Williams v The Minister Aboriginal Land Rights Act 1983 and The State of New South Wales

Joy Williams (Appellant) PARTIES : The Minister Aboriginal Land Rights Act 1983 (First Respondent) The State of New South Wales (Second Respondent) JUDGMENT OF : Spigelman CJ at 1; Sheller JA at 2; Heydon JA at 3

LOWER COURT JURISDICTION : Supreme Court LOWER COURT CL 10257/93 FILE NUMBER(S) : LOWER COURT Abadee J JUDICIAL OFFICER :

COUNSEL : N C Hutley SC/C E Adamson (Appellant) C T Barry QC/D Cowan (Respondents) SOLICITORS : Frances Gibson, Kingsford Legal Centre (Appellant) State Crown Solicitor (Respondents) CATCHWORDS : Negligence - Duty of care of Aborigines Welfare Board to ward - Statutory system for protection of Aboriginal children - Aborigines Protection Board 1909 (NSW). - Negligence - Breach by Aborigines Welfare Board of duty to ward - Whether child at risk of attachment disorder - Failure of Board to advise institution in which child was cared for of risk of attachment disorder - Failure of Board to inquire about occurrence of symptoms of attachment disorder - Whether symptoms of attachment disorder existed - Whether attachment disorder existed. - Negligence - Causation - Whether symptoms of attachment disorder observable. - Negligence - Causation - Whether a Child Guidance Clinic would have observed symptoms of attachment disorder. - Negligence - Damages - Exemplary damages - Whether conscious and contumelious disregard for child's health by Aborigines Welfare Board. - Negligence - Damages - Aggravated damages - Whether circumstances of aggravation - Conduct of Aborigines Welfare Board. - D Aborigines Protection Act 1909 (NSW) LEGISLATION CITED : Evidence Act 1995 (NSW) Limitation Act 1969 (NSW) Supreme Court Act 1970 (NSW) AB v South West Water Services Ltd [1993] QB 507 Alcock v Chief Constable of South Yorkshire Police A Lewis & Company (Westminster) v Bell Property Trust Ltd [1940] 1 Ch 345 [1992] 1 AC 310 Biogen Inc v Medeva plc [1997] RPC 1 Briginshaw v Briginshaw (1938) 60 CLR 336 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Caltex Oil (Australia) Pty Ltd v The Dredge 'Willemstad' (1976) 136 CLR 529 Chappel v Hart (1998) 195 CLR 232 Cubillo v Commonwealth of Australia [2000] FCA 1084 Erven Warnink BV v J Townend & Sons (Hull) Ltd [1979] AC 731 Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455 Griffiths v Kerkemeyer (1977) 139 CLR 161 Halford v Price (1960) 105 CLR 23 Hawkins v Clayton (1988) 164 CLR 539 Hill v Van Erp (1997) 188 CLR 159 Holt v Wynter [2000] NSWCA 143 CASES CITED: Jones v Sutherland Shire Council [1979] 2 NSWLR 206 Kralj v McGrath [1986] 1 All ER 54 McLoughlin v O'Brian [1983] 1 AC 410 Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359 Morris v London Iron and Steel Co Ltd [1988] QB 493 Mutual Life and Citizens' Assurance Co Ltd v Evatt (1968) 122 CLR 556 Perre v Apand Pty Ltd (1999) 198 CLR 180 Re O'Neil [1972] VR 327 Rehsa Shipping Co SA v Edmunds [1985] 1 WLR 948 Shaddock v Parramatta City Council (1981) 150 CLR 225 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 Stovin v Wise [1996] AC 923 Sutherland Shire Council v Heyman (1985) 157 CLR 424 White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 Williams v Minister, Aboriginal Land Rights Act 1983 (Studdert J, unrep, 25 August 1993) Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 X v (Minors) v Bedfordshire County Council [1995] 2 AC 633 Zuvela v Cosmarnan Concrete Pty Ltd (1996) 140 ALR 227 DECISION : Appeal dismissed with costs.

• 101 - THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

JOY WILLIAMS v THE MINISTER ABORIGINAL LAND RIGHTS ACT 1983 AND THE STATE OF NEW SOUTH WALES

The appellant was born in 1942. Her mother was an Aboriginal woman aged 18; her father, the soldier son of her mother's employer, was of Irish descent. Her parents did not marry. With the consent of her mother, she was placed under the control of the Aborigines Welfare Board pursuant to s 7(2) of the Aborigines Welfare Act 1909 shortly after her birth.

The appellant was placed by the Board with the United Aborigines Mission at its Aborigines Children Home at Bomaderry. In 1947, while still a ward and aged four and a half years, the appellant was transferred to the Lutanda Children's Home, a home conducted by the Plymouth Brethren. She left Lutanda in 1960.

The appellant claimed that she had suffered harm as a result of her childhood experiences. At trial she contended that the Aborigines Welfare Board had committed trespass in taking her and keeping her at Bomaderry; that the Board failed to adequately supervise her at Bombaderry and Lutanda; that the Board failed to recognise that she suffered an attachment disorder arising from maternal deprivation; and that the Board failed to arrange medical treatment for her which would have avoided the development of Borderline Personality Disorder in later life.

The appellant claimed that the conduct of the Board was in breach of its duty of care, in breach of its statutory duty, in breach of its fiduciary duty to her and that it had caused her damage, which included psychiatric injury and emotional and psychological problems. She claimed exemplary and aggravated damages as well as compensatory damages.

The trial judge held that no common law duty of care was owed by the Board; that there was no actionable statutory duty; that the Board did not owe the appellant any fiduciary duty; and that even had any of these duties been owed to the appellant, none was breached. He held that the authorities at Bomaderry and Lutanda had not conducted their institutions unsatisfactorily, that the appellant's behaviour at Bomaderry was normal, and that no emotional or psychiatric condition would have been diagnosed had she been taken for medical assessment at that time. He held that in any event the appellant was not entitled to aggravated or exemplary damages.

The appellant appealed to the Court of Appeal. The case propounded to the Court of Appeal differed from that advanced at earlier stages in the proceedings. The principal differences between the case as originally propounded and that advanced in the Court of Appeal were:

(i) The focus of complaint on the treatment of the appellant by reason of her aboriginality was replaced by a focus on the effects of maternal deprivation on any child.

(ii) The assertion that the appellant was a member of the stolen generation was abandoned.

(iii) Criticism of the care and attention she received at Lutanda was replaced, in large measure, by reliance on the good will of the staff at that institution.

(iv) The attack on the then government policy of assimilation was replaced by reliance on that very policy as supporting the existence of a duty of care.

On the appeal the appellant contended inter alia that: (1) the understaffed conditions to which she was subject at Bomaderry, where she lived from the age of four weeks to four and a half years, subjected her to a risk of attachment disorder arising from maternal deprivation; (2) the appellant's behaviour at Lutanda demonstrated symptoms of attachment disorder which the appellant's carers at Lutanda would have recognised had the Board carried out its duty to advise them of the risk and of the potential symptoms; (3) had the carers recognised the symptoms, the appellant would have been taken to a Child Guidance Clinic; and (4) the treatment the appellant would have received as a client of a Child Guidance Clinic would have reversed the attachment disorder from which the appellant suffered and prevented the development of Borderline Personality Disorder.

(1) that the trial judge had not erred in not finding that the appellant was at risk of suffering from attachment disorder in consequence of her experiences at Bomaderry (paragraphs [69]-[98]);

(2) that the trial judge had not erred in finding that the appellant was not suffering from attachment disorder at Lutanda and in finding that she had not displayed symptoms of attachment disorder there (paragraphs [99]-[142]);

(3) that even if the appellant was suffering from attachment disorder at Lutanda, it had not been shown that referral of her to a Child Guidance Clinic would have detected the disorder (paragraphs [143]-[157]).

Observation, in relation to the claim for exemplary and aggravated damages, that the evidence fell far short of establishing a conscious and contumelious disregard for the appellant's health on the part of the defendants or circumstances of aggravation (paragraph [159]).

Consideration of factors relevant to recognising a common law duty of care in relation to the statutory system for the protection of Aboriginal children (paragraphs [160]-[171]).

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SPIGELMAN CJ SHELLER JA HEYDON JA

JOY WILLIAMS v THE MINISTER ABORIGINAL LAND RIGHTS ACT 1983 AND THE STATE OF NEW SOUTH WALES

1 SPIGELMAN CJ: I agree with Heydon JA. 2 SHELLER JA: I agree with Heydon JA. 3 HEYDON JA: Background 4 This is a very sad case, and a very hard case. 5 The plaintiff appeals against a verdict for the defendants given by Abadee J in the following circumstances. 6 The plaintiff's mother was an Aboriginal aged 18 who was a ward of the Aborigines Welfare Board from the ages of 7 to 18. She had been brought up in a home run by the Board at Cootamundra. When she left it at the age of 15, she began to work as a domestic servant. The son of her employer, a non-Aboriginal soldier, had a sexual encounter with her. As a result, when the mother was 18, the plaintiff was born on 13 September 1942. The plaintiff's parents never married. The plaintiff has never met her father or his family. 7 On 12 October 1942 the plaintiff's mother left hospital. On 13 October 1942, with the consent of the plaintiff's mother, the Board placed the plaintiff in the custody of the United Aborigines Mission ("UAM") at its Aboriginal Children's Home at Bomaderry. 8 On 16 April 1947, with the consent of the plaintiff's mother, the plaintiff was transferred from the Aboriginal Children's Home at Bomaderry to Lutanda Children's Home, conducted at Wentworth Falls by the Plymouth Brethren. She moved with that Home to Pennant Hills in 1950. She attended primary school and Hornsby Girls' High School. She was discharged from Lutanda on 31 July 1960. 9 From that time on, although the plaintiff has achieved such successes as obtaining university qualifications in the 1990's and publishing poetry, and although there may have been intervals of happiness not recorded in the evidence, the plaintiff's life has been profoundly miserable. The evidence about it is extremely depressing. She had jobs, but failed to maintain regular employment. She engaged in prostitution. She associated with men, and women, of unsatisfactory character. She drank heavily, to the point of alcoholism. She used drugs at various times. She was convicted of criminal offences. She spent some months in gaol. She was admitted to psychiatric hospitals on numerous occasions. She had three children from three different fathers and two unhappy marriages. It proved impossible for her to bring up any of her children continuously. The oldest was placed in a home for adoption at the age of 9 months. The second was admitted to Lutanda at the age of 2. The third was committed to the care of the State at the age of 3½ months as a neglected child. In various ways at least the second child and the third child have had unhappy and troubled lives. The plaintiff threatened suicide repeatedly. There was evidence that she suffered from Borderline Personality Disorder, a severe behavioural disorder, from at least 1962 to 1997. On 23 March 1999 she was diagnosed as suffering from a psychotic reaction not alleged to be caused by the defendants. On 8 April 1999, shortly before the trial began, she was found to be for that reason unfit to give oral evidence or instruct her legal advisers reliably. She did not in fact give oral evidence. 10 At the trial the plaintiff contended, among many other things, that the Board had committed trespass in taking her to and keeping her at Bomaderry; that the Board had failed adequately to supervise her at Bomaderry and Lutanda; that if it had, by making appropriate inquiries of the staff in each place, it would have realised by 1952 at the latest and probably an earlier time, that her misbehaviour was exhibiting classic symptoms of an attachment disorder pointing to a risk of suffering Borderline Personality Disorder in later life; that it could and should have arranged for her to have medical treatment at a Child Guidance Clinic which would have avoided the risk of Borderline Personality Disorder; that the conduct of the Board placed it in breach of a duty of care, in breach of statutory duty and in breach of fiduciary duty to her; that those breaches had caused her damage; that damages of up to $2,486,612, and in addition general damages, should be awarded to her; and that the defendants were liable to pay aggravated and exemplary damages as well. 11 The trial lasted fifteen days. It involved lengthy oral and documentary evidence, including complex expert evidence. There were about 5,000 pages of exhibits and 812 pages of transcript. The parties put detailed legal submissions on difficult points as well as detailed factual submissions, both oral and written. The trial judge reserved judgment for what was, in the circumstances, the commendably brief period of less than four months. While he did not accede to some of the defendants' arguments, he rejected most of the arguments propounded by the plaintiff. He held that there was no trespass. He held that no common law duty of care was owed by the Board. He held that there was no actionable statutory duty. He held that the Board did not owe the plaintiff any fiduciary duty. He held that even if any of these duties were owed, none was breached. In particular, he held that the authorities at Bomaderry and Lutanda had not conducted their establishments unsatisfactorily, that the plaintiff's behaviour at Bomaderry and Lutanda was normal, and that no psychological or psychiatric condition would have been diagnosed had she been taken to a Child Guidance Clinic in those years. He held that even if there had been any breach of duty, it was not shown to have caused loss to the plaintiff. He held that even if there had been any breach of duty causing loss, she was entitled to recover as actual damages only $100,000 plus interest ($50,000 for general damages; $35,000 for past economic loss; $10,000 for past care pursuant to Griffiths v Kerkemeyer (1977) 139 CLR 161; and $5,000 for past medical expenses). Finally, he held that she was not entitled to aggravated or exemplary damages.

Procedural aspects: extension of limitation period 12 Several aspects of the proceedings, both before the trial and during it, were highly unusual, and highly significant in its outcome. 13 First, the Court of Appeal, reversing Studdert J, extended the limitation period for the non-equitable claims by about three decades pursuant to s 60G of the Limitation Act 1969 (NSW): Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497. The delay in starting and prosecuting the proceedings was not shown to be the result of any substantial fault by any party. But the consequence was that in a trial conducted in 1999 which centred on events in the years from 1942 to 1960 the court was hampered by the loss of many primary records, by the absence of potential witnesses by reason of their deaths or otherwise, by the fact that some very aged persons whose evidence was taken were not cross-examined, and by the great age of some witnesses who were cross-examined. The trial judge summarised the position thus (Red 1/369D-L): " … it is common ground that relevant material documents are missing, there are few records remaining from Lutanda; school records have not been produced; there are minimal records from the Women's Hospital; there are few records from Bomaderry; and incomplete records exist from the AWB. Furthermore, important witnesses are dead or not available including Mr Murray from Lutanda; Mr Reid who is dead; Miss Atkinson, a person to whom it is said there could have been an 'attachment' in 1953, and Dr Lovell who was an Honorary medical officer for Lutanda and from whom no records were obtained." 14 The absence of records from Lutanda and from the Board is obviously very important, but of perhaps greater importance is the absence of school records. A crucial factual issue in the case is whether the plaintiff was, between 1952 and 1960, a child who presented only "as a difficult child with some management problems" but not "as a child who required outside attention" (as the trial judge held at Red 1/197P-S), or a child showing unmistakable symptoms of attachment disorder (as the plaintiff contended). The plaintiff criticised the trial judge's reliance on the evidence of the Lutanda staff. The members of the staff were, as the trial judge said, "experienced and trained carers" (Red 1/197T). But they were looking after children who, as some of them said, were often naughty. Records from the plaintiff's primary or secondary schools would have cast light on her behaviour as observed by experienced and trained school teachers in comparison with children not all of whom could have been naughty and most of whom would have come from more conventional family backgrounds. The plaintiff discounted the significance of the school records by saying that she was largely absent from school. This answer is not wholly convincing. While there was certainly evidence of some unauthorised absence from school, she was there long enough to pass English in the Intermediate Certificate examinations and to gain sufficient basic training to obtain tertiary qualifications many years later. Persistent absence would have been conduct which the schools had a duty to investigate. 15 It is of some importance to compare, in three relevant respects, what happened at the trial with what was thought likely to happen at the trial by the majority of the Court of Appeal when it extended the limitation period in 1994. 16 First, the defendants in the course of the appeal made frequent submissions about the impermissibility of drawing inferences against the Board in view of the lapse of time. These submissions centred on the unavailability of a key officer who dealt with the plaintiff and her mother, Mrs English, and of other persons who might have been able to explain the Board's conduct and illuminate its state of mind. Studdert J said (unreported, 25 August 1993, pages 33 and 34): "The staff of the Board in 1947 was relatively small but one only has to look at the dates of appointment of the various staff members to realise how old any of those public servants would be if they were still alive and traceable and there is no evidence as to these matters one way or the other … … Even if any Board member involved in the making of the relevant decision is still alive and traceable, in the absence of records it would be unrealistic to expect such a member to be in a position to give useful evidence." 17 The picture as seen by Studdert J moved him to ask the following questions (page 35): "How can the defendants now prove what were the reasons behind the relevant decisions and actions of the Board of which the plaintiff complains? How can the defendants set about the task of trying to defend what was done if they cannot prove why the Board acted as it did?"

