ABC & Ors v State of Queensland & Anor [2015] QDC 321

DISTRICT COURT OF QUEENSLAND CITATION: ABC & Ors v State of Queensland & Anor [2015] QDC 321 PARTIES: ABC (First Plaintiff) AND DEC (Second Plaintiff) AND FGC (Third Plaintiff) v STATE OF QUEENSLAND (Defendant) AND HIC (Third party) FILE NO: DP49/2011 DIVISION: Trial PROCEEDING: Claim ORIGINATING COURT: District Court at Cairns DELIVERED ON: 11 December 2015 DELIVERED AT: Cairns HEARING DATE: 20 – 31 January 2014 and 24 March 2014 JUDGE: Harrison DCJ ORDER: 1) Judgment for the first plaintiff against the defendant in the sum of $320,091.23 2) Judgment for the second plaintiff against the defendant in the sum of $90,746.60 3) Judgment for the third plaintiff against the defendant in the sum of $386,058.65 4) Defendant’s claim against the third party is dismissed The Court will hear the parties on costs CATCHWORDS: TORTS – NEGLIGENCE – BREACH OF STATUTORY DUTY – Where the defendant as long term guardian of a foster child placed a foster child with the third party and her -- 1 of 84 -- 2 family which included her daughters, the three plaintiffs – Where the foster child sexually abused the three plaintiffs during the course of the placement – Whether the defendant owed the three plaintiffs a duty of care and if so what was the scope of such duty – whether there was any breach of duty on the part of the defendant – Whether any such breach was causative of subsequent psychological injury on the part of each of the three plaintiffs – Whether a finding of contributory negligence should be found against first and/or second plaintiffs – Where the defendant alleges that if it is liable to the plaintiffs, the plaintiffs injuries were caused by a breach of duty on the part of the third party and where the defendant claimed contribution and/or indemnity against the third party – Whether the third party owed a duty of care to the three plaintiffs and whether there was a breach of such duty of care S B v State of NSW [2004] VSC 514, cited, wherein authorities in matters such as this were analysed Child Protection Act 1999 (Qld) ss 4, 5A, 5B, 5D, 5E, 8, 9, 13, 82, 83A and 122 Civil Liability Act 2002 (Qld) ss 9, 11, 12, 13, 14, 35 and 36 Crown Proceedings Act 1980 (Qld) s 8 COUNSEL: R Trotter for the plaintiffs D Kelly for the defendant A Lawrence for the third party SOLICITORS: Shine Lawyers for the plaintiffs Crown Law office for the defendant Preston Law for the third party -- 2 of 84 -- 3 Introduction [1] The first plaintiff was born on 2 February 1988. The second plaintiff was born on 6 September 1989, and the third plaintiff was born on 21 April 1992. [2] The third party was born on 30 November 1965. The first, second and third plaintiffs are all children of the marriage of the third party and KC who was born on 16 February 1963. [3] On 13 November 1992, a child born on 23 July 1991 (hereinafter referred to as “the foster child”), was made the subject of a care and protection order granting long term guardianship of him to the Director General of the then relevant department until he turned 18 years of age. [4] From 2004 onwards the long term guardianship order was administered by the Department of Child Safety (Qld) (hereinafter referred to as “DOCS”). [5] From 13 December 2005 until late May 2006, DOCS placed the foster child with the third party and her husband in their home at a beach north of Cairns. Also present during the period of that placement were the three plaintiffs. From 13 December 2005 until approximately February 2006, LM a sister of the third party who was born 11 December 1990, also resided in that same household. [6] In paragraph 10 of the statement of claim, the first plaintiff alleges that the foster child entered her bedroom, in the said home, and engaged in inappropriate sexual behaviour which included inappropriate contact with her. It was alleged that this occurred over a period of time from late January to May 2006. The first plaintiff was 17 years of age at the time the foster child was placed in the home on 13 December 2005, and turned 18 years of age on 2 February 2006. [7] In paragraph 12 of the statement of claim, the second plaintiff alleges a number of incidents where the foster child entered her bedroom at the said home which included inappropriate sexual behaviour and inappropriate contact with her. She alleges that this occurred between February and May of 2006. The second plaintiff was 16 years of age throughout that period. [8] In paragraph 14 of the statement of claim, the third plaintiff alleges that the foster child entered her bedroom in the said home one night in May of 2006, and behaved in an inappropriate sexual manner. She had just turned 14 years of age at the time. [9] Throughout the period from late January 2006 to late May 2006, the foster