fact that Professor Katz's assumptions about her behaviour at Lutanda were contrary to the trial judge's findings about her behaviour there, which he had made earlier. It cannot be said that the trial judge failed to deal with Professor Katz's fourth affidavit. Whether it was right or wrong to reject the opinions does not turn on anything specific to the trial judge's treatment of Professor Katz, but on the accuracy of the assumptions underlying it or the inaccuracy of the trial judge's findings to the contrary. (There were other issues in the appeal about the trial judge's approach to Professor Katz's evidence in relation to the state of knowledge in the 1950's. In view of the concentration of the plaintiff, correctly, on the three principal obstacles to her factual success, namely the Bomaderry risk, the plaintiff's behaviour at Lutanda, and Dr Cooley, and the outcome of her arguments on these subjects, it is not necessary to consider the trial judge's treatment of Professor Katz further.)
117 So far as Dr Bull's evidence was to the same effect as Professor Katz's, on the specific issue under discussion it was rejected by the trial judge for similar reasons. In essence her assumptions, so far as they were based on Mr Sattler's affidavit or parts of the plaintiff's first affidavit, conflicted with the trial judge's findings on these subjects, on Sister Saville, and on the plaintiff's behaviour at Lutanda. Accordingly, Dr Bull's evidence could not assist the plaintiff's case in relation to her behaviour at Lutanda unless error was demonstrated on the findings about it which the trial judge made.
118 The plaintiff's submission about the plaintiff's behaviour at Lutanda was essentially that the child witnesses remembered the occurrence of the plaintiff's symptoms of attachment disorder so vividly that they should have been accepted; to the extent that the staff witnesses did not, that merely revealed their poor recollection; and so far as they denied the symptoms they were either hazy in recollection or self-interested.
119 Underlying these somewhat extreme submissions is a significant question. The trial judge was confronted with two bodies of evidence from the "Lutanda witnesses", ie the staff witnesses and the child witnesses, which, arguably, up to a point conflicted. After having regard to the fact "that recollection of childhood events may be distorted by various factors including the passage of time", the trial judge said: "I find that the evidence of the Lutanda witnesses was generally credible and reliable and I accept it accordingly" (Red 1/164T-U). Later he said: "Generally, as I have said, I find the Lutanda lay witnesses who gave evidence to be credible and reliable" (Red 1/242H). This being so, how was the conflict, if it existed, between the staff witnesses and the child witnesses to be reconciled?
120 The trial judge's findings that the plaintiff presented as a difficult child with some management problems but not as one requiring outside intervention appear at the end of the following passage (Red 1/192U-197S):
"Evidence of the plaintiff's behaviour whilst at Lutanda is extensive. I will refer to some of the evidence I specifically accept. A number of witnesses were pressed in cross-examination as to the emotional state of the plaintiff. Miss Milton, who was a junior leader of the girls under Miss Lewin, was asked (at T 162) whether she recalls the plaintiff having any emotional problems. She said she did not. Mrs Middleton, a well qualified carer in my view, was extensively cross-examined (at T 230) on her observations of the plaintiff's emotional and mental health. When asked whether the plaintiff's actions could be referable to her being a 'disturbed child' she replied that the plaintiff wasn't a 'disturbed child'. When asked whether it had ever occurred to her that the plaintiff suffered from symptoms of a deprived childhood she replied, 'No, emphatically no'. Later in cross-examination Mrs Middleton (at T 235) was pressed as to whether she thought that the plaintiff needed professional help:
MIDDLETON: 'No, and if you are talking about her being depressed, or anything like that, she was not a depressive type. She was a girl that succeeded, and she would go off and have a few hours on her own. But she would bounce back as good as ever.'
I accept Mrs Middleton's evidence. I am not satisfied that the plaintiff demonstrated any emotional, psychiatric or psychological problem warranting reference of the plaintiff to a third party. I am satisfied that had such a problem been discernible to the carers they would have referred her to a third party or to Dr Lovell for assistance. Nor did the educational authorities, the plaintiff's school or her school teachers make any report to Lutanda or any other recommendation expressing concern about the plaintiff's behaviour at any time during her stay at Lutanda, nor did any school authority apparently recommend referral to a third party such as a Child Guidance Clinic. More significantly, had the AWB been told anything by the Lutanda staff or through its representatives, if visited once a year or more and spoken to the Lutanda hands-on carers and or even the plaintiff herself, the position reported in respect of the plaintiff would not in my view have been other than as stated or understood by the Lutanda carers.