In this respect events at the trial caused the dashing of the hopes expressed in the following passage in Kirby P's reasons for judgment in (1994) 35 NSWLR 497 at 513G: "The Board was quite a small body. Responsibility for its activities was to the Chief Secretary's Department. The names of the officers (together with their dates of birth and first appointment) are contained in the Public Service List which was in evidence before Studdert J. Whilst many of those who served on and for the Board in the 1950s would by now have died, it is a reasonable inference that many would still be alive (in their seventies or older), capable of explaining the way the Board conducted itself in respect of 'aborigine children'". 18 Secondly, the plaintiff on the appeal sought to deal with the evidence of witnesses, being persons who served on the staff at Lutanda and gave evidence adverse to her case, by pointing to their supposed haziness of memory in contrast to the supposedly more favourable evidence from other witnesses with supposedly better memories, being children raised at Lutanda. Ironically, in one of the many reversals of position which the parties, and particularly the plaintiff, executed in this case, these witnesses, attacked by the plaintiff on the appeal, were the subject of the following passage in Kirby P's reasons for judgment in (1994) 35 NSWLR 497 at 513-4: "Since the hearing before Studdert J, the solicitors for Ms Williams have conducted further inquiries concerning the availability of witnesses, or potential witnesses. Those inquiries revealed that a number of persons who served at Lutanda during Ms Williams' assignment there, are still alive. They are said to have indicated a clear memory both of their time at Lutanda and of Ms Williams." 19 Thirdly, Kirby P also said of the efforts of the plaintiff's solicitor between the hearing before Studdert J in 1993 and the Court of Appeal hearing in (1994) 35 NSWLR 497 at 514: "Similarly, the solicitor has tracked down the medical officer who admitted Ms Williams in the 1960s to the Macquarie Hospital. He is Dr Neville Yeomans, now in practice in Darwin. He had an independent recollection of Ms Williams and believed that he would be able to give evidence concerning her condition, if able to refresh his recollection from the hospital records. Those records have also been placed before this Court."

Dr Yeomans did not give evidence before the trial judge. 20 The trial judge's conclusions as to the effects of delay in bringing the proceedings, when read with the authorities decided since the Court of Appeal extended the limitation period in 1994, suggest that were a similar matter to arise now, the outcome of an application to extend the limitation period may well be different. In Holt v Wynter [2000] NSWCA 143, Meagher JA, Handley JA and Brownie AJA, but not Priestley JA, agreed with Sheller JA's conclusion that in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, not only McHugh J, but also Dawson J and Toohey and Gummow JJ, were of the view that if a defendant were in a position of serious or significant prejudice it was not open to a court to extend time: see in particular [111]-[115] and [119].

Procedural aspects: the unavailability of the plaintiff 21 Though two affidavits of the plaintiff were filed, she was too ill to attend for cross-examination on their contents. Despite this, the defendants did not oppose their reception, and in particular did not ask either that they be not admitted as a matter of discretion under s 135 of the Evidence Act 1995 (NSW) or that they be subject to limiting orders under s 136. 22 The case depended on a close examination of the plaintiff's experiences, emotions and thoughts. The unavailability of the plaintiff meant that best evidence on those subjects was absent. Great potential difficulties were created for the trial judge. In ordinary circumstances the non-availability of the plaintiff for cross-examination on the affidavits would have caused him to have used great caution in relying on them: Re O'Neil [1972] VR 327 at 333. There were particular reasons why even greater caution than normal had to be employed in view of the different forms taken by succeeding versions of the Statement of Claim, the radical changes in the factual position advocated by her advisers, and the near-contradictory contentions they advanced as to why the defendants were liable.

Procedural aspects: the evolution of the Statement of Claim 23 The pleaded case has taken four forms. The first was that alleged in the draft Statement of Claim considered by Studdert J when he refused to extend the limitation period and by the Court of Appeal when it allowed an appeal. The second was that alleged in the actual Statement of Claim filed pursuant to that outcome. The third was that alleged in the Amended Statement of Claim, which came into being some time later. The last was that alleged in the Further Amended Statement of Claim, dated 12 March 1999 (shortly before the trial began on 19 April 1999). 24 The principal differences between the case as originally propounded and that advanced in this Court are:

(i) The focus of complaint on the treatment of the plaintiff by reason of her aboriginality was replaced by a focus on the effects of maternal deprivation on any child.

(ii) The assertion that the plaintiff was a member of the stolen generation was abandoned.

(iii) Criticism of the care and attention she received at Lutanda was replaced, in large measure, by reliance on the good will of the staff at that institution.

(iv) The attack on the then government policy of assimilation was replaced by reliance on that very policy as supporting the existence of a duty of care. 25 The case presented in the draft Statement of Claim annexed to the Notice of Motion considered by Studdert J and the Court of Appeal was summarised thus by Kirby P (1994) 35 NSWLR 497 at 500A-C: "Ms Williams identifies herself as an Australian Aboriginal. Certainly, her mother was Aboriginal and she is of Aboriginal descent, to some degree. She complains that decisions were made in 1947 by the Board for Protection of Aborigines, for which the respondents are liable, which caused her serious psychological and other physical disturbance and damage. Her case is that such damage flowed from her wrongful removal, first from her mother and then from an institution caring for Aboriginal children, into an institution run by the Plymouth Brethren religious community exclusively for 'white' (that is European descended) children. Ms Williams contends that this decision, made primarily for the irrelevant consideration of the fair colour of her skin, can not only be seen as wrong by the standards of today, but also on the material available to the Board in 1947 and thereafter."

On this case the plaintiff was a member of the stolen generation, and was a victim of undesirable, and unlawful, assimilation policies. Kirby P also identified her case as resting on the violence, excessive discipline and racism she said she suffered at Lutanda. Kirby P quoted part of Dr B Waters' report of 22 October 1991 which appeared to attribute her Borderline Personality Disorder to: "psychological abuse, often, but not necessarily, associated with physical and sexual abuse and neglect. The typical pattern of parenting recalled is of rejection, terrorising, neglect, ignoring (etc), most of which are reported by Ms Williams" (at 502E).

That conclusion also flows from the parts of the draft Statement of Claim which Studdert J quoted in his judgment (pages 11-14). The case so far as it was to rest upon the assimilationist policies of the Board was evidently to be supported by one Dr Read who, according to a quotation from his evidence by Powell JA, was of the view that the transfer of the plaintiff to Lutanda "even in the light of information and knowledge then available was a wholly unreasonable decision and based on an irrelevant factor, her fair skinned complexion": 520G. In the event, Dr Read never gave evidence, and the quoted evidence would have been wholly irrelevant to the changed case of the plaintiff at trial and on appeal. 26 The Statement of Claim as filed may well have changed radically in form from that of the draft Statement of Claim, which received criticism in the Court of Appeal: (1994) 35 NSWLR 497 at 516. 27 The Amended Statement of Claim made further changes the nature of which does not appear from the appeal books. 28 The Further Amended Statement of Claim appears to have retained the elements pleaded in the Amended Statement of Claim, and to a limited extent to have expanded on them, but added in some considerable detail a case of which there were only traces before. The new case was based not on a failure of the Board to appreciate the difficulties of the plaintiff as an Aboriginal in a non-Aboriginal setting at Lutanda, but on a failure of the Board to pay attention to the dangers faced by the plaintiff, not so much as an Aboriginal but as a child, arising from early separation from her mother and from going into institutions which failed to give her an opportunity to form a close emotional attachment to a caring adult. This largely new case, described on appeal as the Dr Bowlby case, was put in three ways. One turned on the removal of the plaintiff from her mother. The second turned on the placement of the plaintiff in Bomaderry. The third turned on moving the plaintiff to Lutanda and on what happened to her there. Underlying these allegations was a contention that the psychiatric dangers of maternal deprivation were or ought to have been well known to the Board from 1942 on.

Procedural aspects: the collapse of the plaintiff's credibility and the change in her case at the trial 29 At the moment when the trial opened, an observer might reasonably have thought that a significant part of the plaintiff's case as pleaded and as supported by her affidavits was that, as the defendants put it in their written submissions handed up in final address in an attempt to meet the case they thought they had to meet, Lutanda "was a cruel and violent place where children were treated like numbers and not human beings and where they were subjected to a repressive regime of intimidation, beatings and assaults" (Black 5/1007T-V). 30 This case was put in two ways. The first way of putting it rested on a number of quite specific allegations of very serious misconduct, some of it criminal. The other way was more generalised, but equally denigratory. The first way in which the plaintiff's case was put in her affidavits was that those running Lutanda had permitted or perpetrated sodomy on the plaintiff and others, gang rape on the plaintiff, and other sexual misconduct; had punished the plaintiff for wearing lipstick by making her stand naked in the dining hall; had punished the plaintiff for cleaning her glasses on her apron by making her stand in the corner with her arms above her head holding the glasses for five hours; had administered corporal punishment to an excessive and intense degree; had broken her wrist and collarbone; had referred to her only by a number and not by her name; had administered morphine to her to keep her quiet after she was beaten; and had carried out circumcision on the boys at Lutanda on arrival no matter what their age. These attacks appeared in a less specific form in the Further Amended Statement of Claim. 31 The allegation about a member of staff breaking the plaintiff's wrist and collarbone was put in the draft Statement of Claim considered by Studdert J and, it seems, was put in the affidavit evidence before him: page 4 of his judgment and (1994) 35 NSWLR 497 at 501F. "Most importantly", according to Kirby P, Studdert J found her "articulate and intelligent" and "accepted her as a truthful witness" (page 18 of Studdert J's reasons for judgment and (1994) 35 NSWLR 497 at 503D). The trial judge was not able to see the plaintiff in the witness box, but, as will be seen, he found many statements made by her to be quite incorrect. 32 The allegations in their fullest form were advanced in the plaintiff's affidavit of 20 November 1996 and, after a considerable number of deponents contradicted various aspects of them in affidavits filed by the defendants, the allegations were to some degree repeated in the plaintiff's affidavit in reply dated 20 February 1998. A reader of the various Statements of Claim was entitled to assume that the propositions asserted were advanced as statements of fact. A reader of her affidavits, in which she purported to "affirm" the various matters, would also have expected that to be so. 33 Apart from the allegations just described, the plaintiff's affidavits put her case in a second, more generalised, way. They conveyed an impression of a racist, sadistic, heartless, excessively stern institution which exploited the children by working them far too hard, feeding them badly, giving them no or dangerous medical treatment, and ignoring their dignity - an establishment which was totally at odds with the values of the religious denomination operating it, but was rather one pervaded by a sinister, perverse and hypocritical religiosity. 34 The trial commenced on 19 April 1999. After completion of the opening address of counsel for the plaintiff, when the question of the plaintiff's first affidavit arose, according to the trial judge, counsel for the plaintiff: "did not preface the reading of the plaintiff's affidavit with any comment as to its objective truth or otherwise. Specifically, counsel did not stress that the plaintiff's evidence or any part of it to be read by affidavit, was not to be relied upon as being objectively true" (Red 1/146B-E). 35 Counsel for the defendants then successfully made an application that certain persons who were objects of the plaintiff's particular attacks and who were deceased should only be referred to by letters in view of the gravity of the allegations. There was no suggestion from the plaintiff's side that there was anything suspect or exaggerated in her allegations, or that they should be treated only as symptomatic of her mental condition. 36 When the defence witnesses began to be called, there was debate about how far the defendants' counsel should be permitted to elicit in chief material not appearing in the affidavits. Counsel for the plaintiff did not object to each witness dealing with any "specific allegation" concerning that witness which had not been dealt with in that witness's affidavit. Thus Mr Frame was asked about whether or not he participated in gang rape (Black 1/196L-197W). He was also asked about whether he ever knew of any practice of circumcising the boys in their early teenage years (Black 1/197X-198F). He was asked whether he ever saw the plaintiff being punished by being made to stand naked in the dining room (Black 1/198H-M). Mrs Buxton was taken in chief to a large number of the plaintiff's allegations and rejected them all. 37 In cross-examination neither Mr Frame nor Mrs Buxton were, in general, challenged on their denials of the accusations put to them. That practice prevailed for all of the Lutanda witnesses in the sense that the cross-examination did not seek to support the more specific of the extreme allegations made by the plaintiff, and approached only a few of the others in a less than full-blooded way. Rather, the cross-examination sought to demonstrate that the plaintiff was exhibiting the behaviour which, on the plaintiff's case, constituted symptoms which ought to have led appropriately qualified persons to whom the Board should have referred the plaintiff to diagnose the possibility of an attachment disorder liable to result in Borderline Personality Disorder unless treated. This failure to cross-examine alone would have made it difficult to put submissions in support of the plaintiff's allegations. The fact that the plaintiff's allegations occasioned the need for the defendants to file affidavit evidence in relation to them and to elicit oral evidence in chief about them which was not the subject of cross-examination might be thought to have caused some waste of time. 38 The plaintiff's written submissions dated 6 May 1999 began to exhibit a departure from her affidavit evidence, though not a complete abandonment of it. Thus they said (Black 4/901V-902H): "The fact that much of her evidence is 'unreliable' should not lead the Court to infer that she is lying or that what is described is not what she genuinely believes to have occurred. (See the evidence of Dr Waters at tr. 86 lines 41-47.) Her florid descriptions of punishment and abuse are themselves symptoms of a disorder. Dr Waters' evidence is 'Now people who have had very traumatic backgrounds we know from experience seem to have in some ways quite [disordered] memories, they run incidents together to give them a bizarre quality, they reverse the order and things of that sort' (Tr. [89] lines 40-44) …".

As to the last quotation, the allegations do not appear to involve the running of incidents together or the reversal of order. As to the earlier reference to Dr Waters' evidence, the transcript at page 86 lines 41-47 reads: "Q. What I am suggesting to you is that the history upon which you acted may well have been inaccurate? A. Not the history up until, I would say, 1996, probably 1997 for certain, because at that time she was not suffering from a delusional disorder and I was not provided - neither when I examined her on those occasions did she appear delusional or psychotic, nor did I see any evidence that she had been affected by delusions, except for those things when she might have been drug or alcohol affected."

Contrary to the submission, Dr Waters appeared to be saying that the history on which he acted up to 1996-97 was accurate. The date of the first affidavit was 20 November 1996. While Dr Waters' first report (22 October 1991) only recorded in the history the allegation of being called by number and not name, his third report, dated 19 November 1996, a day before the plaintiff's first affidavit, referred to it and to some of the allegations in it. His fourth report, dated 22 October 1997, dealt with detailed allegations of sodomy and gang rape. Dr Waters agreed that he did not, in his eight reports or his affidavit dated 9 March 1999, describe any of what he was told by the plaintiff as "implausible" (Black 1/90K) or refer to the need to be "cautious" about accepting anything she said (Black 1/99M). 39 At Black 4/903R the plaintiff's written submissions said: "the Plaintiff gives florid, exaggerated and, at times, objectively untrue descriptions of punishment to which she was subjected (throughout her affidavit of 20 November 1996) …". 40 At Black 4/906H-K the plaintiff's written submissions said: " … the Plaintiff's affidavit can properly be seen as a grossly distorted view of reality (see Dr Waters, at tr. 95 lines 22-33). Dr [Waters] was of the opinion that at the time she gave the history to him 'she believed that that was the truth' (tr. 86 lines 42-47). The extent of the distortions are indicative of the extent to which the Plaintiff was suffering from attachment disorder. The following examples illustrate the significance of the distortion …".