child was 14 years of age. [10] There are no allegations of any inappropriate behaviour on the part of the foster child towards LM during the period of time in which she resided in the home shortly after his placement there on 13 December 2005. [11] The first, second and third plaintiffs have each pleaded that they have suffered psychological injury and have alleged in each case that this was caused by the negligence on the part of and/or breach of statutory duty on the part of DOCS. The proceedings have been instituted as against the defendant pursuant to the provisions of Section 8 of the Crown Proceedings Act 1980 (Qld). -- 3 of 84 -- 4 [12] The defendant has denied negligence and/or breach of statutory duty and has joined the third party in the proceedings on the basis that, if one or more of the plaintiffs is successful in their action, the defendant is entitled to indemnity or contribution from the third party because of negligence on her part. History of the Third party and Her Husband as Foster Parents [13] In October 2002, the third party and her husband applied to be foster carers.1 They were assisted in their application by an organisation known as Cairns Shared Family Care (hereinafter referred to as “CSFC”) which was associated with the Uniting Church in Australia and which worked with the then Department of Families in the care, placement and follow up of children who were placed with foster carers. [14] The Department of Families (DOCS did not take over the administration of these applications until 2004) engaged CSFC to prepare a foster care assessment which was completed on 4 November 2002.2 [15] This assessment indicated that their placement preference was for boys up to 5 years of age, girls up to ten years of age and up to three children at any one time.3 [16] Under the heading “SIGNIFICANT LIFE EVENTS” the report dealt with a number of matters, but particularly, the after effects of an incident involving the first plaintiff at Narrandera in New South Wales, when she was nine years of age when someone had pointed a gun at her head. It was noted that the first plaintiff received very little treatment in the short term after that and that there were ongoing problems which included bullying at school such that she was subsequently linked with a worker at the child and youth mental health team. There was this further entry: (the third party) is not sure how (the first plaintiff) would cope with a particularly aggressive foster child. She knows that (the first plaintiff) does not cope when she feels cornered or threatened and that such incidents trigger off anxiety attacks. For this reason, I would strongly suggest that children with such behaviours are not referred to the (third party’s family).4 [17] After talking to the third party about certain matters in her own childhood, the assessors, Helen Giles and Liz Cooney from CSFC, noted in the assessment: (the third party) felt that she could cope with children who were sexually abused provided they did not have sexualised behaviours that would put her daughters at risk. Given the age group they are interested in fostering, this should not be a problem.5 [18] I was not provided with a copy of the original approval of them as foster carers, but it would seem that that was done shortly after the assessment for a period of one year. [19] On 29 October 2003, the Department of Families received what appears to be an application for renewal of approval as foster carers dated 29 October 2003, signed 1 Application Ex 2A.5 signed by the third party on 4 October 2002 and by her husband on 3 October 2002. 2 Assessment Ex 2A.6. 3 Ex 2A.6 p 16. 4 Ex 2A.6 pp7-8. 5 Ex 2A.6 p 4. -- 4 of 84 -- 5 by both the third party and her husband.6 It was approved on 8 November 2002, effective for two years. [20] The best estimate I have as to the number of children who were placed with them, from when they first became registered up until when the certificate of approval was due to lapse on 8 November 2005, is contained in an internal report completed by Georgia Gustafson from the Matters of Concern Review Unit Complaints, Case Review and Investigation Branch of DOCS dated 21 December 2007.7 [21] She said that 58 children were placed with the third party and her husband (by DOCS and its predecessor the Department of Families) between 12 November 2002 and 8 November 2005.8 [22] When the third party and her husband were originally approved as foster carers they dealt with the Cairns North office of what is now DOCS. It is not clear when, but sometime after they commenced, they also started receiving children who were being handled by the Cape/Torres office of what is now DOCS. [23] Apparently, the Cape/Torres office managed children originally from Cooktown north and the Cairns North office children