A number of witnesses were further pressed with respect to the plaintiff's behaviour being troublesome. The plaintiff through counsel submitted that I should find that the plaintiff was an extraordinarily troublesome child and an even more troublesome child than any other child at Lutanda with the exception of one child, Helen Frame, who was sent home from Lutanda to live with her parents. Turning to the evidence a proposition was put to Mr Frame that the plaintiff got into trouble more than anybody else. He replied that (at T 200):
FRAME: 'To my observation, she was in trouble pretty regularly, but I couldn't say more than anybody else.'
When further asked whether it was a fair description of the plaintiff that she was the naughty girl of Lutanda, he replied (at T 204):
FRAME: 'Not remembering everybody that went through Lutanda, I could not honesty say. I wasn't a worker, I was 10 years of age. I couldn't come to that.'
Turning to the workers, Mrs Hancock when pressed said she could not recall the plaintiff being in a lot of trouble (at T 215). Miss Moorhouse agreed with the proposition put to her (at T 356) that the plaintiff was by far the naughtiest girl at Lutanda. Her answer is qualified by the context of the questioning. It deserves to be set out:
MOORHOUSE: 'Yes, well, you know lots of teenagers get very rebellious when you are teenagers and I know she was a naughty girl, but there were, you know, most teenagers get rebellious, they don't want to do what their mothers tell them.'
HUTLEY: 'But she was by far the naughtiest girl at Lutanda, wasn't she?'
MOORHOUSE: 'I think so, yes, but as I said, her misdemeanours were not elaborated to me.'
From the context and preceding passages it seems clear that Miss Moorhouse was relying more on her impression of a general attitude held by the staff than on her own observations of the plaintiff. Not having had the misdemeanours elaborated to her refers to the fact that she is being asked about the nature of the plaintiff's behaviour having been a monthly visitor to Lutanda and not in relation to the time she spent working there. Indeed, when asked about alleged violent behaviour of the plaintiff she replies (at T 375) that she wasn't aware of it as she wasn't there at the time.
Mrs Middleton described Joy (at T 234) as a 'ringleader, or the stirrer, or whatever'. When pressed (at T 230) as to the plaintiff being more trouble than the other children she replied:
MOORHOUSE: 'I suppose she caused us more concern than any of the others, because no matter what you did for her she always seemed to have her own way.'
Later on the same page, when asked why she thought the plaintiff acted that way, she replied:
MOORHOUSE: 'That was just the way she was built. That was Joy.'
Mrs Buxton, also a well qualified carer whose evidence I accept, gave evidence that in her experience the behaviour of the plaintiff was perfectly normal for a 10 or 12 year old. She gave evidence (at T 389) that:
BUXTON: 'She would try me out, like any child, and when she eventually obeyed, that was fine.'
When it was suggested to her that the plaintiff was more bad tempered than others, she said (at T 390):
BUXTON: 'That didn't come through to me, but when you have got a group of children of any sort, you are going to have some more and some less disobedient, some more and some less sulky and so on. One accepted the fact that children were all different and accommodated it.'
Mrs Buxton (at T 378) gave the further following evidence in examination in chief about the nature of the plaintiff's emotional and mental health:
BARRY: 'When you were looking after Joy did you think that she was in need of any psychiatric treatment?'
BUXTON: 'No.'
BARRY: 'Why not?'
BUXTON: 'She wasn't clinically depressed. She wasn't in need of psychiatric care. She was a normal teenager to my mind.'
BARRY: 'Did you think that there was any need for outside intervention, by that I mean from a psychologist, of a psychiatrist, or a doctor, in relation to her management when you were looking after her?'
BUXTON: 'No.'
BARRY: 'Why not?'
BUXTON: 'Because she was, to my mind, a fairly normal teenager. She was a little bit more moody sometimes, but that's normal enough. Children get moody in their teenage years. She didn't stand out as a person who needed any of that.'