The first passage in Dr Waters' evidence referred to does not support the submission. 41 The written submissions then referred to five instances (Black 4/906L-908K). The first concerned the allegation of being punished by having to stand on a chair in the corner for four to five hours: a reference was given to Professor Katz's evidence, in which he said the duration, though not the event itself, was "inherently unlikely": Blue 1/175C. The second instance was being called only "Girl four"; reference was given to evidence of Professor Katz (Blue 1/165W-166F) and Mrs Bull (Blue 1/107T-X) in which the allegation was assumed to be true. The third instance was the allegation of having her collarbone broken by a member of staff; attention was drawn to the contrary evidence, and a reference was given to Professor Katz's view that it was possible that either version could be true (Blue 1/177M-P). The fourth instance was the allegation of being punished by being made to stand naked: this was described as "inherently, and obviously, implausible", and as being denied by many of the defendants' lay witnesses, but it was also said that the "kernel of truth is within the Plaintiffs [sic] version". The fifth instance was the allegation about being given an injection of morphine: it was conceded that the allegation of morphine was wrong, but not the allegation of an injection. 42 In relation to the sexual abuse allegations, the written submissions said (Black 4/908P-R): "It is accepted, for the purposes of these submissions that the Plaintiff would not have told the AWB of circumstances of sexual abuse (if indeed they occurred) had a representative of the AWB visited Lutanda while she was there." 43 The relevant parts of the plaintiff's written submissions, while evidencing a process of moving towards a withdrawal of the allegations, could not be regarded as having completed it. 44 The plaintiff's oral address commenced on 6 May, though the written submissions were handed to the court at the outset (Black 3/543H). The address continued on 7 May and into 10 May. It devoted little attention to events at Lutanda, though the following was said: "We are not putting, and it is not our case, that this was a vicious terrible place" (Black 3/609S). 45 On 10 May the defendants began their oral address and handed up their written submissions (Black 3/648J). The defendants were evidently not conscious of any withdrawal of the allegations under discussion, or any contention that as a class they were to be regarded as untrue, because paragraphs 66-88 of the section devoted to factual arguments in their written submissions explained why it was important that the allegations, and a few related ones, be rejected and why they should be rejected (Black 5/1007-1012). 46 The trial judge then interrupted the defendants' address and raised with junior counsel for the plaintiff the issue of the plaintiff's credibility and reliability. Junior counsel for the plaintiff alluded to the possibility that some matters recalled might be "pure fantasy" (Black 3/650C). A little later there was another interruption of the defendants' address when the plaintiff's junior counsel said that the plaintiff did not ask the court to believe her "as to certain identified events" (Black 3/652H-J). 47 In due course the defendants' counsel adopted the technique of speaking to the defendants' written submissions. When he reached paragraph 68 of the section devoted to factual arguments, he read it (Black 5/1007U-V): "The plaintiff's description of Lutanda is that it was a cruel and violent place where children were treated like numbers and not human beings and where they were subjected to a repressive regime of intimidation, beatings and assaults."

The trial judge then observed that the plaintiff would be hard-pressed to make good that claim. Junior counsel for the plaintiff then said that all the defendants' witnesses at Lutanda "thought it was a lovely place", began to make various concessions and referred to the written submissions. On the issue of whether the plaintiff had been addressed as a number, it was said that her "perception is not put forward in that regard as evidence of the objective truth" (Black 4/722C). The written submissions spoke of the allegation as an example of "a grossly distorted view of reality" (Black 4/906H and U). The plaintiff's junior counsel then said of the allegations of sexual abuse, in answer to a question from the trial judge: "In light of the submissions we have put as to the plaintiff's credibility we can't put those and we don't" (Black 4/722H-723D and 726E-P).

The allegation about the plaintiff being made to stand naked was said to be "not pressed" (Black 4/726W-727D). Counsel for the defendants inquired whether the allegation about circumcision was pressed; though no distinct answer is recorded, it seems to have been assumed that it was not (Black 4/727N-728E). The same is true of various other allegations dealt with in paragraphs 78-80 of the defendants' written submissions. Junior counsel for the plaintiff remarked of all these allegations: "some of them, like standing naked, [are] obviously implausible, but no-one could, even without hearing other witnesses, believe them" (Blue 4/728L). 48 The next stage was that in the plaintiff's written submissions in reply, it was made clear that various of the allegations were not pressed. 49 In the oral argument in reply, as the trial judge noted, the position of senior counsel for the plaintiff appeared to move away from the full extent of the concessions made on earlier occasions. Senior counsel for the plaintiff submitted that where a particular allegation had been denied by a defence witness, the court could find that the fact alleged had not occurred, while where the allegation was made against a dead person, the court should find simply that it was not satisfied that the event alleged had occurred (Black 4/786E-787D). 50 The process by which these allegations were made, answered, dealt with in written submissions and then dealt with in oral submissions, evoked no criticism by counsel for the defendants or from the trial judge, and it is unnecessary to examine it further. It did have a significant effect on the facts found by the trial judge, however. 51 The explanation which counsel for the plaintiff gave for the making by her of these false allegations was that they were evidence of an attachment disorder suffered by the plaintiff at Lutanda which developed into Borderline Personality Disorder later and did not reflect adversely on her credibility. The trial judge rejected that submission: he found that there was no attachment disorder. He further found that while the plaintiff was not lying, the consequence of the concessions made by the plaintiff's counsel was that they "adversely affect her reliability and credibility save in particular respects" (Red 1/150B). The adverse effect on her credit and reliability extended to her position "as a historian so far as she is a historian giving a history to be relied upon as both her evidence and by the medico-legal experts qualified by her to give evidence" (Red 1/158U-X). The trial judge proceeded by setting out the respects in which he did accept the plaintiff's evidence (Red 1/159B-H): "Having said that, this does not alter my acceptance of the plaintiff's history as to her conception and parentage relayed to her by her mother and repeated to Dr Waters in 1991 and reflected in her affidavit. Nor does it alter my acceptance of the plaintiff's memory of life at Bomaderry as recorded in Dr Waters history and reflected in part in her affidavit or as to her dealings with Sister Saville and later Miss Atkinson. I also accept her history that her mother did visit her from time to time at Bomaderry, which is supported by her affidavit claim that when she met her mother, her mother said she had visited her at Bomaderry."

The trial judge also made findings specifically rejecting all the allegations that the plaintiff had been abused, and indeed the allegation that she had mutilated herself (Red 1/219R-231P). It was submitted for the plaintiff that the trial judge devoted an "enormous" amount of time to these issues, which the submission said were in truth "non-issues" from an early stage. In my judgment he dealt with these issues appropriately in the interests of those affected by the allegations. 52 Paragraphs 110-115 of the Notice of Appeal made extensive challenges to the trial judge's conclusions in relation to the false allegations. However, those grounds of appeal were abandoned. What remained principally under challenge was the finding that the plaintiff did not have an attachment disorder. The plaintiff also challenged the acceptance by the trial judge of those parts of her evidence which assisted the defendants' case (Ground 118). Thus the plaintiff at the end of the day accepted that in most respects the trial judge was right to reject the reliability of her evidence, and indeed contended that the trial judge only erred in so far as he accepted the reliability of her evidence. That is highly unusual.

Procedural aspects: the likelihood of Lutanda staff making accurate reports to the Board 53 As has just been seen, at the trial, at least until the time of final address, the plaintiff's case was that the Lutanda staff were sadistic and violent, motivated by ill-will towards the children in general and motivated in addition by racism towards the plaintiff in particular. 54 One difficulty with this approach was that it contradicted a vital element of the plaintiff's case against the Minister. No one associated with Lutanda had ever been joined as a defendant. Given that the Board had no permanent representative at Lutanda, and given that the plaintiff contended that the Board should have sent inspectors there regularly to inquire about any symptoms of attachment disorder, it would be highly improbable that staff motivated by ill-will and racism would have responded sympathetically, truthfully and frankly to questions about the plaintiff's behaviour which would reveal their own misconduct. If sound, the allegation that the staff were ill-willed would have interfered with findings which the trial judge eventually made and were necessary to the plaintiff's case, namely that the staff were dedicated persons who tried to do their best for the plaintiff and would have passed on whatever they knew to Board inspectors. The late concessions about the Lutanda allegations in part overcame this difficulty. They did not do so wholly, because the plaintiff in final address made an allegation against Mrs Middleton of "unambiguous bigotry" (Black 4/893X) and "racial bigotry" (Black 4/923L) which was maintained on appeal ("racial prejudice and bigotry" - written submissions page 45) and which, as the trial judge said, was a "very serious" and "very strong" allegation (Black 3/630M-W). Mrs Middleton was the matron, and the matron would presumably have been one person to whom the Board inspector which the plaintiff said should have been sent would have had particular resort. If Mrs Middleton thought the supposed symptoms of the plaintiff were only the result of her racial identity, she would presumably have been less likely to pass them on correctly. What was once a radical contradiction was not wholly removed, but remained to a limited extent.

Procedural aspects: fiduciary duty 55 The claim based on breach of fiduciary duty caused the limitation period to be extended in 1994. It bulked very large in the submissions to the trial judge and in the written submissions on the appeal. But it shrank to complete insignificance in oral argument on the appeal. The plaintiff said that putting her case in that way, at least in the Court of Appeal, brought no advantage over putting it in negligence; and if she failed in negligence by reason of the failure to overturn the relevant factual findings of the trial judge, she must equally fail in her arguments that there was a breach of fiduciary duty. The only useful role which the fiduciary duty case would play would arise if adverse fact findings were reversed, but not the finding that there was no duty of care. So, its essential forensic purpose having been served in 1994, the fiduciary aspect was largely laid aside in the appeal.

Parties 56 Though the State of New South Wales was the second defendant, and was named as the second respondent to the appeal, the trial judge found that it could not be liable for any loss suffered by the plaintiff. No ground of appeal complains of that finding, and no ground of appeal has any direct impact on the interests of the State of New South Wales as such. Its separate position need not be considered further.

The legislative scheme 57 The Aborigines Protection Act 1909 (NSW), in the form in which it stood at the time of the plaintiff's birth, contained the following relevant provisions. Section 4 established the Board. Section 7(1) provided: "It shall be the duty of the board - … (c) to provide for the custody and maintenance of the children of aborigines; … (e) to exercise a general supervision and care over all aborigines and over all matters affecting the interests and welfare of aborigines, and to protect them against injustice, imposition, and fraud … ."

Section 7(2) provided: "The board may on the application of the parent or guardian of any child admit such child to the control of the board."

"Ward" was defined in s 3 as meaning: "a child who has been admitted to the control of the board or committed to a home constituted and established under section 11 of this Act."

Section 11 provided: "The board may constitute and establish under this Act homes for the reception, maintenance, education and training of wards and may assign a name or names to such homes."

Section 11D(1) provided: "(1) The Board shall be the authority to - (a) admit a child to its control; … (h) direct the restoration of any ward (other than a ward who has been committed to an institution for a specified term) to the care of his parent or of any other person; (i) direct the absolute discharge of any ward (other than a ward who has been committed to an institution for a specified term) from supervision and control." 58 One part of the plaintiff's case at trial depended on the proposition that she had been removed from her mother without her mother's consent. It was this which underlay the claims of false imprisonment and trespass in paragraphs 5 and 24-25A of the Further Amended Statement of Claim. This part of the case failed because the trial judge found, apparently on the plaintiff's submission, that the plaintiff was lawfully admitted to the control of the Board on the application of her mother pursuant to s 7(2) (Red 1/57D-59Q and 333G-K). He also found that the placement at Bomaderry was lawful; that the transfer to Lutanda was lawful, with the consent of the plaintiff's mother and in accordance with the Board's statutory duty; and that the plaintiff's legal guardian was at all times the mother (Red 1/60G-M). These findings were not challenged. There was debate on the appeal about whether the legality of any of these events could be supported under s 11D(1)(a), but it was accepted by both sides that that question need not be answered. 59 A close analysis of the Act would be called for in determining the existence of a duty of care and in determining whether an action for breach of statutory duty lay. But whether that analysis is necessary depends on a consideration of the plaintiff's factual case on the appeal.

The approaches of the parties on appeal 60 The approaches of the parties to the appeal diverged. The plaintiff's general approach, while highlighting particular findings of which she complained, was to treat the appeal to some degree as though it was a new trial. The defendants' approach was to draw attention to numerous findings which they submitted stood in the path of allowing the appeal and which, in many cases, they said were not attacked. So far as the defendants' approach is concerned, the plaintiff cannot be accused of failing to make all necessary attacks; further, the defendants adopted a rather over-optimistic approach in many instances to the supposed invulnerability of the trial judge's factual findings and to the extent of the inconsistency between the factual findings he made and the plaintiff's case on appeal. The plaintiff's approach, on the other hand, paid insufficient regard to the nature of the appeal. The appeal was by way of rehearing: Supreme Court Act 1970 (NSW) s 75A(5). It was not a trial de novo or a trial of the case afresh on the record. The plaintiff bore the burden in the appeal not merely of showing that on the facts her contentions might be available or even correct, but of showing that the trial judge's conclusions ought to be reversed. The plaintiff made only limited challenges to the credit-based findings of the trial judge. Most of her challenges were to inferences drawn, or characterisations made, by the trial judge. Even in relation to those challenges, however, the Court of Appeal is in the same position as that ascribed to the Full Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359 at 369 per Beaumont and Lee JJ: "… the court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the trial judge and do not support the judgment. The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes [(1979) 142 CLR 531] (at 552-553) states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be corrected. (See also Edwards v Noble (1971) 125 CLR 296, per Barwick CJ (at 304), per Menzies J (at 308-309) and per Walsh J (at 318-319).)" 61 The plaintiff's approach sometimes invited the court to survey for itself, afresh, all the evidence on particular points and arrive for itself at particular conclusions about them, without essaying the necessary task of positively demonstrating that the trial judge was wrong. The plaintiff's approach also paid insufficient regard to the difference between, on the one hand, pointing to difficulties in the defendants' path of establishing matters which they wished to contend for and, on the other, pointing to sufficient evidence to permit an inference to the contrary of the defendants' contention. It was not enough, for example, for the plaintiff to contend that there was little evidence that the plaintiff had formed a bond with Sister Saville at Bomaderry, and that it accordingly followed that the plaintiff was at risk. It would have been open to the trial judge to have said and, so far as this Court felt able to disturb any conclusions of the trial judge to the contrary, it is open to this Court to say, that the evidence was insufficient to permit either conclusion being drawn. In Rehsa Shipping Co SA v Edmunds [1985] 1 WLR 948 at 955-6; [1985] 2 All ER 71 at 718 Lord Brandon of Oakbrook said: "the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take."

