SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: / DI v Australian Capital Territory
Citation: / [2016] ACTSC239
Hearing Date: / 4 August 2016
DecisionDate: / 8 August 2016
Before: / Mossop AsJ
Decision: / See [43]
Catchwords: / PRACTICE AND PROCEDURE – Application to amend statement of claim and document identifying the plaintiffs’ case entitled “Plaintiffs’ Facts” – Where amendment to introduce an allegation of sexual assaults by foster parent – Amendments sought only in relation to damages recoverable, not to defendant’s breach of duty of care – Whether damage suffered as a result of the assaults constitutes damage flowing from the negligence of the defendant – No appropriate to determine application based on hypothetical assessment of whether or not plaintiff capable of establishing factsnecessary for recovery of damages – Delay in making claim cannot be ignored as a factor relevant to whether grant of leave appropriate – Where delay results in significant procedural prejudice and risk of vacation of hearing date – Plaintiff has an apparently good cause of action against foster parent as principal tortfeasor – Application dismissed
Legislation Cited: / Civil Law (Wrongs) Act2002 (ACT), s 45
Limitation Act 1969 (NSW), ss 6A, 26
Limitation Act 1985 (ACT), ss 16B, 21
Cases Cited: / AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Branagan v Robinson [2006] ACTSC 66
DI & Ors v Chief Executive of Department of Disability, Housing and Community Services[2015] ACTSC 418
Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd(2015) 89 NSWLR 104
Texts Cited: / Davies, M, A Bell and P Brereton (eds), Nygh’s Conflict of Laws in Australia (LexisNexis Butterworths, 14th ed, 2014)
Parties: / DI (First Plaintiff – SC 693 of 2006)
KI (Second Plaintiff – SC 693 of 2006)
EI (Third Plaintiff – SC 693 of 2006)
LI (Plaintiff – SC 38 of 2007)
Australian Capital Territory (Defendant – SC 693 of 2006; SC 38 of 2007)
Representation: / Counsel
Mr R Clynes (Plaintiff)
Mr D HiggsSC, Mr E Pike (Defendant)
Solicitors
Blumers Personal Injury Lawyers (Plaintiff)
ACT Government Solicitor (Defendant)
File Numbers: / SC693 of 2006
SC 38 of 2007

MOSSOP AsJ:

Application

1.This is an application by the third plaintiff in the proceedings to amend two documents which identify the case that he proposes to bring at the hearing. Those documents are an amended statement of particulars dated 30 May 2016 and a document entitled “Plaintiffs’ Facts”. The effect of the amendment is to introduce an allegation that between August 2003 and 24 October 2003 the third plaintiff was sexually abused on two occasions by an identified foster carer. For the purposes of this application I will refer to that person as the Foster Parent and he and his partner collectively as the Foster Parents.

Procedural background

2.The unorthodox manner in which the pleadings or documents which perform the function of pleadings in this matter have proceeded are recited in my earlier decision: see DI & Ors v Chief Executive of Department of Disability, Housing and Community Services [2015] ACTSC 418 at [9]-[15]. In addition to the further amended statement of claim, there are the following documents identifying the plaintiffs’ case:

(a)the “Breach Document” identifying the breaches of the defendants duty of care which are alleged;

(b)a “Plaintiffs’ Facts” document outlining the facts alleged by the plaintiffs and the contentions of the defendant in relation to those facts; and

(c)a statement of particulars for each plaintiff identifying the damage alleged to have been suffered.

3.On 30 May 2016 the third plaintiff filed an amended statement of particulars which included for the first time, amongst the particulars of injury, “sexual assault”. Including that item, the particulars of injury were:

2.1. Aggravation of Autistic Spectrum Disorder;

2.2. Post-Traumatic Stress disorder;

2.3. Episodes of Depression and anxiety;

2.4. Shock.

2.5. Sexual assault.

4.The inclusion of paragraph 2.5 was a matter of controversy and on 11 July 2016 I made an order that unless the third plaintiff filed and served an application in proceedings seeking leave to include paragraph 2.5 in the third plaintiff’s amended statement of particulars by 21 July 2016 that particular was struck out. I directed that any such application be made returnable on 4 August 2016.

5.Consistently with what was contemplated by the orders, the present application was in fact filed on 21 July 2016 and heard on 4 August 2016.

6.The orders sought in the application are:

1. That the third plaintiff be given leave to file the Amended Statement of Particulars dated 30 May 2016;

2. The plaintiffs be given leave to amend Plaintiff’s Facts, 352 as follows:

Between August 2003 and 24 August 2003, [the third plaintiff] was the subject of further short-term care arrangements with foster carers [names set out]. The Third Plaintiff alleges that he was sexually abused on two occasions by [the Foster Parent] while under their care.

7.It should be noted at this point that no amendment was sought to be made to the plaintiff’s Breach Document. The only amendments sought to be made were to the damages recoverable as a result of the presently pleaded breaches.