BARRY: 'Did you think that you were able to manage her?'
BUXTON: 'Yes.'
Mrs Middleton and Mrs Buxton were very good and impressive witnesses. Both were trained and qualified nurses and had spent a great deal of time with the plaintiff observing her and caring for her. Mrs Buxton was a triple qualified nurse I would observe in passing that when Mrs Buxton was trained in, inter alia, infant welfare, in 1949, she was not lectured on the subject of maternal deprivation.
I am not satisfied that any evidence of Mr Sattler, as set out above, impacts on the reliability of the evidence of Mrs Buxton, Mrs Middleton or the other witnesses who testify about the plaintiff's behaviour. Where there is conflict between Mr Sattler and Mrs Buxton or Mrs Middleton, I reject Mr Sattler. Mrs Buxton and Mrs Middleton were medically trained and their opinions, being contemporaneous and arising from their daily care of the plaintiff should be given great weight. I am satisfied on all of the evidence that the plaintiff was not an extraordinarily troublesome child whilst at Lutanda. I accept the defendants' submission that the overall effect of this evidence, while it showed that the plaintiff did present as a difficult child with some management problems, is that the plaintiff did not present as a child who required outside intervention."
121 The trial judge also said (Red 2/268V-269G):
"The views of the Lutanda lay witnesses are human observations of experienced able child carers at the time. Their opinions are based on time spent with the plaintiff over a number of years and upon the care they have given to her during that time. Mrs Middleton, Mrs Buxton and Mrs Moorhouse were trained nurses and experienced, practical child minders, qualified to observe and supervise the health and behaviour of their charges. I accept their opinions, for the reasons stated elsewhere, that the plaintiff was not a troublesome child and was not a depressed or disturbed child. I repeat the finding that nothing in the lay evidence leads me to conclude that the plaintiff exhibited behaviour and which reasonably suggested a need for third party intervention or referral to a third party."
122 The submission was that the evidence of the Lutanda child witnesses, which the trial judge found acceptable, was "overwhelming" in its support for the conclusion that the plaintiff displayed symptoms of attachment disorder, and "his Honour never dealt with that material". In particular, he made "no reference to the evidence of Mrs Godfrey or Mrs Tucker and only to two questions of Mr Frame".
123 It is not entirely clear whether the submission was put on the basis that the trial judge had failed to give reasons for his conclusion, or that his statement of reasons was such as to reveal error. A contention that he had failed to give reasons must be rejected: numerous reasons were identified in the passage quoted above. If the criticism was that the statement of reasons revealed error, the error assigned was apparently that the trial judge ought to have accepted the child witnesses over the evidence he did accept (Miss Milton, Mrs Middleton, Mr Frame, Miss Moorhouse and Mrs Buxton), and if he had, the assumptions made by Professor Katz would have been made good, and the trial judge would have had to accept his opinions based on them. The trial judge's failure to refer to the child witnesses' evidence caused the error of not giving them any weight.
124 The plaintiff said this issue was "the heart of the case" below and "was dealt with in extenso in our submissions at first instance". A submission on appeal that a vital contention at trial was not dealt with is a submission which, if made out, often attracts sympathy on appeal. But is that submission sound here?
125 The judgment was 432 pages long. This particular part of it comprises about seven pages. That is not a disproportionate response to the role played by the submission below in the totality of the plaintiff's submissions.
126 The plaintiff's case on appeal in this and other respects was much simpler and clearer than the case put at trial. At trial the plaintiff's written submissions in chief, for example, were 140 pages in length. The present submission leaves behind numerous issues raised below but not now pressed, not only in the case as a whole, but specifically in relation to Lutanda, as to the inhumanity of Lutanda and the plaintiff's self-mutilation. The plaintiff's written submissions below on the present point encompassed only four pages out of the 140 (Black 4/910-913). The evidence relied on for the nine Bowlby symptoms identified was a mixture of evidence from the Lutanda staff (including such persons as Mrs Buxton and Mrs Middleton, whom the trial judge viewed very favourably, and Mr Sattler, whom he did not) and child witnesses (Mrs Godfrey, Mr Frame, Mrs Tucker and others). The plaintiff put the present argument below, though it ran the risk of being seen as relatively minor amid a mass of horrific allegations only some of which were by degrees withdrawn and all of which in any event had to be dealt with if only to protect the reputation of their targets. But the plaintiff did not put its argument below as turning on any need to choose between Lutanda children and Lutanda staff: representatives of each category were selected to support the argument. It is thus not surprising that the trial judge did not couch his analysis in terms of making a choice between the two classes of witness.