It is generally desirable for judges to make decisive factual findings if they can: Morris v London Iron and Steel Co Ltd [1988] QB 493 at 504 and 506-507 per May LJ and Sir Denys Buckley. But discharge of the burden of proof depends on experience by the trial judge of an actual persuasion of the existence of the matter to be proved. There must be an appropriate degree of confidence in its existence: Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 227 per Mahoney JA. In a case of the antiquity of the present one, it is quite possible that there are many issues on which a trial judge, or an appellate court, would find it impossible to come to a conclusion one way or the other. 62 A further general feature of the plaintiff's arguments on appeal was that she criticised the trial judge for paying insufficient regard to the opinions expressed by experts. However, those opinions rested on particular assumptions. The real question was whether the factual findings made by the trial judge which contradicted the assumptions were sound. It could not be permissible to infer from the opinions that the assumptions were sound rather than the other way around. The plaintiff's case on appeal 63 The plaintiff did not challenge many of the trial judge's findings. Indeed, it relied strongly on some of them. It presented on appeal a much more simple and elegant case than it had presented at trial. That case was summarised in 17 propositions as follows. "1. Attachment disorder is a cause of borderline personality disorder. … 2. Attachment disorder arises in circumstances where no, or insufficient, attachment develops in childhood or adolescence between a child and a caring adult. … 3. Attachment disorder is reversible, through formal treatment (counselling or attendance at a Child Guidance Clinic) or through the fortuitous formation of a sufficiently close attachment between the child or adolescent and a caring adult. … 4. A child or adolescent who suffers from attachment disorder behaves in an aberrant way, but the childhood manifestations of the disorder may be delayed for some years after the time at which the attachment disorder was first experienced. … 5. Propositions 1-4 are established, authoritatively, in Bowlby, Maternal Care and Mental Health, (report to World Health Organisation) (1951) ('the Bowlby Report'). … 6. The conditions to which the appellant was subject at Bomaderry, where she lived from the age of four weeks to four and a half years, subjected her to a risk of attachment disorder. … 7. Proposition 6 is readily inferred from the objective facts concerning Bomaderry and the learning in the Bowlby report. … 8. The trial judge found that from 1951 onwards the Board was aware of the Bowlby Report and that it represented the state of knowledge. … 9. The trial judge found that from at least 1962 the appellant suffered from borderline personality disorder. … 10. It was not disputed that the appellant had recovered from borderline personality disorder by 1996. … 11. The appellant's behaviour at Lutanda, as a matter of objective fact, was such as to demonstrate that she was suffering from attachment disorder. … 12. The appellant's carers at Lutanda were aware of much of the appellant's behaviour, either through their observation or because they were told of it by children who had observed the appellant's conduct. … 13. His Honour the trial judge found that the appellant's carers would have told the Board what they knew, had the Board visited the appellant while she was at Lutanda. … 14. Had the appellant's carers informed the Board of what they knew of the appellant's behaviour, from time to time, the Board would have, at the latest when the appellant was 13, referred her to a Child Guidance Clinic for treatment. (His Honour found that the Board used the facilities of the Child Guidance Clinics for children under its control whether they lived in Sydney or in places remote from Sydney - Red AB 169B-D). … 15. The Lutanda carers would have assisted in accompanying the appellant to the Child Guidance Clinic for treatment. … 16. The treatment received by the appellant at a Child Guidance Clinic would have, on the balance of probabilities, been sufficient to reverse the attachment disorder from which the appellant was suffering and … 17 The appellant would not have suffered from borderline personality disorder, had the attachment disorder from which she was suffering been reversed. …" 64 While the first defendant took issue with the terms or emphasis of many of these propositions, the real controversy occurred in three areas. 65 The first area of controversy relates to proposition 6. The trial judge did not find that the plaintiff was subjected to a risk of attachment disorder at Bomaderry. Rather, he made findings pointing against, though not in terms to the contrary of, that conclusion. 66 The second area of controversy is in relation to propositions 11 and 12. The trial judge made findings directly to the contrary of them. 67 The third area of controversy relates to proposition 16. The trial judge relied on what happened when the plaintiff attended a Child Guidance Clinic just before she turned 18: neither attachment disorder nor Borderline Personality Disorder was diagnosed. From this the trial judge inferred that the plaintiff did not have those conditions at that time. In any event, it could be inferred that even if she had had those conditions, it would be likely that no Child Guidance Clinic visits during the plaintiff's period at Lutanda would have detected her symptoms, and hence no Child Guidance Clinic would have diagnosed or treated any attachment disorder she had. 68 Before turning to these three areas of controversy, it is convenient to note that the plaintiff failed on one factual issue below which does not relate to them. The plaintiff contended that the knowledge in the Bowlby Report was known or ought to have been known to the Board from 1942. The trial judge found that in fact it was only known or ought to have been known from 1951 or 1952 onwards. Though unfavourable to the plaintiff from the temporal point of view, that finding was highly favourable to her in substance. The first defendant did not challenge it, but it might have been open to challenge in the sense that it is certainly open to question what the precise content and consequences of proposition 8 are - that "the Board was aware of the Bowlby Report and that it represented the state of knowledge".

Conditions at Bomaderry 69 The relevant findings of the trial judge were as follows. 70 The United Aborigines Mission was an interdenominational Christian mission to Aboriginals. The home at Bomaderry was intended to fulfil the need to care for Aboriginal children who had been orphaned or abandoned, Aboriginal children whose parents could not care for them, and Aboriginal children suffering from cruelty, vice or neglect. Up to 1945, the maximum age of the children was 10. After 1945, the maximum age for girls was raised to 12. The home was experienced in looking after and raising very young Aboriginal children from birth. In April 1947 the staff included at least a matron and mission sisters. In 1946 for some months there were some staff shortages, causing the Board to be requested to remove certain boys. The elder children assisted in the caring of younger children by getting them dressed in the morning, taking them to and from the dining room, and in other ways. The home was situated in a bush environment about a mile and a half from Nowra. The children of school age attended the Bomaderry Public School. When it was time for the children to leave, they normally went to one of two Aboriginal homes established under s 11 of the Act - Cootamundra for girls (which the plaintiff's mother had been at) and Kinchela for boys. 71 The plaintiff's need for care: "was in fact filled in a loving devoted, charitable religious way by the staff including Mission Sisters, in particular Sister Saville, no doubt in difficult circumstances involving the bringing up of other people's children in a home, including in wartime Australia, and in early post-war Australia" (Red 1/109R-U). 72 When the plaintiff left Bomaderry in 1947 her departure was recorded in the United Aborigines Messenger in an article by A V Darby, the matron, in the following terms (Red 1/110H-L): "Joy, four and a half years, with us from the age of four weeks has been recently placed in another Home. We miss our little Joy: she loved the Lord, and often said so and Joy had an understanding beyond her years and often surprised us with questions and statements."

The trial judge, after referring to that material, said (Red 1/110M-111B and 111P-V): "The evidence would suggest a caring religious atmosphere with the Mission seeking to do the best it could in the circumstances for the bringing up and protection of the plaintiff. Indeed, there is evidence that it was interested in advancing her interests to do the best for her and to monitor her progress. It appears to be … the UAM who initiated the suggestion in December 1946 that, because of her white appearance, that a more suitable environment for her would be Lutanda at Wentworth Falls. It was apparently considered in good faith that it would be better and more advantageous for her (by the standards and values of the time) being a girl of 'white' appearance to go to a Home for white children at Wentworth Falls. It was apparently the UAM at Bomaderry who initiated inquiries at Lutanda for the placement of the plaintiff. It was the UAM who pleaded the plaintiff's case to the Board of which she was a ward (see letter 9 April 1947). One can infer that it was, with the best will in the world, seeking to protect and advance her interests because of feelings of compassion towards her. The Board agreed that it was in her best interests for her to go to Lutanda. … The UAM Sisters considered that it was desirable she be brought up as a 'white child' in a white environment as being more suitable ie children 'should go to Homes with children of their own colour': letter 9 April 1947. The Board agreed, that it was in her interests to be transferred to Lutanda. It also accorded with its policy and accorded with the duty of 'assimilation' imposed on the Board by s 7(1)(a) of the Act. In my view the collateral purpose of relieving pressure on accommodation was probably very much a secondary one." 73 The trial judge found that the plaintiff's mother visited her at Bomaderry. 74 Important findings, which the plaintiff criticises, were made in the following terms (Red 1/112K-M and 114Q-115F): "I accept there was bonding and attachment to her after the plaintiff's arrival at Bomaderry and whilst she remained at Bomaderry between her and Sister Saville. … The above evidence suggests a caring feeling and compassionate relationship, that she was cared for and looked after, perhaps even given special additional attention because of the particular interest with her by Sister Saville. Whilst the plaintiff was at Bomaderry she had such a close enough relationship with Sister Saville that she wanted to go with her as her little girl when Sister Saville left to get married. According to the plaintiff Sister Saville took her from Bomaderry to Lutanda at Wentworth Falls. Indeed, the relationship bond was such that the plaintiff also remembered her only visitors at Lutanda were Aunty Leila (Sister Saville) and Uncle Sid (Sister Saville's husband). In para 65 of her affidavit the plaintiff described visits to her when she was twelve and recalled getting phone calls every two years after Sister Saville moved to Western Australia. There was in my view a particular bond of affection between the plaintiff and Sister Saville at Bomaderry, interrupted inter alia by Sister Saville's departure and desire to see the plaintiff placed in a 'good home' at Lutanda." 75 Similarly, the trial judge said (Red 1/178L-P and 178U-179N): "I have said already and repeat here that I find the history of the plaintiff give[n] to Dr Waters in 1991 reliable where it records the plaintiff expressing feelings to Dr Waters that she had 'comfortable, safe memories' of her time at Bomaderry and that she felt that 'someone was looking after me'. Further, on my findings, I have found that the plaintiff's mother did visit her at Bomaderry. … … [The plaintiff] concedes (at p 40 of her submissions) that it does appear that the plaintiff formed some attachment to Sister Saville while she was at Bomaderry and refers to the plaintiff's own evidence in accepting this fact. This is a finding I make and have made on the evidence, that the plaintiff did form a bond and attachment with Sister Saville whilst at Bomaderry. The plaintiff appears to have trusted Sister Saville and found satisfaction and enjoyment in her relationship with her. Indeed, it is a relationship it seems that was favoured by the plaintiff even later in life where she refers to writing letters to Sister Saville and to receiving visits and phone calls from her. I am further strengthened in my view of the attachment formed between Sister Saville and the plaintiff by the care and concern shown by Sister Saville, as I have mentioned, in assisting the plaintiff's transfer to Lutanda, a good faith act, legitimately undertaken by Sister Saville in the plaintiff's best interests. This finding that the plaintiff received care adequate to achieve 'bonding' between the plaintiff and Sister Saville is made notwithstanding any suggestion of overcrowding at Bomaderry. The care received from Sister Saville is shown by the plaintiff's own fond recollections of Sister Saville, both from her time at Bomaderry and afterwards. This finding that the plaintiff received 'bonding' with Sister Saville strengthens me also in my immediate finding that the plaintiff did not have a disorder of attachment at her time whilst at Bomaderry." 76 The trial judge summarised his findings thus (Red 1/234J-L and 235S-U): "[If] bonding and attachment involved learning to know and trust one individual and the presence of a warm, intimate, continuous relationship, [then] that is what the plaintiff in fact experienced with Sister Saville at Bomaderry … … Bomaderry was a caring environment and … in the circumstances she received love, attention and care being the 'next best thing' to being raised by her [own] mother had she been willing and able to do so …" 77 The trial judge also found that the plaintiff was not a problem child at Bomaderry: she was neither disturbed nor manifested any signs of disturbance or abnormal behaviour or of psychiatric or emotional disorder. He gave detailed reasons for these conclusions (Red 1/115F-L, 116H-M, 117D-J, 165E-P, 172L-177P, 179N and 234N-235C). The plaintiff contended to the contrary of these findings below, but not on appeal. For that reason it is not necessary to examine the detail of the trial judge's reasoning. On appeal the plaintiff put the narrower submission that the conditions at Bomaderry "subjected her to a risk of attachment disorder" (emphasis added). It submitted that by reason of that risk, from 1952 when, on her case, the Board was or should have been aware of the implications of the Bowlby Report, steps should have been taken to prevent the risk crystallising in disorder. It was submitted that the trial judge had erred in not making these findings. It was even submitted that the trial judge had not attended to these questions. 78 The argument on appeal was not that the trial judge had made errors in reaching conclusions of primary fact in relation to the only relevant evidence (which consisted of what were described as contemporaneous documents and hearsay evidence accepted by the trial judge). Thus the rejection by the trial judge of some evidence (from Mr Sattler) was not challenged on appeal. The plaintiff's complaint was rather that the trial judge had characterised the materials erroneously and drawn wrong inferences from them. 79 The first point which the plaintiff made was that from the time of the plaintiff's arrival, the accommodation at Bomaderry was grossly overcrowded. In 1938 Bomaderry accommodated 25 children (Blue 7/1518W). In 1940 the average was said to be 24 and there were 21 in residence on 30 June 1940 (Blue 7/1530T). In 1940-41 the average rose to 30 (Blue 7/1537Q). On 13 October 1942 the plaintiff arrived at Bomaderry. On 11 December 1942 Mrs English reported that the accommodation was taxed to the limit of its capacity, and two nine year old boys should be moved to Kinchela (Blue 3/549-550). The Board's report for the year ending 30 June 1944 reported that the number of infants committed to the Board's care by the courts was increasing, and the opportunities to house them in private institutions or with families had become more difficult (Blue 7/1554L). It was submitted that the under-staffing at Bomaderry was evidenced by the matron's request on 21 June 1994 for ten year old children to have their stay extended so as to carry out "many little tasks in the Home to lighten the strain of the work for us … being a worker short on the staff" (Blue 3/551). At the end of 1945 there were 52 children (Blue 3/545L). On 11 April 1946 the UAM told the Board that some children had to be removed because of a "serious shortage" of staff and "a larger number of children than can be comfortably accommodated". Even if six children went, that would leave "far more than the short staff can well manage" (Blue 3/556). At the end of 1946 there were 43 children (Blue 3/545R). On 9 April 1947 the UAM told the Board that since its letter of 11 April 1946 "the strain has increased", because Bomaderry has "too many children for our present accommodation and staff" (Blue 3/560; see also 562). At the time of the plaintiff's departure, according to a report by Mrs English on 15 June 1947 of an inspection on 22-23 April 1947, the staff consisted of a matron, two assistants and two voluntary helpers (Blue 3/564N). The report said: "The Matron informed me that the conduct of the children was very satisfactory and that there were no problem cases. … This Home appears to be functioning in a satisfactory manner and to be serving a useful purpose in the care of aboriginal children of tender years" (Blue 3/564L-P).

On 13 December 1948 Mrs English from the Board reported on an inspection as follows. There were 32 children, the age range being 4 to 11. There were four members of staff, some untrained. There was still a staff shortage, causing the children to be left to their own devices too much (Blue 3/568-571). The plaintiff submitted that Bomaderry was at that time dealing with 10-20 less children than it was when the plaintiff was there, and the situation was still one of strain. The plaintiff further submitted that that report, which criticised the adequacy of the food and medical/dental oversight, qualified Mrs English's earlier report of 18 June 1947. 80 It may be accepted that conditions at Bomaderry produced stress for the staff and that from all points of view the staff/children ratio was undesirable. The question remains whether that reveals error in the trial judge's reasoning or permits a finding in favour of the plaintiff. One obstacle to those conclusions is created by the trial judge's findings about the plaintiff's attachment to Sister Saville. The trial judge obviously thought that those findings reduced the dangers flowing from overcrowding, and the plaintiff accepted that they were an obstacle which had to be dealt with if the appeal were to succeed. 81 In consequence, a necessary criticism which the plaintiff made of the trial judge's reasoning concerned the findings about Sister Saville. The trial judge based his findings partly on Dr Waters' recording of the history which the plaintiff gave him; partly on some hearsay evidence given to the court by Miss Moorhouse, who heard from Mrs Sangwill at Lutanda that the plaintiff was one of Sister Saville's favourites and Sister Saville thought she should be given a chance in a good home and asked whether she should go to Lutanda; partly on statements by the plaintiff to Miss Moorhouse to the effect that the plaintiff regarded herself as Sister Saville's "little girl" - "her favourite little girl"; and partly on the fact that Sister Saville and her husband were the plaintiff's only visitors at Lutanda and Sister Saville telephoned her every two years after moving to Western Australia. 82 The plaintiff criticised the findings about Sister Saville on the ground that though the trial judge quoted part of the history which the plaintiff gave Dr Waters of, inter alia, having "comfortable safe memories" about Bomaderry and feeling "that someone was looking after me", he did not refer to Dr Waters' evidence about that history. The evidence to which the plaintiff referred concluded (Blue 1/212E-L): "It is difficult to ascertain whether her 'snap-shot' memories of her time at Bomaderry are real memories of actual threads of attachment which she formed at Bomaderry or whether they are fantasies which reflected what she most lacked. The childhood antecedents of borderline personality disorder which manifest themselves prior to the age of five or six are non-specific but are usually severe and may include indiscriminate attachment, aggressive and destructive behaviour, emotional instability including serious temper problems and oppositional behaviour. Given her serious disturbance by the age of ten it is likely that she exhibited some or all of these non-specific symptoms before her arrival at Lutanda at the age of four and a half years."