south of that. [24] It is clear that the foster child first commenced residing in the third party’s home on 5 September 2003. An authority to care for the child issued under the provisions of the Child Protection Act 1999 (Qld) (“the CPA”) was signed by Annie Roberts from the Cape/Torres office that day.9 Ms Roberts gave evidence in these proceedings that the Cape/Torres office managed the foster child because he was originally from Hopevale and had spent a considerable period of time with earlier carers in Hopevale. [25] The report of Ms Gustafson indicates that the foster child resided with the third party’s family from 5 September 2003 until 20 October 2003. His younger sister and younger brother also resided with the third party’s family at that stage.10 [26] It is clear that the certificate of approval as foster carers for the third party and her husband was not renewed on 8 November 2005, or thereabouts. [27] They were sent a reminder from the Cairns North office of DOCS dated 10 August 2005, advising them that the approval would lapse on 8 November 2005, and how they would need to apply for a renewal of the approval prior to that lapsing date.11 [28] No application as such was made prior to 8 November 2005. By that stage the third party had expressed an interest in having the foster child reside with her and her family. [29] On 19 May 2005, the foster child, during a placement at Kuranda with another foster family, committed two serious offences on a three year old child. He got the young child to place her mouth over his penis when he and the young child were 6 Ex 2A.15. 7 Ex 10. 8 Ex 10 p 10. 9 Ex 2A.10. 10 Report of Gustafson Ex 10 p 24. 11 Ex 2A47. -- 5 of 84 -- 6 alone in a bathroom in the foster carer’s home and also digitally penetrated the young child. He was charged with rape and permitting a child under the age of 14 years to perform an indecent act upon him and subsequently pleaded guilty to these charges in the Children’s Court of Queensland in February 2006. I will deal further with these matters and all relevant developments after he was charged later. [30] It is clear from all of the material that the third party developed a very close bond with the foster child from when he was placed with her. [31] Sometime after the foster child was charged with these offences and during a time when he was placed at a facility called St Luke’s Boys Home, which was run by Anglicare, the third party did express some interest in caring for the foster child. At that stage, she still had a number of young children both boys and girls in her care and it is clear that DOCS did not want the foster child residing in the home with those young children present. I will deal with these matters in more detail later. [32] Eventually, it was a requirement that all of these children be placed elsewhere before the foster child was placed with her and her family. Incident on 19/5/05 involving foster child [33] The allegations surrounding what happened that evening are contained in the police brief. They are summarised as follows: 1) The complainant child in relation to the matter is a 3 year old female who at the time of this offence resided with her mother and father and two children in care at (address supplied). 2) The defendant child in relation to this matter is a 13 year old child whom at the time of the offence was under the care of the complainant child’s mother and father. The defendant child had resided with his 11 year old brother in the care of the family for over a year. 3) On Thursday, 19 May 2005 the complainant child was having a bath with her mother in the bathroom at their residence. The only other person at home at the time was the defendant child in this matter. 4) At approximately 5.30pm the defendant child knocked on the bathroom door stating he had to do a shit as he had a sore stomach. The complainant child’s mother got out of the bath and wrapped a towel around herself leaving the complainant child in the shower. The shower actually has a small recess area at the bottom which was being utilised as a bath for the complainant child. 5) The defendant child then entered the bathroom and the complaint child’s mother went to her bedroom for a very short time and got changed into a robe and then returned to the bathroom and knocked on the door and told the defendant child to hurry up. Soon after this the defendant child exited the bathroom. 6) The complainant child also exited the bathroom and her mother took her into the child’s bedroom to get dried and dressed. At about this time the child told her mother (the foster child) told me to put my mouth on his bitie (word for penis) and suck it like an ice cream. She also indicated that the put his bitie in her moyu (word for bum). Her mother then clarified this and the child displayed what she did with her mouth which linked in with what she had said. The mother has indicated that she only left the child for approximately 1 minute. -- 6 of 84 -- 7 7) The complainant child’s mother then called the defendant child into the room and put the allegations to him and he denied such actions. 