127 The trial judge obviously heard all the evidence in question. He intervened in the cross-examination with his own questions. He ruled on numerous objections made by the plaintiff's counsel to questions put by the defendants' counsel in re-examination. He cannot have overlooked the relevant evidence. In other parts of the judgment he refers to parts of the evidence of Mrs Godfrey and Mrs Tucker, as well as Mr Frame and other Lutanda children (eg Red 1/179W-180C, 181F, 182F, 183B-P, 184H-Q,187H-V, 190W-192M, 200E-R, 207E-K, 208H-X, 21-N-V and 227Q-S). The trial judge made it plain (Red 1/192V) that, of the extensive Lutanda evidence, he would only refer to some which he specifically accepted. He referred (at Red 1/194D) to a "number of witnesses" being pressed about the plaintiff's troublesome behaviour, and this appears to be a reference to the child witnesses, because two paragraphs later the trial judge commences an analysis of the staff evidence by saying: "Turning to the workers …".
128 The trial judge did not have to set out in detail the evidence of every witness and explain why the detail of one should be preferred to that of another. His duty was to apprise the parties of the broad outline and constituent facts of the reasoning on which he proceeded. In my opinion he did that in a manner not revealing any appellable error.
129 Had he gone into greater detail, and had he analysed the evidence of each witness, would his conclusion have been different?
130 One difficulty is that the Bowlby Report's descriptions of many of the symptoms are vague and evaluative, and that in similar fashion much of the evidence critical of the plaintiff's behaviour was put in explicitly evaluative terms, not objectively and precisely factual terms. Expressions used in the Bowlby Repot (Blue 11/3623) like "egotism", "sexual misdemeanours", "exasperating" conduct, and a "lack of concern" convey concepts which will vary in their formulation and application from mind to mind. The evidence relied on by the plaintiff was often in like case. Thus Mrs Tucker spoke of the plaintiff as "bad tempered", "always in strife", "always rebelling", "didn't seem to ever learn", "very disobedient", "very often disruptive", "most disruptive child", "most violent child", "most disobedient child", "naughtiest child", "pretty obnoxious" and "pretty disinterested [sic] in school". In contrast, the only specific evidence she gave was about punching, pulling the hair of, fighting with and kicking other children; about pushing children off swings and disrupting board games; about whistling to boys and about running away with a boy (Black 2/323-333). The point is that the exercise of selecting between the recollections of a large number of witnesses where words of evaluation predominate (particularly in relation to an establishment seeking to bring children up in "a rather strict moral code" (Black 2/330W)) and where the evidence of precise acts reveals acts characteristic of many ill-behaved but healthy teenagers is a difficult exercise of judgment.
131 Another difficulty is that the evaluations were not all one way. Mrs Tucker accepted many of the critical expressions contained in the leading questions put to her, but also said that "There were times when she was really nice and she was nice when she was nice", that towards the end of her time "she was mellowing a little bit", and that she "could be [co-operative] if she wanted to be" (Black 2/327U). Her "violence tapered off" from the age of fourteen. Mrs Godfrey said: "When she was good she was lovely" (Blue 2/459T) and "It was not that Joy was a terribly bad child it was just that she had a terrible temper" (Blue 2/459L). "[She] got on well with other children" (Blue 2/459N-P). "Joy could be as good as the rest of us were as children" (Black 2/305J). Mrs Godfrey "was very timid, quiet, but frightened", and if there was a fight, the plaintiff "more or less came over the top of me as like a protector. If there was a fight I would get behind her and she would more or less be there, what do you call it? I can't put a word to it, but she was always there to protect me" (Black 2/305P-R). "I can't really remember that she got into a lot of trouble as a young child" (Black 2/306L). "She could be as good as the [rest] of us" (Black 2/308W). "[In] her teens, to me she seemed to quieten down" (Black 2/312E).