This opinion, first, assumes that the plaintiff had experienced serious disturbance by the age of 10 (i.e. 1952). That is, it assumes one of the things to be decided. Secondly, the opinion was a piece of evidence. The trial judge was entitled to accept it, reject it, or arrive at a qualified finding about it. The history was recorded in Dr Waters' first report of 22 October 1991 after Dr Waters interviewed the plaintiff "extensively" on 16 July 1991 and 7 August 1991 (Blue 1/224M and 225W-226D). While the report was given to the plaintiff's solicitors, the affidavit was affirmed on 9 March 1999, just before trial. Dr Waters made assumptions about the plaintiff which are factually wrong (the plaintiff was "removed from her mother when she was only a few hours old" and lived at Bomaderry "from the time that she was 13 months old until she was four and a half years old"). The errors may not be significant in themselves, but they do not increase confidence in the conclusions. Dr Waters was not asked to take into account the other pieces of evidence on which the trial judge relied to reach the conclusions about attachment with Sister Saville. Dr Waters' expression of difficulty in deciding whether the plaintiff's Bomaderry memories were real memories or fantasies was not extended to aspects of her memories in which she made criticisms of Lutanda which the trial judge rejected. The further reason why the trial judge might have experienced reservations about Dr Waters' conclusions is that he said: "Although Ms Williams still suffers from an Anxiety State her mind is much healthier than when she first came to see me in 1991" (Blue 1/212U-V). That opinion was expressed on 9 March 1999. Two weeks later, on 23 March 1999, the plaintiff was admitted to the Psychiatric Unit at Shell Harbour District Hospital; a clinical diagnosis of "psychotic reaction (provisionally hypomania with paranoid delusions)" was made (Blue 1/248L-M). That is an indication of the difficulty of the medical field in question, but it also points against any uncritical reliance on expert opinion evidence in that field. The trial judge discussed Dr Waters' evidence in general in considerable detail at Red 1/249M-2/269L. He accepted some parts of it, but not other parts. In particular, he rejected those parts which rested on accepting the plaintiff's evidence about Lutanda which the trial judge rejected, and which rested on questioning the plaintiff's evidence about Bomaderry which the trial judge accepted. There was no ground of appeal complaining of the trial judge's conclusions about Dr Waters' evidence as such. 83 The plaintiff's ultimate submission in relation to the Bomaderry history given to Dr Waters was that reliance by the trial judge "upon the recollections of a seriously disturbed woman" about her life to the age of four was insufficient material from which to conclude that the plaintiff had an adequate relationship with Sister Saville, who was taking care of all the other children too. That point might have force if the history stood alone. But it did not stand alone. 84 The next criticism by the plaintiff of the trial judge's reasoning was that Miss Moorhouse's evidence was of no weight in determining whether the plaintiff was at risk of attachment disorder and whether or not the "bonding and attachment" it pointed to was adequate. The question is not whether another trial judge might not have reached the conclusion which Abadee J reached in relation to the plaintiff's attachment to Sister Saville. The question is whether the plaintiff has demonstrated error in Abadee J's conclusion. The plaintiff's submission rested in part on the assumption that all the children received equal care; if so, the plaintiff submitted, it followed that all were at risk. But the evidence reveals little about the proportion of babies to other children. It was possible, and the trial judge found, that Sister Saville gave so much attention to the plaintiff, whatever the effects on other children, as to cause an attachment between her and the plaintiff to be formed. 85 The plaintiff next drew attention to various passages in the Bowlby Report (Blue 12/2772-2773): " … what is believed to be essential for mental health is that the infant and young child should experience a warm, intimate, and continuous relationship with his mother (or permanent mother-substitute) in which both finds satisfaction and enjoyment. A state of affairs in which the child does not have this relationship is termed 'maternal deprivation'. This is a general term covering a number of different situations. Thus, a child is deprived even though living at home if his mother (or permanent mother-substitute) is unable to give him the loving care small children need. Again, a child is deprived if for any reason he is removed from his mother's care. This deprivation will be relatively mild if he is then looked after by someone whom he has already learned to know and trust, but may be considerable if the foster-mother, even though loving, is a stranger. All these arrangements, however, give the child some satisfaction and are therefore examples of partial deprivation. They stand in contrast to the almost complete deprivation which is still not uncommon in institutions, residential nurseries , and hospitals, where the child often has no one person who cares for him in a personal way and with whom he may feel secure" (emphasis added).

Under the heading "Residential Nurseries", the Bowlby Report said (Blue 12/2805): "Unfortunately the idea is still prevalent that institutional conditions do not matter in the case of babies and toddlers. It is therefore vital to note that there is no support amongst those with mental health training for this complacent view … It cannot be too strongly emphasized that with the best will in the world a residential nursery cannot provide a satisfactory emotional environment for infants and young children."

It is to be noted that the second last quotation acknowledged that despite the unsatisfactoriness of residential nurseries, their drawbacks could be overcome if there was a person "who cares for [the child] in a personal way and with whom [the child] may feel secure". 86 Next, the plaintiff relied on three affidavits by Professor Katz. 87 In the first, attention was drawn to five assumptions (Blue 1/133C-M): "(a) Ms Williams was removed from her mother when she was only a few hours old. (b) The Aborigines Welfare Board ('the Board') had care and control of Ms Williams once she had been taken from her mother. (c) Shortly before Ms Williams' first birthday the Board acquired the power to place children within its care and control with foster parents. (d) Ms Williams lived at an institution for Aboriginal children called Bomaderry [from] the time she was thirteen months old until she was four and a half years old. (e) Ms Williams was removed from Bomaderry and came to live at another institution called Lutanda when she was four and a half years old …".

Assumptions (b) and (c) were not factual assumptions about Bomaderry. Assumptions (a) and (d) were about Bomaderry, but were wrong. They were corrected in the witness box (Black 1/75W-76G). Assumption (e) was not about what happened at Bomaderry. The opinions expressed based on those corrected assumptions were as follows (Blue 1/135D-137D): "13. Had it been necessary for whatever reason to remove Ms Williams from her mother this step should have been delayed until a willing 'mother-substitute' had been located. The literature available to reasonably competent child psychiatrists or child mental health professionals at or prior to the time of Ms Williams' birth indicated the developmental problems which could occur, particularly in the development of attachment, if the child was deprived of a caring adult with whom she could develop an attachment. The literature identified case studies of children who were subjected to maternal deprivation and the grave consequences of such deprivation. 14. Although at the time of Ms Williams' birth and infancy it was recognised that not all institutions had a necessarily deleterious effect on the development of attachment, reasonably competent child psychiatrists or child mental health professionals recognised at the time that the risk of a disorder in the development of attachment was particularly high in institutions such as orphanages. This was so because the usual structure of such organisations was for relatively large numbers of children to be supervised and cared for by staff members as a whole. This structure, although it may have had administrative benefits, was antipathetic to the development of a close emotional attachment between an individual child and a specified adult and exposed children in such institutions to a high risk of disorder in the development of attachment. 15. A reasonably competent psychiatrist or child mental health professional would have advised the Board that the risks associated with placing Ms Williams who had already suffered the trauma of removal from her mother when she was very young would be greatly increased if she was placed in an institution, particularly if the institution was not structured to create small identified family units. Such a person would have advised the Board that the childhood antecedents of a disorder in the development of attachment may not manifest themselves in any recognisable form until the child was five or six. Manifestation of such symptoms at that age would indicate that some damage to the facility for attachment had already been done. … 16. In my opinion any reasonably competent psychiatrist who examined Ms Williams in 1948 would have appreciated the following: (a) Ms Williams, having been removed from her mother when she was only a few hours old, and placed in an institution when she was just over a year old, was susceptible to attention seeking disorder (which is a disorder in the development of attachment) and could develop a borderline, psychopathic or delinquent personality in adult life. (b) The removal of Ms Williams from an institution, Bomaderry, where she had fond memories of some level of attachment to adults, to Lutanda would tend to make her feel insecure and would aggravate whatever problems she was having in the development of attachment and created an additional risk of the development of a borderline, psychopathic or delinquent personality in adult life." 88 In relation to paragraph 13, Professor Katz did not explain what, as a matter of practical reality, was to happen to the plaintiff while the supposed removal of the plaintiff from her mother was delayed. Nor did he identify a method of overcoming the difficulties of finding "a willing 'mother-substitute'" in the middle of a great national crisis involving enormous dislocation of the population. The plaintiff below rightly accepted that "the war … necessarily depleted the resources available to house and care for children and may have adversely affected the supply of people willing to foster children such as the Plaintiff" (Black 4/860R). In the Board report for the year ending 30 June 1944 increasing difficulties in the placing of infants with denominational and other private institutions and approved families were noted (Blue 7/1554K). The trial judge rejected the view stated in paragraph 13 not only on these grounds, but also because the opinions stated did not accord with expert opinion in 1942 (Red 2/274E-276H). That last conclusion was attacked in paragraph 84 of the Notice of Appeal, but no reasoned argument was put in support of the attack. 89 In relation to paragraphs 14 and 15, the plaintiff, who bore the burden of proof, did not prove that the plaintiff was not cared for by a particular staff member as part of a very small group. In any event, the trial judge rejected Professor Katz's opinion that the "Bowlby" knowledge referred to was available while the plaintiff was in Bomaderry, and also rejected the view that there were any symptoms of disorder at Bomaderry: the plaintiff did not challenge either conclusion in the argument on the appeal. The trial judge rejected Professor Katz's opinions (Red 2/277D-U). Paragraph 16(a) repeats the factual errors noted above. 90 Next, Professor Katz's second affidavit was relied on to the following extent. He made the following assumptions (Blue 1/152E-153P): "3. In my earlier affidavit I was asked to assume only that Ms Williams was admitted to Bomaderry when she was about one year old and remained there until she was four and a half years old. I was not given any further details of the institution. My opinion that it was likely that Ms Williams suffered some psychological damage there is based on the early age at which she demonstrated disturbed behaviour and the circumstance that she was already known to be a troublesome child before she was admitted to Lutanda. 4. I have [been] asked to make further assumptions about Bomaderry which are set out below and have been asked to give my opinion on the following matters: (a) the relevance and effect of the further assumptions; (b) whether the structure of Bomaderry was likely to safeguard or harm the psychological well being of Ms Williams who was sent there when she was one year old; (c) what modifications, if any, a reasonably competent child psychiatrist or child mental health professional would have advised be made to Bomaderry in order to safeguard the psychological well being of Ms Williams. 5. The further assumptions which I have been asked to make are as follows: (a) for at least part of the time during which Ms Williams was at Bomaderry there were forty three children all of whom were under the age of ten years at the institution; (b) the children were supervised and cared for by three full time staff and two volunteers; (c) only two of the full time staff had any training, and this was nursing training: neither of the volunteers had any training; (d) the Matron of Bomaderry perceived that there was such a shortage of staff on 21 May 1945 that she made a request that children who had turned ten (and who were therefore due to be moved to another institution) be permitted to stay at Bomaderry so that they could look after the very young children by dressing them in the morning and taking them to and from the communal dining room and performing 'other little attentions that take up to the time of the staff'; (e) the United Aborigines Mission, which administered Bomaderry, considered on 11 April 1946, that there were far more children at the institution than the staff could manage; and (f) Ms Williams was removed from the institution at the age of four and a half (although the usual age of departure from the institution was ten years) in order to alleviate the overcrowding problems."

The "opinion" offered in paragraph 3, as well as its basis in "disturbed behaviour" and in the supposed fact that the plaintiff was known to be a problem child, is inconsistent with findings of the trial judge which are not challenged on appeal. The assumptions set out in paragraph 5 are substantially correct save that the assumption in paragraph 5(f) is contradicted by the trial judge's finding (at Red 1/110X-111B and 11U-W). That finding is challenged, but in my opinion unsuccessfully. Indeed, the plaintiff's written submissions to the trial judge said (Black 5/1119U-X): "It is not suggested by the Plaintiff that her transfer to Lutanda was done for motives other than those which were designed to advance the Plaintiff's interests (although there was an obvious collateral motive to relieve overcrowding at Bomaderry to the benefit of those of the AWB's wards who were destined for Cootamundra or Kinchela but were too young to be transferred)." 91 The opinions which Professor Katz formed on the basis of the assumptions were as follows (Blue 1/153Q-154V): "6. Assumptions (a)-(e) indicate that the proportion of staff to children was inadequate for the proper care and attention of the children (as to which see below). 7. Assumption (d) indicates that the Matron was trying to adopt a structure which is common in tribal societies, namely the caring for younger children by other children. This can of itself facilitate the forming of an attachment. The fact that the older children were to perform specific physical tasks rather than 'mother' the small children (which includes showing love and affection) would have decreased the chance that bonds would have formed between older and younger children. Further, the fact that the ten year old children may well have been suffering from a disorder of the development of attachment themselves may have made them less able to 'mother' younger children. 8. Assumption (f) would inevitably have had the effect of making Ms Williams feel rejected since she was removed from Bomaderry at a much earlier age than the other children and she was removed alone and not with anyone she already knew. 9. The structure of Bomaderry was similar to the institutions created in the nineteenth century which were, by the first decades of the twentieth century, regarded as likely to produce delinquents. The supervision of large numbers of small children by few staff members, especially where they are untrained, is likely to cause or exacerbate any disorder in the development of attachment. As the children who are inmates in such institutions are, almost by definition, likely to have been subjected to partial if not total maternal deprivation, the institution itself, unless modified to promote the development of attachment in small pseudo-family groups within the institution, is likely to harm the child and thwart his or her psychological development. 10. The resources of Bomaderry were so restricted that it appears to have been impossible for the institution to be modified to permit the formation of small family groups since there were insufficient adults to perform even the physical tasks of looking after the children, quite apart from the task of being substitute 'parents'." 92 Professor Katz made similar assumptions and stated similar conclusions in the third affidavit relied on (Blue 1/189C-J and 191Q-192M). 93 The problem is that once the trial judge's factual findings diverged from Professor Katz's assumptions, his reasoning became largely based on guesswork. Whether or not the evidence permits a conclusion that there was no risk of any disorder, it does not permit a positive conclusion that there was a risk. In particular, it does not follow from a poor staff/child ratio that the plaintiff did not have a sufficiently close relationship with one member of the staff. Not all children will receive equal attention. The youngest are likeliest to receive the greatest attention. Professor Katz's opinions do not take account of the detailed findings of the trial judge about Sister Saville and the evidence on which they were based. Indeed, Professor Katz said in cross-examination that so far as his opinions were based on written material shown to him without seeing the plaintiff, which he had not done, they amounted to preparedness "to hazard a guess" (Black 1/78C-P). 94 The plaintiff concluded by putting three related submissions. The first was that the trial judge's finding (Red 1/234J-L) that the plaintiff experienced bonding and attachment by learning to know and trust Sister Saville and experiencing a warm, intimate, continuous relationship with her "simply was not sustainable", was "a finding which his Honour could not make", was "a finding beyond his Honour's capabilities as the trial judge to make", and was "a finding that no judge could come to". The second submission was that the most which the trial judge could have found was that "some form of attachment, the adequacy of which one could not determine, may have developed with Sister Saville". The third was that on the basis of the Bomaderry evidence: "you can't … conclude other than [that] this child, when she left, had been exposed to circumstances which created a risk. Time would tell whether that risk had fallen in. The way that one observes whether that risk has fallen in is to look at the behaviour of the child as it evolves over her adolescence."