Evidence

8.The plaintiff relied upon the affidavit of William Mark Redpath dated 26 July 2016. He also relied upon the affidavit of the third plaintiffdated 26 July 2016.

9.The defendant relied upon the affidavits of Russell Thomas Bayliss dated 3 and 4 August 2016. It also relied upon an affidavit of service of Mr Anthony Baldock dated 1 August 2016. Two witness statements which have been filed and served for the purposes of the proceedings were also marked as exhibits on the application:the witness statement of the first plaintiffdated 30 May 2016 was Exhibit 1 and the witness statement of the third plaintiffdated 9 May 2016 was Exhibit 2.

10.The affidavit of Mr Redpath discloses the following facts:

(a)The third plaintiff disclosed to Mr Redpath on 16 September 2015 that he had been sexually abused by the Foster Parent.

(b)At that time Mr Redpath’s focus was the forthcoming directions hearing on 25 September 2015.

(c)A strike out application in the proceedings was dismissed and after that Mr Redpath’s focus was the preparing, filing and serving of the Plaintiffs’ Facts document and tender bundle. “As part of the preparation of the documents over January 2016, I overlooked revisiting these issues in the plaintiff’s facts documents. This was my oversight.”

(d)He discussed these events involving the Foster Parent with the third plaintiffagain on 9 May 2016 when preparing his Outline of Evidence. At that time he assessed the third plaintiffas being more robust and that he wished to pursue the allegation and it was therefore included in his statement.

(e)Subsequent steps were taken to identify the Foster Parent. Information is included in his affidavit as to the identity, address and phone number as well as photographs of the person (although the evidence on the application discloses that the address obtained may be for a person of a different name).

11.Mr Redpath’s affidavit annexes some file notes of the defendant relating to events during the period of foster care. Those file notes refer to the possible exposure of the third plaintiff to a domestic violence incident, but make no reference to any allegation of sexual assault.

12.The affidavit of the third plaintiff discloses the allegations that he makes about the conduct of the Foster Parent. It is not necessary to set them out in detail except to note that they involve two very serious sexual assaults on the third plaintiff who was at the time a nine-year-old child.

13.His evidence was that he recalled the events involving the Foster Parentevery six months or so,but tries not to think about them. After moving to Batemans Bay in 2014, his life became more stressful and eventually he talked to his mother about the assaults in late August 2015. He was put in contact with the MensSexual Assault Centreand obtained some assistance from a counsellor there.

14.He spoke to Mr Redpath on 10 September 2015. He did not return to counselling because of his other events in his life. He has not made any complaint to the police. He identified the person in the photograph provided by Mr Redpath and said that he was “70% certain it is him”. .

15.The affidavit of Mr Bayliss dated 3 August 2016, relied upon by the defendant, discloses the following facts:

(a)The affidavits of the third plaintiff and Mr Redpath were served on the defendant on 26 July 2016. Mr Bayliss commenced investigating the allegations upon receipt of the two affidavits. The third plaintiff was placed in the care ofthe Foster Parents between August and October 2003 by Barnardos Australia, a charitable institution.

(b)In relation to the people identified in the file notes annexed to Mr Redpath’s affidavit, Mr Bayliss attempted to locate and interviewthe persons involved in the third plaintiff’s care who were referred to in those documents. Some were, and remain,Territory employees, some have left Territory employment and cannot be located, andsome of them were employees of other institutions. There are five people identified in the file notes who he has been unable to locate.

(c)He has not been able to locate the father of the third plaintiff despite some efforts to do so. He said that he had not been able to locate the Foster Parents who had care of the third plaintiff during the relevant period.

(d)He had a process server attend an address different to that identified in Mr Redpath’s affidavit,which he understood was the address of the Foster Parent. No one was at that property and he has had no response from the resident.

(e)He does not know whether the Foster Parents would be prepared to cooperate with the defendant. He says that the passage of time has made it impossible to obtain from witnesses their independent recollections of the meetings which took place subsequent to the time of the alleged assault.

(f)He deposesto the fact that he will need to advise his client whether it is necessary to join the Foster Parent to the proceedings. He says that the nature of the allegations are such that he considers it would be necessary to join him to these proceedings as a third party which would give rise to the significant possibility that the hearing date of 14 November 2016 would be lost in order to allow the Foster Parent sufficient time to obtain representation and prepare his defence of the allegations.

16.In his affidavit of 4 August 2016 Mr Bayliss deposes to the fact that preliminary conferences have been held with employees of the Territory and Barnardos present during the interviews with the Foster Carers referred to in the file notes annexed to Mr Redpath’s affidavit. None of them have independent recollections of interviews with the Foster Parentsor the interview with the third plaintiff.