8) Later that day both the complainant child and the defendant child were medically examined in relation to this matter. The child indicated to the doctor that she had a sore vagina. …12 [34] It would seem that DOCS was made aware of the matter that evening and that, initially, the foster child ran away after being confronted by the young child’s mother. He was found and urgent temporary accommodation was organised by crisis care for the evening of 20 May 2005.13 [35] The foster child was actually placed with St John’s shelter in Cairns on the night of 20 May 2005, and left of his own volition without authority on 22 May 2005.14 [36] In the meantime, the matter was referred to SCAN and was eventually followed up by the police following the SCAN meeting.15 [37] The foster child was again located and on 2 June 2005, was interviewed by the police in respect of the offending.16 He made admissions about his offending on that date in the presence of a support person and he was charged with one count of rape and one count of unlawfully permitting himself to be indecently dealt with by a child under the age of 16 years, with the circumstance of aggravation that the child was under 12 years of age. [38] I do not have a copy of the bail undertaking in relation to his original appearance before the court, but it is clear that he was granted bail because Crisis Care organised urgent accommodation for him that night and it is apparent that shortly after that he was placed at St Luke’s which was at a beach north of Cairns adjoining the beach where the third party and her family resided. [39] It would not appear as though there was any residency condition placed on his bail undertaking. DOCS later contacted the police and Youth Justice with a view to varying his bail conditions and, in an affidavit sworn on 29 September 2005, Vicki Oxnam a team leader with DOCS swore that there were no bail conditions relating to his residence in relation to those two charges which were then outstanding and also swore how he was unwilling to comply with any directions from the department as to where he should reside.17 Subsequent Developments [40] It appears that the third party started making enquiries about the foster child on or about 10 June 2005. That day Amanda McCallum from CSFC wrote to Michael Oates the Child Safety Officer for the foster child with DOCS indicating that the third party had asked a number of questions about the foster child and her role in his life. Ms McCallum reminded Mr Oates that the foster child had a good relationship with the third party and that he tends to run there from time to time. She then went on to say: 12 Ex 2A38 p38. 13 Crisis Care notes Ex 2A30. 14 Case note Michael Oates Child Safety Officer dated 23 May 2005 Ex 2A32. 15 SCAN team minutes Ex 2A.36 dated 23/05/05. 16 Crisis Care case notes dated 2 June 2005 Ex 2A37 and Police Brief Ex 2A.38. 17 Affidavit of Vicki Oxnam Ex 2O.21. -- 7 of 84 -- 8 Given his situation at the moment (the third party) really wants to assist (the foster child) when he turns up but realises there are boundaries for her due to all the other kids she has in her care. (The third party) was wanting to get together and discuss this as soon as possible and I am happy to do this in the next few weeks. …I was wondering if you could give her a call and explain how (the third party) can support (the foster child) without crossing any boundaries and putting herself or (the foster child) in a risky place. Whether this involves (the third party) being able to visit him or (the third party) having guidelines around what to do when he turns up, I will leave this up to you.18 [41] That same day Mr Oates responded as follows: Spoke to (the third party) today—advised her that for most of the info she needed she could speak to St Luke’s who are now caring for him – eg visit permission, times etc. I advised her that from a department viewpoint we do not want to see (the foster child) exposed either to the risk of offending again or to be accused of offending. Hence, if small children are present it is best if (the foster child) is not around them, and especially not alone. I advised that St Luke’s intend to get a psych assessment done on (the foster child) to assess risk of reoffending, and until it is known it is probably best if contact between (the foster child) and (the third party) and (her husband) takes place when other children are not present.19 [42] On 15 June 2005, Anneke Van Woerkom the team leader