That is, the only legitimate form of reasoning is to draw inferences from the symptoms subsequently observed. That was said to be "the only rational and scientific approach". The risk was said to be small if deprivation occurred after the age of five, to be less good if it occurred after three, and to be extreme before three (the relevant part of the Bowlby Report is at Blue 12/3621). 95 I would reject the first of these submissions. The finding may have been a difficult one to make, and it may have rested on necessarily exiguous materials. But it was a finding open to the trial judge, and the evidence marshalled against it does not demonstrate that it was appellably wrong. 96 As to the second submission, let it be assumed, without deciding, that the fragmentary nature of the materials made it hard for the trial judge to conclude, if he did, that there was an adequate degree of bonding to prevent the risk of attachment disorder from arising. By the same token those materials make it hard to conclude that that degree of bonding was inadequate. In short, even if the trial judge had made only the finding which the plaintiff said was open, that does not establish inadequacy. 97 As to the third submission, it is first necessary to leave on one side the fact that it depends on inferences from symptoms supposedly observed at Lutanda which the trial judge said were not observed: those conclusions are separately attacked, and the submission would require them to be set aside before it could succeed. One problem with the third submission is that it does not quantify the degree of "risk". Children not brought up in institutions - children brought up in conventional families - can develop attachment disorder. In that sense both sets of children are "at risk". For the plaintiff to infer the existence of a risk at Bomaderry from the fact, if it be a fact, that the plaintiff later suffered the symptoms of attachment disorder, or of Borderline Personality Disorder, is to assume what the plaintiff is trying to prove. The reasoning is circular. The question is: is one cause of the plaintiff's Borderline Personality Disorder a risk of attachment disorder arising from overcrowding at Bomaderry? The answer given is: it must have been, because the overcrowding must have caused the risk. The reasoning is also illogical. It depends on the following reasoning: all maternally deprived children manifest symptoms of attachment disorder; the plaintiff manifested these symptoms; therefore she was maternally deprived. But the reasoning does not follow unless it is the case that every child showing symptoms of attachment disorder is maternally deprived. The logical fallacy in such reasoning has often been identified. (See Halford v Price (1960) 105 CLR 23 at 29 per Dixon CJ; Erven Warnink BV v J Townend & Sons (Hull) Ltd [1979] AC 731 at 742 per Lord Diplock; A Lewis & Company (Westminster) v Bell Property Trust Ltd [1940] 1 Ch 345 at 350-351 per Simonds J.) In any event the trial judge made no such finding, and the court was not taken to evidence suggesting that he ought to have made that finding. 98 In short, so far as the plaintiff's case rests on the Bomaderry period, she had to seek a finding of fact that there was inadequacy of bonding sufficient to cause a risk of attachment disorder which was in turn sufficient to cause it to come into being at Lutanda. No finding of inadequacy was made. So far as the plaintiff complains that the trial judge did not direct himself to the correct question, any failure on his part to do so may have sprung from his having been invited to attend to numerous questions not now pressed. However, he does appear to have addressed the correct question. In Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 Dixon J said: "The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality."

The probabilities urged on the trial judge arising from Dr Bowlby's reasoning where nothing specific suggested deprivation at Bomaderry and there was some evidence against it were not sufficient to cause an actual persuasion of the risk of attachment disorder. It was not incumbent on the defendants to prove that there was no risk. It was, however, incumbent on the plaintiff, on the case she was advancing, to prove that there was a risk, and that involved causing the trial judge to experience an actual persuasion of the risk of attachment disorder. He was taken to expert evidence which contended that that risk was probable. He did not in terms find that he was persuaded that there was no risk. But it was sufficient that he did not find - experience an actual persuasion - that there was a risk. His failure to experience an actual persuasion has not been shown to be appellably wrong. That is particularly so given the infirmity of Professor Katz's evidence, which was the only specific expert evidence relied on in this respect: it opined about what the probabilities were, but at best mechanically, in view of the trial judge's refusal to make factual findings supporting the opinions in question.

The plaintiff's behaviour at Lutanda 99 The second central area of factual controversy concerns Lutanda. The trial judge made many findings about Lutanda on issues which were controversial at the trial but are no longer controversial. He made other findings which remain controversial. 100 In brief the trial judge found that people of the Plymouth Brethren established the Lutanda Children's Home at Wentworth Falls in 1930. It received the children of parents who by reason of the death or serious illness of one or more of the parents could not look after them. It moved to Pennant Hills in 1950. The trial judge found that the staff looked after the children with charity, trust, devotion, care "and within constraints, with appropriate discipline (measured by the standard of the day), kindness and affection. The difficult task of bringing up the plaintiff and other children whose parents could not or would not or were unable to do so themselves was accompanied by religious instruction, support, appropriate discipline and dedication" (Red 1/133R-T and 162X-163I). While the plaintiff was at Lutanda, there were about 30-36 children in residence, 6-8 full-time live-in workers, and numerous volunteers who gave aid (Red 1/179V-180R). The trial judge found (Red 1/171M-X): "There is no evidence that throughout even her stay at Lutanda, that any school teacher or School Medical Officer at any time made adverse reports in respect of the plaintiff's behaviour, or recommended or suggested that the plaintiff should be seen by a Child Guidance Clinic, or, indeed, should be referred for 'help' or assistance to a Doctor, psychiatrist or anyone else in the behavioural science area. The practical, experienced and trained Lutanda staff, particularly the qualified and trained nurses, Mrs Buxton, Mrs Middleton and Miss Moorhouse, individually did not consider that the plaintiff's behaviour or conduct was such as warranted third party intervention whether by referral to the Honorary, Dr Lovell, or at all. They did not receive complaints in respect of adverse behaviour or suggestions from any school teacher or at all recommending either a Child Guidance Clinic referral or referral to another third party." 101 The trial judge found that Lutanda was non-discriminatory in its admission policies (Red 1/181C-182D). The plaintiff was one of a few children of Aboriginal descent, if not the only one (Red 1/182F-183D). Some children and staff did, but most did not, appreciate that the plaintiff was of Aboriginal descent (Red 1/182F-184D and 186C-L). The trial judge found that the plaintiff was not treated differently on that ground (Red 1/183Q-184D and 209P-210Q). She was not denied any chance of being fostered (Red 1/215H). No attempt was made to teach the children to look down on Aborigines (Red 1/188D-189P). 102 Apart from Sister Saville and her husband (Red 1/190R), the plaintiff received no visitors from relatives or friends (Red 1/189R-190G). While a few children had fortnightly visits, most had only occasional visits, and some, like the plaintiff, had none (Red 1/190W-192E). The staff encouraged members of the Plymouth Brethren to visit those who had no other visitors, and those who did visit the children brought gifts for those who had no visitors (Red 1/192F-S). The plaintiff sometimes had outings with other children when the families of the latter visited (Red 1/192J-S). Contrary to her evidence, the plaintiff was never the only child left at the Home over the holidays (Red 1/207B-P). The plaintiff was taken on three interstate Christmas trips by Miss Atkinson (Red 1/209P-R). 103 As indicated above, all the plaintiff's specific and general allegations of mistreatment were rejected (see also Red 1/219S-224J). The plaintiff did not engage in acts of self-mutilation by cutting her arms (Red 1/229K-L and 230G-H). The trial judge concluded that Lutanda was a caring environment "staffed by persons who honestly acted in what they perceived to be the best interests of the plaintiff" (Red 1/232E-G). He also found that Lutanda "was a caring home staffed by dedicated, qualified caring child carers who sought to give 'of their best' in the upbringing of the plaintiff" (Red 1/236I-K). 104 Though at various stages of the trial all the above conclusions were controversial, and though some of them remained controversial to the end of the trial, very few remained controversial on the appeal - only the use of corporal punishment and racism on the part of Mrs Middleton. 105 What was centrally controversial in the appeal was not the way Lutanda behaved towards the plaintiff, but the way the plaintiff behaved towards Lutanda, and what that behaviour indicated. The trial judge concluded (Red 1/197O-198N): "I am satisfied on all 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. The plaintiff was in the care of experienced and trained carers. I reject the plaintiff's submission that the staff at Lutanda, and particularly Mrs Buxton and Mrs Middleton were prejudiced by religious beliefs into preferring pseudo solutions over medical assistance. The evidence suggests, and I accept this evidence, that both dedicated caring Matrons would have sought the assistance of the honorary Dr Lovell for a referral had there been a perceived need for it. There is no evidence and I do not find that the plaintiff suffered from any emotional, psychiatric or psychological problem or disturbance whilst at Lutanda which warranted reference of the plaintiff to a third party like a CGS for observation, treatment or therapy. I repeat that whilst at Lutanda at no time was apparently a report made by the educational authorities at the plaintiff's school or by any other teacher expressing concern about the plaintiff's behaviour nor was any direct referral to a Child Guidance Clinic or any other third party suggested or made by them. Had such a visit to a Clinic occurred I am satisfied that the history given to the clinic by the staff at Lutanda would be not substantially different from that given by the witnesses Mrs Buxton and Mrs Middleton in the instant case, namely, that the plaintiff was not unduly troublesome and was not clinically depressed, nor suffering from any psychiatric problem or disturbance." 106 The trial judge said that the plaintiff had no attachment disorder at Lutanda (Red 1/149J). He concluded (Red 1/237G-L): " … even if the plaintiff had been hypothetically taken to a child guidance clinic in 1947, 1953 or 1959, or at any time, the hypothetical history given by the adult carers (who on all the evidence did not feel a need to take her anyway) would have been to the effect that her behaviour was normal and not perceived to have been otherwise than as stated above and not abnormal or revealing signs of any psychological or psychiatric disorder …".

The plaintiff contended on appeal that these findings involved a radical mistake and that the truth was as alleged in propositions 11 and 12 set out in paragraph [63] above - that the plaintiff presented every symptom of attachment disorder which, if the Board had made appropriate inquiries, would have been reported by the staff at Lutanda. 107 The plaintiff submitted that logically there were two questions about the plaintiff's behaviour at Lutanda. One was: what did she do? The other was: what did the staff see? The plaintiff complained that the trial judge never separated these questions. Yet the first was vital to the issue of whether the plaintiff in fact had the symptoms of attachment disorder. 108 A related complaint by the plaintiff was that the trial judge did not analyse the material in sufficient detail. The plaintiff submitted that broadly the Lutanda children who gave evidence had clear recollections of aberrant behaviour symptomatic of attachment disorder, while the staff had only dim recollections of anything, and no inference adverse to the plaintiff should be drawn from their rather general evidence that the plaintiff was, though a problem, not out of the ordinary. 109 A further complaint is that the plaintiff contended that the trial judge should have asked how the conduct recollected by the children would have appeared to a hypothetical representative of the Board calling at Lutanda, knowing of the risk created at Bomaderry, and sensitively responding to a description of attachment disorder symptoms. The symptoms said by the Bowlby Report to be symptomatic of attachment disorder were stealing, violence or aggressive conduct, "egotism", "sexual misdemeanours", conduct "exasperating to those trying to help" the child, a "lack of concern", an inability to concentrate either generally or at school, an inability to participate in group play and an inability to keep rules: Blue 11/3623. At Lutanda, according to the plaintiff's argument, on the evidence principally of three children, Mrs Tucker, Mrs Godfrey and Mr Frame, but also to a lesser degree on the evidence of other witnesses, in the four periods 1952-1954, 1954-1956, 1956-1958 and 1958-1960, the plaintiff exhibited all these traits to at least some degree in at least some periods, and some traits in all periods. 110 During the appeal, the plaintiff prepared elaborate tables matching parts of the evidence to each of the symptoms in each of the four periods. 111 There are several difficulties with these submissions. 112 Some of the evidence referred to does not support the submission relied on. For example, "Bad temper/violence/aggressive behaviour" in 1954-1956 is said to be supported by paragraph 18 of Mrs Buxton's affidavit (Blue 3/511-512), her oral evidence in chief (Black 2/379L-R), and two parts of her cross-examination (Black 2/393-394 and 395E). Mrs Buxton served at Lutanda from 1952 until 1957 as cook, housekeeper and then matron. Paragraph 18 of her affidavit said: "Joy could be moody and withdrawn, about the same as the other teenagers. She probably grumbled about no-one caring, but it was not true, and what teenager does not say that? She did not have clinical depression. That would have been recognised and treated. She showed no undue emotional problems while I had care of her. As far as I know this did not develop until her late teens. She was a normal active girl. In my time at Lutanda she never cut her arms."

She repeated that in her oral evidence in chief (Black 2/379L-R) and to some extent in cross-examination (Black 2/395E). Elsewhere in cross-examination (Black 2/393-394) she said the plaintiff was rough, in the sense of the odd push here and there to the other children at play, but not violent: she specifically denied that the plaintiff struck them, kicked them or pulled their hair, and specifically denied that the plaintiff had the reputation of a bully. That evidence might be correct or incorrect, but it does not support the submission. This is significant, because the trial judge found Mrs Buxton in general, and also in particular instances, to be "impressive" and "reliable, credible and seeking to tell the truth as I believe she did" (Red 1/229H-J; see also Red 1/160W-161N, 195V-198N, 206Q-207P, 219T and 222J-223J). He made these findings after a considerable assault on her in cross-examination and in final address, which referred, for example, to her "tendency to qualify and euphemise her answers" (Black 4/919M) and her "use of lack of memory at convenient junctures" (Black 4/919W). 113 Another difficulty with these submissions is that they are designed to support the conclusion, not only that the plaintiff actually had the symptoms of attachment disorder, but also that those symptoms would have been communicated to the Board if a representative well trained in the ideas of the Bowlby Report and sensitive to attachment disorder symptoms had visited Lutanda and inquired about the plaintiff's progress. It was common ground that no such visit occurred. At the foot of each page summarising the evidentiary references for the plaintiff's behaviour for each two year period is a statement of what the Board would have been told about the plaintiff. The theory of the plaintiff's case is that that statement would have been given by the member of the staff interviewed by the Board in answer to the following statement: "Joy entered Bomaderry at 4 weeks of age and remained there until she came to Lutanda. At Bomaderry there were conditions of over-crowding and there is a real risk that she will have been deprived of adequate attention. The degree of deprivation can vary and we do not know to what, if any, degree she has been exposed. Further she was moved from Bomaderry and this could have exasperated any deprivations by interrupting any relationship she may have developed. Children who have been exposed to this deprivation can react in different ways. However, certain sorts of conduct tend to indicate that such deprivation has occurred. · Stealing. · Violence [or] aggressive conduct. · Egotism. · Sexual misdemeanours. · Conduct exasperating to those trying to help so that you feel nothing you can say or do has any effect. · A curious lack of concern. · An inability to concentrate generally or at school. · An inability to participate in group play. · An inability to keep rules. It is important that you can tell me in detail what behaviour you have observed about Joy. The onset of any of these symptoms may be gradual. The Board uses Child Guidance Clinics to assess and treat children. They are staffed by trained psychologists and social workers who can examine the child and advise on any necessary treatment. Their services are free. If Joy has been deprived and it is not treated long term psychological damage could follow."