132 Further, some of the specific incidents suggest that absolute judgments of adverse evaluation are inappropriate. The plaintiff wore very thick glasses and "If someone called her four eyes" she would attack them (Blue 2/459). Mrs Godfrey said: "we weren't all angels. We all did our things against Joy too. We fought with her" (Black 2/320L).
133 The plaintiff's submission that the child witnesses had sharp and clear recollections while the staff witnesses were unable to remember much has a false precision. Each of the three child witnesses on whom the plaintiff's submission was particularly dependent admitted unsurprising difficulties of recollection in particular respects (Mr Frame: Blue 2/409S; Black 2/205Q and T-U; Mrs Godfrey: Black 2/312G and 313N; and Mrs Tucker: Black 2/328W). Many of the staff witnesses had precise recollection of some things.
134 Yet a further difficulty about the terms of adverse evaluations applied to the plaintiff is that they were applied by the witnesses to most of the children. It was a question for the trial judge whether the plaintiff differed from the others only in degree or in kind. Thus Mrs Godfrey said: "Like the rest of us she would get a smack and a strap if she misbehaved" (Blue 2/458: emphasis added). Other children ran away (Blue 2/460C). Others stole (Blue 2/461K). "Several of the children had behavioural problems" (Blue 2/467D). Helen Frame's misbehaviour equalled or was worse than the plaintiff's (Blue 2/467D and M-Q; Black 2/310E-H and 327D). "All children have fights" (Black 2/305T). She was not the only child who failed to return to the class room when the bell rang (Black 2/318P-T). She was not the only girl who behaved as she did towards boys (Black 2/319H-J). She was not the only child who pinched other children and distracted them in church (Black 2/320H-L).
To Mrs Godfrey she did not "appear … to be any different from any of the other children" (Black 2/320R).
135 The behaviour observed by both the staff and the child witnesses took place so long ago, and in particular circumstances of a fairly strict institution peopled by unfortunately abandoned children, that any account of it must involve an element of interpretation. All items of behaviour pointed to - and all combinations of them - are not uncommon now, and were not uncommon then, among children without any disorder. Neither the children nor the staff saw the behaviour as abnormal. They saw it as irritating, vexing and troublesome, but not abnormal. As between the staff and the children, the staff saw the behaviour as less irritating than the children. Though the trial judge did not put it in these terms, the sharp and isolated memories which middle aged adults can summon up of some highlights in their youth are not necessarily superior to the recollected perceptions of the adults looking after them even though the latter might be less sharp and more generalised. While the trial judge "accepted" all the Lutanda witnesses, he made specific findings favourable to the credibility on many issues of Mrs Buxton (see above), Mrs Middleton (see Red 1/193M and below) and Miss Moorhouse (Red 1/162P-U). This controversy between the parties created a task of reaching an evaluative judgment which was pre-eminently a matter for the trier of fact. The trial judge had to bring to that task his entire experience of life - his experience of observing and hearing about the behaviour of children throughout his life. He also had to bring to bear his extensive experience, at the bar and on the bench, of assessing where the truth lay in testimony about factual disputes. Here the testimony was from middle aged witnesses purporting to remember their perceptions forty or fifty years ago as young children of themselves and the plaintiff, and from old people purporting to remember their perceptions forty or fifty years ago as mature adults of those children and the plaintiff.
136 The trial judge's findings do not enjoy the partial immunity from appellate review which would spring from a preference for one set of witnesses, whom he believed, and a rejection of another set, whom he disbelieved, in each case on grounds of demeanour. Nor are the trial judge's findings exposed to the much greater chances of appellate intervention which would arise if they were inferences from established primary fact. The findings rather fell into a category described as follows by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 in a passage applied in the joint judgment of Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd (1996) 140 ALR 227 at 229:
"The trial judge, although not depending in any respect on the credibility of any witness, may have preferred one possible view of the primary facts to another as being in his opinion the more probable. Such a finding may, in my opinion, be disturbed by an appellate court but this should only be done if other probabilities so outweigh that chosen by the primary judge that it can be said that his conclusion was wrong."