Submissions

17.As pointed out above, theplaintiff did not seek to amend the allegations of negligence. The relevant allegation of negligence is that the defendant did not return the third plaintiff to his mother’s care with the consequence that he remained in care during the period from August to October 2003. It was during that period that he alleges he was sexually assaulted. The third plaintiff, if successful on this application,wishes to contend that had he not been in care during that period then he would have not suffered the damage that he did. The plaintiff submitted that the additional claim of damages for sexual assault that arose during the period when the third plaintiff was in foster care is consistent with the principal identified in Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 (Mahony). Counsel submitted that the extent of prejudice that might be caused to the defendant was difficult to assess, but that it had both the ability to defend the claim as well as to lay off its losses by way of a third party claim against the Foster Parent. It would be a matter for the defendant as to whether or not a third party claim would be appropriate to pursue. Counsel submitted that unless the Territory could say that it would in fact make the third party claim, any consequences of a subsequent decision to bring such a claim could be dealt with later. So far as damages were concerned, he submitted that the defendant would be in a position to have the plaintiff assessed by a psychologist or psychiatrist.

18.Senior counsel for the defendant emphasised the fact that the plaintiff had not sought to expand the allegations of negligence to incorporate an allegation in relation to the initial placement with the Foster Parents or in relation to any failure to ascertain that there had been an assault. As a consequence, the case was one based on the original allegation that the third plaintiff should have been in the care of his mother at that time. Senior counsel for the defendant pointed to the factual circumstances that were disclosed in the first plaintiff’s affidavit relating to her personal circumstances and capacity to care for the third plaintiff during the relevant period. He submitted that the high point of the evidence was that, during the relevant period, even the first plaintiff was contemplating that any return of the third plaintiff to her care would have necessitated respite care. He submitted therefore that even if the plaintiff’s case was accepted there would have remained the risk of sexual assault. In that regard he made the submission that, having regard to the decision of the High Court in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 (Modbury), the plaintiff would be unable to recover as damages for the breach of duty, damages arising from the criminal behaviour of the Foster Parent.

19.Senior counsel pointed to the difficulty of investigating the claim so close to the hearing date in circumstances where there were very significant legal costs invested in the hearing proceeding over the four weeks that are allocated. So far as the position of the Foster Parent was concerned, he pointed to the uncertainty as to whether or not the Foster Parent would cooperate with the defendant and the likelihood that the Foster Parent would need to get independent legal advice having regard to the very serious allegations made against him and the prospect that those allegations may be the subject of criminal charges. He pointed to the very clear undesirability of hearing any third party claim separately and the possibility of there being inconsistent findings resulting from that course.

20.He also pointed to the delay of the third plaintiff identifying this aspect of his claim for damages and submitted that the explanation for the delay since September 2015 was not satisfactory.

21.In submissions in reply, counsel for the plaintiff also engaged in an examination of the factual basis for the claim and contended that the plaintiff’s case was that the first plaintiff had been organising methodically to get custody of her children back and that by August 2003 her evidence would be that she would be able, with family support, to have had custody of the third plaintiff but for the attitude adopted by the defendant.

Consideration

22.I address below what are, in my view, the substantial issues that are relevant to the decision as to whether or not to grant leave to amend the plaintiffs’ particulars of damage and Facts Document in the manner identified in the third plaintiff’s application.

Is there an arguable claim?

23.So far as the factual allegations that formed the basis of the claim are concerned, these are clearly arguable in the light of the evidence of the third plaintiff.

24.The basis on which the claim is made is only that the damage suffered constitutes damage flowing from the negligence of the defendant in failing to restore the third plaintiff to the care of his mother prior to the period August-October 2003. There is no allegation of negligence against the Territory in relation to the selection of the Foster Parent as a suitable carer or in a failure to detect the potential for the sexual assaults or their occurrence when the third plaintiff was in the care of the Foster Parent. Rather the manner in which the sexual assaults are said to be relevant is in a manner analogous to that in Mahony at 528-529. In that case the Court held that where an injury is exacerbated by medical treatment the exacerbation may easily be regarded as a foreseeable consequence for which the first tortfeasor is liable. Therefore if the plaintiff acts reasonably in seeking or accepting the treatment, negligence in the administration of the treatment need not be regarded as a novus actus interveniens which relieves the first tortfeasor of liability for the plaintiff subsequent condition. The plaintiff also relied upon the decision in Branaganv Robinson [2006] ACTSC 66. In that case the plaintiff was assaulted by a massage therapist. The massage was part of the plaintiff’s treatment following the car accidents the subject of the proceedings. The plaintiff was traumatised by that event. Master Harper at [248] – [249] decided that although it was a borderline case, what happened was a reasonably foreseeable consequence of the negligence of the defendants and hence something for which the defendant were liable. He did, however, note that the consequences of the incident were not of much of significance in the scheme of things. His Honour made no reference to the decision in Modbury.

25.The defendant placed considerable emphasis on the decision in Modbury, contending that while the “but for” test might be satisfied in relation to this category of damage it was not one where the scope of liability requirement in s45 of the Civil Law (Wrongs) Act2002 (ACT) would be met. The defendant particularly emphasised that any question as to the scope of liability must be determined in the light of the duty of care that has been alleged and, in that regard, it is significant that the duty was not alleged to have been breached in relation to the selection of the Foster Parent or the failure to detect the risk or occurrence of an assault.