Thus for 1954-1956 it is said that this answer would have been given: "She had run away and had stayed away for at least one night and claimed on her return that she had had sexual intercourse with a boy several times when she was underage. Her disobedience was continuing and her moodiness had grown worse; she was more difficult to manage than the other children and continued to 'try out' the staff by repeating her misdemeanours; she had become less co-operative and more disruptive, was less sociable than she had been as a child, and could no longer relate to someone she had known when she first came to Lutanda; she was rebellious and was the most difficult charge for whom Mrs Buxton was responsible; she continued to be very disruptive and violent although by the age of 14 she was no longer as violent as she had been although she continued to fight with the other children; she was not a good scholar, did not apply herself to her homework, found it difficult to concentrate, and often did not come straight back to Lutanda after school had finished with the other children from Lutanda."

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."

In my opinion the probabilities for which the plaintiff contends as to how the plaintiff behaved at Lutanda do not so outweigh those chosen by the trial judge that it can be said that his conclusion was wrong. 137 Similarly, in Biogen Inc v Medeva plc [1997] RPC 1 at 45, Lord Hoffmann said: "It is true that in Benmax v Austin Motor Co Ltd [1955] AC 370 this House decided that, while the judge's findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses were virtually unassailable, an appellate court would be more ready to differ from the judge's evaluation of those facts by reference to some legal standard such as negligence or obviousness. In drawing this distinction, however, Viscount Simonds went on to observe [1955] AC 370 at 374 that it was 'subject only to the weight which should, as a matter of course, be given to the opinion of the learned judge'. The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance ( as Renan said, la [vérité] est dans une nuance ), of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation. It would in my view be wrong to treat Benmax as authorising or requiring an appellate court to undertake a de novo evaluation of the facts in all cases in which no question of the credibility of witnesses is involved."

To accede to the plaintiff's submissions about the plaintiff's behaviour at Lutanda would be to evaluate the facts de novo without regard to factors contributing to the trial judge's impression of the evidence which of necessity he has not expressed exactly. 138 Further, even where credibility-based findings are not involved, the trial judge has advantages over appellate courts. While Kirby J's opinions on the role of appellate courts are not universally shared, the following propositions, enunciated in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 at 619 [90], have never been doubted: "The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are the real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge. These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge has been driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified."

The present issue is not a peripheral one, and the trial judge did not treat it as if it were, but the characteristics of the trial in this case answer every other element in Kirby J's description. What the trial judge said about the plaintiff's behaviour at Lutanda was designed to explain the conclusions to which he had been driven by his overall impressions and considerations, not all of which, quite properly, may have been expressly specified. 139 In all the circumstances of this highly unusual trial, the trial judge's conclusions about the plaintiff's behaviour at Lutanda are not easy to attack. In my opinion the attack has not been shown to succeed. Further, assuming there is a real difference between the evidence of the staff and the evidence of the children, and even if the trial judge's preference for the staff over the children was not sound, there is a real possibility that both are correct. That would involve answering the two questions which the plaintiff posed above as follows. The question "What did the plaintiff do?" would be answered "What the children said she did". The question "What did the staff see?" would be answered: "What they say they saw". If that approach were correct, the plaintiff's case would still fail, because it would be only what the staff saw which the staff could report to any inspector from the Board. 140 The second last submission of the plaintiff about her behaviour at Lutanda centred on a challenge to Mrs Middleton's evidence. It was submitted that the reason why the Lutanda carers failed to recognise the symptoms which the Lutanda children recognised was that the carers, while seeing a problem, though that the problem arose from nature, not nurture (Black 1/1231L-W and 4/894K-895P). The submission ascribed to the staff the view "we thought she was boy crazy", and said "that is exactly the same as saying, 'it is in her'". The submission continued: "if your Honours come to the conclusion that Mrs Middleton did take the view and concluded that aborigines went walkabout and could not settle down to anything, then according to Mrs Middleton, this child was normal. She was an aborigine and, therefore, there was nothing to do by way of treatment."

The background of this submission was that according to two persons who were then university law students, when in September 1994 they conducted an interview with Mrs Middleton, she offered a number of racist explanations as to why the plaintiff was ill-behaved at Lutanda. The trial judge dealt with this evidence in the context of whether the plaintiff had cut her arms at Lutanda: she said she did, while Mrs Middleton and Mrs Buxton said she did not. The trial judge rejected the proposition that she had cut her arms. He also upheld Mrs Middleton's denials of making the racist statements to the law students. He made findings, based on Mrs Middleton's impressiveness as a witness in point of reliability and credibility, to the effect that her evidence was to be preferred to that of the law students (Red 1/160W-161N, 197D, 229V-230H and 231D-N). He did not reject their evidence by reason of any lack of honesty on their part but because of the amateur fashion in which the interview was conducted, the notes of it were taken, and a jointly prepared record of it was generated (Red 1/224L-231N). Numerous grounds of appeal (paragraphs 37-38, 41-49, 123-125 and 139-145) and eleven pages of the plaintiff's written submissions on appeal were devoted to this subject; the oral treatment of the subject was briefer. In my opinion the reasoning of the trial judge was not successfully attacked. His conclusions on Mrs Middleton's credibility were partly demeanour-based, and his views of her demeanour are supported by the transcript (Black 1/228K-R). His reasoning about the methods of the law students was not shown to be invalid. Their cross-examination reveals grounds for that part of his conclusion. The cross-examination of Mrs Middleton, who had no notice that the subject was to be raised, also supports the trial judge's view of her credibility. 141 The plaintiff's final submission in support of her attack on the trial judge's conclusions that she was not exhibiting symptoms of attachment disorder at Lutanda and did not in fact have attachment disorder at Lutanda turns on what happened when she left Lutanda. It is convenient to set out the details in view of their relevance to the third main issue in the appeal, concerning Dr Cooley. 142 The plaintiff left Lutanda on 30 July 1960 to work as a housemaid at the Oriental Private Hotel, Cremorne. She left the hotel on 6 August. She was arrested on 26 August 1960. According to a police report for the Children's Court prepared by Detective Sergeant Shenley, for ten days prior to her arrest she was "residing with a criminal and pervert named Brian Gardiner" in a single room at Kings Cross (Blue 3/589-590). The reason for her arrest was that she had allegedly stolen some cheap jewellery from Woolworths Ltd because she was hungry (Blue 3/587). Detective Sergeant Shenley recorded an admission that she had been having sexual intercourse with Gardiner, and remarked that she "was in a very dirty condition, her legs and arms appeared as if they had not been washed for a number of days" (Blue 3/593-594). She was charged with theft (Blue 3/587) and with being "a neglected young person within the meaning of the Child Welfare Act, 1939 in that she is living under such conditions as indicate that she is likely to lapse into a career of vice" (Blue 3/588). The plaintiff's counsel submitted: "his Honour seems to have concluded that until the day she left Lutanda, she was a normal child. Within weeks she is living in conditions of this variety". The lamentable events of August 1960 do not invalidate the trial judge's conclusions. Nor do her convictions, her acts of prostitution and her other troubles in the years up to 1962, from which date it was common ground that she had Borderline Personality Disorder or something resembling it.

Dr Cooley's report 143 The third main issue which is significant to the appeal concerns Dr Cooley's report. Dr Beryl Cooley was a psychiatrist working at No 4 Child Guidance Clinic, Parramatta Road, Camperdown. She saw the plaintiff on 31 August 1960, following her arrest on 26 August, and made a report about her on 1 September 1960. 144 The plaintiff's case was that, if the Board had carried out its duty, it would have alerted the Lutanda staff to the risk to the plaintiff arising from her Bomaderry experiences, it would have inquired whether she had symptoms of attachment disorder, it would have learned from the Lutanda staff that she had, and it and the Lutanda staff between them would have had her taken to a Child Guidance Clinic, where the staff of the Child Guidance Clinic would have diagnosed the attachment disorder and remedied it by treatment. 145 It is accordingly of some significance to examine who Dr Cooley was, and to examine what happened when the plaintiff was seen by Dr Cooley at the Child Guidance Clinic. 146 The trial judge found (Red 1/246G-Q): "At the time the plaintiff was aged 17 years and 11 months of age. Dr Cooley was a well known and well qualified child psychiatrist. It appears that Dr Cooley was a person known to the witness Mrs Bull during Mrs Bull's training. Mrs Bull gave evidence in the plaintiff's case on the basis of work she had done as a social worker in a Child Guidance Clinic. Dr Cooley was a colleague of a Dr Jennings who (according to Dr Ellard, who was called in the defendants' case) also worked in a Child Guidance Clinic, and who delivered an important paper in 1953 on the subject initially addressed by Dr Bowlby in 1951, namely, on issues of attachment and bonding. I am satisfied that accordingly, Dr Cooley probably was as at September 1960, up to date with knowledge in her area of speciality including information contained in DSM-1TM (published in 1952) as well as with the views of Dr Bowlby and Dr Jennings on maternal deprivation."

The trial judge found (Red 1/246D-F) that the plaintiff was assessed by Dr Cooley for the purposes of preparing a report for the criminal proceedings in which the plaintiff was involved, and that the report was made pursuant to an order from the Children's Court. 147 The report stated (Blue 3/599): "This girl was seen at the above clinic on 31st August. Joye [sic] seemed to have a resigned attitude, which at times gives way to the underlying resentment, about her illegitimacy and lack of home and relations and her own lack of success and self-esteem. She has little motive or hope for constructive satisfactions. There is a history of resentful behaviour for some years at the Lutanda Home. Her own discontentment and emotional problems seem to have interfered with adjustment in employment. Joye was rated on the Binet as average in general intelligence. She cooperated but lacked persistence. She gave as her Vocational Choice live-in domestic work in the country. This may be a possibility, if she is placed in a home where standards are not too high and class-distinction not too obvious. She needs the help of an adult who can give her genuine interest and understanding. She may have some artistic talent (drawing or music) or interest that could be used to give her satisfaction?" 148 The trial judge then made the following findings (Red 1/246S-247O and 248F-249K): "In her report of 1 September 1960, Dr Cooley, according to Dr Waters, made no diagnosis with respect to the plaintiff of any psychiatric disorder. Nor in her report does she indicate that the plaintiff had then, or at any other time in her life, demonstrated signs, symptoms or a history of one. Her report makes no reference to Sociopathic Personality Disorder, to any disorder of attachment or to any other disorder. Her report was made following the subjection of the plaintiff to a series of tests, presumably considered appropriate in Child Guidance Clinics including a Binet intelligence test. The report was also made subsequent to the plaintiff giving her history to Dr Cooley. Indeed her report does not suggest that during the plaintiff's history the plaintiff was subject to any of the numerous incidents of corporal punishment or sexual abuse that have been the subject of allegations in this trial and are found in her subsequent history given to Dr Waters. This is significant in two respects. Firstly, perhaps, it lends some further and independent support to my findings in respect of the lay evidence that I have accepted and which I have also found to be reliable and credible. Secondly, this history given by the plaintiff in 1960 provides some indication of what indeed may have been said and of what conclusions may have been reached had the plaintiff made a hypothetical visit to a Child Guidance Clinic in the years 1947, 1953 or 1959, or indeed at any time prior to 1960, as is alleged should have been done in this case. I also observe that as regards the situation at Lutanda, the history that was given to Dr Waters in 1991 and thereafter is different to what was told to Dr Cooley in 1960. …. In the context of this case, this report is significant, in that, as I have already mentioned, it was made at or around the time it is urged on the plaintiff's own expert evidence that the plaintiff's condition of borderline personality had crystallised. For example, Dr Waters (at T 135) gave evidence that he felt comfortable in expressing the view that the plaintiff's Borderline Personality Disorder was manifested by the plaintiff's adolescence or at least by the time she was eighteen. I am satisfied that Dr Cooley was an experienced Child Psychiatrist, one of the few in New South Wales who worked in a Child Guidance Clinic during the period relevant and significant in this case. It was conceded by Dr Waters that Child Guidance Clinic psychiatrists would have seen more children in practice than a private psychiatrist treating children and would have had a high level of experience in diagnosing psychiatric problems associated with children. Dr Ellard, who trained in Australia in the late 1940's and 50's and whose views I accept on historical matters, said that there were relatively few such speciality Child Psychiatrists and those who were specialists were found in public health. The evidence was that these clinics were busy and that they had waiting lists. I am satisfied that Dr Cooley was a doctor of integrity and fully aware of her obligations and responsibilities and I find no reason to assume that she would not have fulfilled her duty to the court or to her client in ensuring that her report was correctly prepared and accurately made. The report was, as I have said, made pursuant to a series of tests which would also perhaps suggest that a child psychologist was involved. Presumably a social worker and a psychiatrist was also involved in obtaining the history as appears in the evidence of Mrs Bull. Even assuming that this is not so, this does not alter my views as expressed. Importantly, Dr Waters conceded that Dr Cooley was an expert in the field when she made the report in 1960 and that the report did not appear to record any 'diagnosis of any psychiatric disorder at all'. I will return to the views of Dr Waters on the report of Dr Cooley in a moment but it is appropriate if I first set out his position as to the history of the plaintiff's mental health. I accept what is recorded in Dr Cooley's report and that the absence of recording of psychiatric disorders (past or present) was because in her opinion there was probably none to be found." 149 Earlier, the trial judge had made the following finding (Red 1/243Q-244G): "Further or alternatively, I have difficulty accepting the expert opinions [of Professor Katz, Dr Bull, Dr Waters and Dr Lal] in so far as I have found that the plaintiff's experts have not taken into proper consideration in expressing their opinions, the plaintiff's turbulent experiences and conduct between 1960-2 (or subsequently) and the report of Dr Cooley in 1960. This material includes a psychiatric assessment of the plaintiff by Dr Cooley of a Child Guidance Clinic at the very time that the plaintiff contends the plaintiff's condition of Borderline Personality Disorder crystallised. The findings of that report, adverse as I find they are to the plaintiff's case, were not considered by the plaintiff's experts or not satisfactorily explained. The material relating to the plaintiff's conduct and history during the years immediately following her discharge from Lutanda, not adequately pressed in consultation with the plaintiff and not considered in his assessment of the development of the plaintiff's psychiatric condition, is a further reason for my not accepting the plaintiff's expert evidence. The plaintiff's history from 1960-62 takes on particular significance given the reliable report in 1960 of Dr Cooley who furnished a contemporaneous psychiatric assessment of the plaintiff." 150 Later the trial judge said (Red 2/256T-257D), after finding that Dr Waters' diagnosis of Borderline Personality Disorder was consistent with the records of the Macquarie Hospital in 1962-1965: "Nevertheless, that finding does not require a finding that that or any psychiatric condition existed or had manifested itself in any signs or symptoms prior to 1962. On this point I accept Dr Cooley's views in 1960. Nor does that finding require me to make any findings of fact about the plaintiff's history different to what I have made in respect of the lay evidence. Particularly it should be noted that each of Dr Lal, Dr Waters and Dr Ellard proceeded on the basis that the history obtained by Dr Waters in 1991 and the plaintiff's affidavit affirmed 20 November 1996 was accurate and reliable particularly in relation to the nature of the plaintiff's life at Lutanda." 151 The only grounds of appeal about these findings were as follows: "96. His Honour misconstrued the report of Dr Cooley and in so doing erred in finding that the appellant did not manifest any psychiatric condition prior to 1962 [paragraph 482 of the judgment]" …. 132 and 133. 152 The oral submissions about Dr Cooley's report were put in a few words as follows. First, it was said that "there is no diagnosis at all" and that the court "could look at the Cooley report and see how little there is". It was then said: "I have made my submissions as to really what it doesn't say rather than what it does". Secondly, it was said that it was not clear, though it might be inferred, that Dr Cooley had the report on the plaintiff made by Detective Sergeant Shenley (Blue 3/589-590). 153 The written submissions about Dr Cooley's report were a little longer (page 62): "It is respectfully submitted that, if the erroneous premiss [i.e. that at Lutanda the plaintiff's behaviour was normal] is reversed, the report of Dr Cooley, far from providing support for his Honour's finding, is consistent with the expert evidence that the appellant was, at the time she saw Dr Cooley, suffering from borderline personality disorder. His Honour, in placing significance on the circumstance that no formal diagnosis to that effect was made by Dr Cooley, disregarded the circumstances in which the consultation occurred and the evidence of Dr Waters (Black AB111I-S, 112P-W, 113P-114D, 115C-F, 116K-T) as to the understandable concern of professionals in the position of Dr Cooley not to condemn a person such as the appellant by making a formal diagnosis in a curial setting. Properly analysed, the report of Dr Cooley does not provide any support for the finding which his Honour seeks to make on the basis of it. If this Honourable Court is disposed to reverse the erroneous premiss, then the report of Dr Cooley provides no impediment to a finding that the attachment disorder from which the appellant was suffering as a child and an adolescent was, by the time she saw Dr Cooley developing into borderline personality disorder." 154 What Dr Waters said about not condemning accused persons by making a formal diagnosis in a curial setting is to the effect that psychiatrists were "a bit reluctant to use terms that might dog somebody for the rest of their lives" (Black 1/111M). He said: "you don't want to label them with something like antisocial personality for instance which seems to - which seems to label them as irrevocably bad" (Black 1/112R-S). He said: "there is a reluctance to use diagnostic terms for fear of how that might guide action afterwards" (Black 1/112W). He said (Black 1/113V-114D): "Particularly in the area where you've got evidence of behaviour which is consistent with personality disorder, there is a reluctance to use terms which suggest that the person isn't going to change for another twenty or thirty years in the children's court because it just seems too pessimistic, unless the child's behaviour is so outrageous, and they seem so remorseless that there seems no reason for dealing with them in any other way than in a way which perhaps might be characterised as punitive." 155 In my opinion there is no reason to reject the trial judge's reasoning. The evidence of Dr Waters referred to on appeal does not appear to have been used before the trial judge in the manner it was on the appeal, and it is therefore difficult fairly to criticise the trial judge on the ground that he "disregarded" it. In any event, he did not disregard it. Having set some of it out (Red 2/262B-R), he said (Red 2/262S-264P): "I reject Dr Waters' interpretation of Dr Cooley's report. I further reject these and any other attempts by Dr Waters to explain away the findings of Dr Cooley. I have said already that I find Dr Cooley to be an expert in the field of Child Psychiatry. Her report is a contemporaneous document. Made in 1960, it involves an assessment of the plaintiff by a Child Guidance psychiatrist at or around the time at which Dr Waters says the plaintiff's disorder had crystallised. The report finds no such disorder. The report also reflects a different record of the plaintiff's history to that given to Dr Waters in 1991, a history taken from the plaintiff herself in circumstances which would give the plaintiff even [sic] reason to be candid about her history and Dr Cooley to be equally frank with the Court. The report prepared by Dr Cooley was, as I said, a report made for the purposes of court proceedings in which the plaintiff was involved. The report was to the court and for the benefit of the plaintiff in criminal proceedings. I do not accept that a qualified psychiatrist would choose not to make a diagnosis that could assist a client in receiving remedial assistance or a fair and just hearing. I do not accept that Dr Cooley's report would resile from fully informing the court on the plaintiff's well-being. It should be remembered that Dr Cooley was an expert child psychiatrist who worked in a Child Guidance Clinic and so would have had more extensive exposure to the psychiatric care of children than any other specialist in child psychiatry. I do not accept the 'retrospective' diagnosis of Dr Waters to the extent that he suggests the plaintiff had a disorder consistent with a Borderline Personality Disorder in 1960 or any psychiatric disturbance at that time. It is an opinion also based on matters that I do not accept. I find his diagnosis to be unreliable as to the plaintiff's condition in 1960 or during her late adolescence. I am not willing to find, as I must if Dr Waters is accepted, that Dr Cooley was in some sense inaccurate in the views she expressed. I do not accept that she would fail to disclose something so significant as a disorder consistent with a Borderline Personality Disorder when it was in the plaintiff's best interest to do so. The plaintiff had every opportunity to give an accurate history on that occasion and it was in her interests to do so. Dr Cooley would have received that history and acted on it. Dr Cooley administered tests to the plaintiff in the course of her assessment, all of which confirms my feeling that her report was exhaustive, accurate, frank and reliable. Given its contemporaneity, I am prepared to give the report of Dr Cooley significant weight as to the nature of the plaintiff's mental condition as at 1960. I am made more confident in making this finding by the fact that Dr Cooley was accepted by Dr Waters to be an expert in the field and that she worked in a Child Guidance Clinic, one of the very institutions it is submitted on the plaintiff's case that the plaintiff should have been taken for assessment. Dr Waters was not qualified as a psychiatrist till 1977 and was as I have said at no time the plaintiff's treating psychiatrist, whether in 1960 or during the course of the 1990's when he prepared reports and a history in respect of the plaintiff. Those reports and history were made pursuant to a request by the plaintiff and for the purposes of the present litigation. I do not accept his view that the plaintiff had a disorder of the type he contends at 1960." 156 Nothing in the plaintiff's submissions suggests a reason for thinking that the trial judge's analysis was wrong, as distinct from merely asserting that it was wrong. Another difficulty with the evidence is that so far as it purports to speculate as to what was in Dr Cooley's mind, it is unconvincing. A further difficulty with it is that if attachment disorder is reversible by treatment, to record the fact on the report would not dog the plaintiff for the rest of her life, or label her as irreversibly bad, or use diagnostic terms in a manner likely to damage the plaintiff, or use terms suggesting that the plaintiff was not going to change for twenty or thirty years. Another difficulty is that even if those dangers were perceived by Dr Cooley to exist, there must have been some other method open to her of persuading the plaintiff to have treatment and see that she got it. There is no evidence that she made any relevant diagnosis.

157 The problem for the plaintiff's case caused by Dr Cooley's report is not only that it points against the plaintiff suffering from Borderline Personality Disorder in 1960. Even if she were so suffering, the report would indicate an insuperable causation problem for the plaintiff's case. The plaintiff directed no little energy at trial to proving the existence and functions of Child Guidance Clinics and their reasonable availability. Though the trial judge did not accept the totality of the plaintiff's case on Child Guidance Clinics (Blue 1/78-87 and 118S-119I), he made findings more than sufficient to ensure her success if all other necessary elements of her case had been established (Red 1/166D-171K). The very institution to which the plaintiff should have been brought, assuming all anterior steps in the plaintiff's argument are correct, failed to recognise the symptoms of attachment disorder or Borderline Personality Disorder. Yet Dr Cooley was unquestionably as well placed as any professional could have been to do so. And she was not responding to some account of symptoms with relatively harmless impact displayed at Lutanda and at school. She had before her a young woman sliding into an abyss. Even that urgent problem did not trigger in her recognition of what the plaintiff's case says would have been obvious. It follows that it cannot be inferred that even if the Board had asked the Lutanda staff the correct questions, the Lutanda staff had given the correct answers and the plaintiff had agreed to visit and co-operate with a Child Guidance Clinic, that that Clinic would have either diagnosed or cured any attachment disorder from which the plaintiff was suffering.

Conclusion 158 Although counsel for the plaintiff said that the plaintiff did have to establish that she was in a position of risk at Bomaderry, the failure of the plaintiff's attack on the absence of any finding by the trial judge that the plaintiff was at risk of attachment disorder by reason of conditions at Bomaderry may not be fatal to her success, though it does destroy an essential step in the case actually advanced, and any case advanced for the plaintiff without that step would be significantly less likely to succeed. The failure of the plaintiff's attack on the trial judge's conclusions about the plaintiff's behaviour at Lutanda is fatal as a matter of causation to the case she actually advanced and to any case she could have advanced, because it means that even if the Board had asked the correct questions, it would not have received answers suggesting attachment disorder. And the failure of the plaintiff's attack on the trial judge's reasoning about Dr Cooley's report is also fatal as a matter of causation. The burden lay on the plaintiff to prove causation, not on the defendants to exclude it. In these circumstances it is not necessary to deal with any other aspect of the arguments on appeal, except in two respects. 159 The first relates to the plaintiff's claim for exemplary or aggravated damages. In my judgment the contentions advanced in support of this claim, even assuming everything else in the plaintiff's favour, were so weak as to render it wholly untenable. The evidence referred to fell far short of establishing a conscious and contumelious disregard for the plaintiff's health and did not show the wrongdoing to be either conscious or flagrant. The evidence also fell far short of establishing circumstances of aggravation (even assuming that aggravated damages are recoverable in negligence which, at least in England, they are not: Kralj v McGrath [1986] 1 All ER 54 at 61; AB v South West Water Services Ltd [1993] QB 507 at 527-8 and 523-3). 160 The second relates to whether or not the Board owed the plaintiff a duty of care. The defendants' submission that the Board owed no relevant duty of any kind to the plaintiff is not an immediately attractive one. Some of the criteria which are, or have been, commonly looked at in order to decide whether a duty arises arguably exist here - for example, foreseeability, proximity, the vulnerability of the plaintiff and the power of the Board to protect the plaintiff. However, the trial judge concluded that the Board did not owe any duty of care to the plaintiff (Red 2/370-401). He relied significantly on Lord Browne-Wilkinson's analysis in X (Minors) v Bedfordshire County Council [1995] 2 AC 633. The trial judge did so in language which was less decisive than that employed in other parts of his reasons for judgment. He appeared to consider that there were no established categories of negligence providing any analogy to the cause of action for which the plaintiff contended. For the law to be extended, it was not clear where the new boundaries should be drawn. To impose a common law duty of care would cut across the whole statutory system for the protection of Aboriginal children. It might cause persons in the position of the Board to adopt a more cautious, restrictive, qualified and defensive approach to their duties. It was unsatisfactory to impose a legal duty on a body overseeing a person in loco parentis for harm caused which a natural parent would not be liable for. The imposition of a duty of care might reduce the supply of child care services, increase their cost, or reduce standards. It might have an adverse effect on the administration of the court system. 161 Though the facts and the issues in Cubillo v Commonwealth of Australia [2000] FCA 1084 are different from those involved in the present appeal, any court considering whether a duty of care exists in circumstances like the present will have to pay close regard to O'Loughlin J's careful analysis at [1194]-[1269] (pp 528-570) as well as to that of the trial judge in the present case. 162 The potential impact of imposing a duty of care in the present circumstances is, as the trial judge noted, potentially wide. If the Board were under a duty of care when it voluntarily accepted the plaintiff as a ward under s 7(2) of the Act, it would probably also be under a duty of care had it been compelled to accept the plaintiff as a ward under s 13A (which provided for committal by a Children's Court of an uncontrollable Aboriginal over the age of 18). Any body having a statutory responsibility for non-Aboriginal children brought up in State charitable or denomination institutions or brought up by foster parents would probably be under a like duty. If so, analysis of the State's powers to inspect non-State schools or other institutions affecting children, or adults, might support the existence of a similar duty. The State could thus be exposed to the risk of claims from every citizen alleging a relevant injury. 163 A variety of matters would have to be taken into account in deciding whether or not to impose a duty. The duty would have to include the possibility of breach by reason of inaction; rationally or not, in the past and to some extent even now the law is more reluctant to impose liability for failure to act than for positive acts. So far as the duty extended any distance into the past, it would have to accommodate changing standards and changing approaches. A further problem stems from the difficulty triers of fact have in analysing and considering expert evidence in relation to psychiatric disorders. The medical fields are arcane, vague, to some extent only of recent development, and to some extent uncertain. Sometimes witnesses dealing with them adopt partisan positions, though they are not unique in that respect. The trial judge recorded his own difficulties with the expert evidence in this case, which were not limited to the failure of the experts' assumptions to mesh with the facts (Red 1/241R-V, 242Q-R and 245B-V). According to Lord Hoffmann in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 501, despite scientific advances, "the evidential difficulty of deciding upon the causes of psychiatric symptoms … remains a serious problem". The "area of ignorance seems to expand with that of knowledge": McLoughlin v O'Brian [1983] 1 AC 410 at 418 per Lord Wilberforce. 164 To some extent the recognition of the duty of care would be affected by the fact that proof of injury may depend on "loss of a chance" analysis, an approach which was urged as an alternative by the plaintiff in this case, and an approach which is causing difficulty in other fields: Chappel v Hart (1998) 195 CLR 232. 165 Though the field is not one involving recovery for pure economic loss, it has some resemblances with it in that it is one in which recovery is sought for economic loss unconnected with bodily injury strictly speaking. The courts have found it difficult to arrive at appropriate liability tests in relation to pure economic loss (as distinct from loss connected with injury to tangible property or bodily injury): see, for example, the line of Australian cases illustrated by Mutual Life and Citizens' Assurance Co Ltd v Evatt (1968) 122 CLR 556, Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" (1976) 136 CLR 529, Shaddock v Parramatta City Council (1981) 150 CLR 225, Sutherland Shire Council v Heyman (1985) 157 CLR 424, Hawkins v Clayton (1988) 164 CLR 539, Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241, Hill v Van Erp (1997) 188 CLR 159 and Perre v Apand Pty Ltd (1999) 198 CLR 180. 166 The field is also one having obvious connections with recovery for psychiatric injury caused by nervous shock. In a period when the profession of psychiatry has increased greatly, though perhaps not as fast as the number of persons claiming to suffer from psychiatric illness, the English authorities, for example, have moved into an unsatisfactory condition: Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310; Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455. 167 It will be necessary to determine to what extent any duty of care was "non-delegable". Would it be a defence for a body in the position of the Board to select an institution which was thought, on reasonable grounds, to be competent to look after children, which was licensed under statute (like Lutanda) (Red 1/131-133), and which, as was the case, on the evidence, for Lutanda, gave "an extremely high quality of care" (Blue 2/468T). 168 To some, the financial effects of liability are relevant. In Stovin v Wise [1996] AC 923 at 952 Lord Hoffmann said: "It is one thing to provide a service at the public expense. It is another to require the public to pay compensation when a failure to provide the service has resulted in loss. Apart from cases of reliance, … the same loss would have been suffered if the service had not been provided in the first place."

That reasoning is not precisely applicable here, since it is hard to say what would have happened to the plaintiff if the Board had never existed. But her fate is not likely to have been pleasant. And a policy question does arise whether the public should be liable in relation to an attempt to create a suitable system for persons in the plaintiff's position which failed in the case of particular persons like the plaintiff, given that if the attempt had never been made the plaintiff could not have sued for failure to make it. 169 The present age has a hearty appetite for litigation. Some think this reflects an increasing trend to avoid responsibility for one's predicament by blaming, and suing, others. Recognition of a duty of care in the area concerned in this case might well not only increase the number of cases to be processed by a crowded court system, but also impose on it tasks which it would find difficult to perform in view of the potential complexity and length of many of the cases. 170 The wide potential impact of imposing a duty of care in the general area under consideration, the difficulty of identifying its content, and the difficulty of administering litigation in which breaches of it are alleged, are not in themselves necessarily reasons for not recognising it. But they are reasons for delaying any decision to do so until particular circumstances are proved which will result in liability sounding in damages. They have not been proved in this case. Not only has the Bomaderry risk not been established, but the Board's putative duty of care in failing to visit Lutanda has not been shown to have caused loss because of the findings on the plaintiff's behaviour at Lutanda and Dr Cooley's reports. Further, there is some vagueness in the findings about the extent to which the Board knew of Dr Bowlby's work: what was or ought to have been known by the people actually likely to have been sent to Lutanda assuming that the Board had recognised a duty to do so? 171 Where the law is unsettled but is entering or may shortly enter a state of development, it is undesirable to offer opinions on facts not proved. It is even more undesirable to do so when the circumstances of the case go as far back in time, and are as unusual procedurally, as are the circumstances of this case. On these grounds it is inappropriate to comment further about the trial judge's findings that there was no duty of care.

Orders 172 I propose that the appeal be dismissed with costs.

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