and Mr Oates of the Cape/Torres office spoke to Jonathon Bankes the manager of St Luke’s where the foster child was then placed. Mr Bankes had previously worked for the department and its predecessor from 2001 onwards, but had taken leave of absence to undertake the position at St Luke’s. He said that he returned to the department sometime in mid to late September 2005.20 From November 2005 onwards he acted in Ms Van Woerkom’s position.21. [43] During the course of that meeting, Mr Bankes informed Ms Van Woerkom that the foster child seemed to need firm boundaries and was currently a handful. He also recommended that a psychological assessment take place as soon as possible and that, depending on the advice, it would be good for the foster child to receive counselling eg. with Nick Rayner of Relationships Australia. He also recommended that a placement meeting was needed as soon as possible, preferably the following week.22 He went on to say that he was aware of the allegations involving the earlier incident with the child.23 [44] When asked further about whether any consideration was given after that to any counselling in the interim he replied: yes, I know Nick Rayner was mentioned before. I don’t – as I said, I don’t recall, specifically, what, if anything,, was put in place but I certainly remember that my time as program manager, when the child was in my care or in St Luke’s care, that he certainly could benefit from counselling around not only his sexual offending but also his – I guess his attachment issues and trauma related issues and experience of being in care because it was clear that he wasn’t – it was clear that he needed some help.24 18 Email Ex 2A.41. 19 Email Ex 2A.40. 20 T7-57 L 22-23. 21 Evidence Van Woerkom T7-40 L 46-47. 22 Case notes Van Woerkom dated 15 June 2005 Ex 2A.42. 23 T7-50 L 14-18. 24 T7-52 L 13-20. -- 8 of 84 -- 9 [45] When he was asked in evidence why he made the suggestion about Mr Rayner, Mr Bankes said that this would have been in relation to his bail for sexual offending and around a risk of sexual offending.25 [46] Crisis Care became involved again on 29 June 2005, when contacted by Mr Bankes after an incident in which the foster child and others were involved in physical altercations with each other and when the foster child and another child were banging the wall and screaming that they were going to kill themselves. The relevant residential worker, Cassie Biggs, indicated to Crisis Care that the foster child had left and that she had sought arrangements for him to be placed elsewhere if he returned to St Luke’s that night and he was, in fact, moved to another residence.26 [47] Mr Oates formally requested a copy of the police brief from police prosecutions on 29 June 2005, indicating that he required it for the purposes of making a risk assessment on the foster child’s likelihood of offending again. The police brief was received by him on 1 July 2005.27 [48] Mr Oates obviously then referred the foster child for an assessment to Ian Ritchie, a psychologist, who saw him on 11 July 2005, and who provided a report directed to Mr Oates, Department of Child Safety Cape/Torres office dated 13 July 2005. 28 [49] It is clear that Mr Ritchie was provided with a copy of the police brief and with the relevant DOCS case notes. [50] He discussed the offending in some detail with the foster child and the foster child did admit the offending. Mr Ritchie, however, noted that there were some concerning elements regarding his explanation of the offending. Firstly, the foster child denied using force or coercion on his victim, but failed to consider the natural power imbalance between them ie an older boy telling a little girl what to do. Secondly, he noted that the foster child had sought to include the victim’s apparent acceptance of involvement as an excuse for his offending behaviour. He went on to say that, ‘at the very least, (the foster child’s) subsequent offending behaviour indicated that he had no apparent boundary regarding the propriety of his actions at the time.’29 [51] Under the heading ‘SUMMARY’ commencing on page seven of his report he said: 53. (the foster child’s) explanation of his sex offending was indicative of his need to atone for the wrongdoing without demonstrating an understanding of the dynamics and beliefs underlying such behaviour. In his explanation he failed to appreciate the power imbalance present between himself and the victim and he sought to include her in his decision to touch her vagina. As such, (the foster child’s) explanation and present level of understanding wasn’t sufficient to ensure no relapse of offending behaviour. 54. It seemed likely that (the foster child’s) beliefs concerning women, sex and male sexual entitlement similarly played a part in his offending behaviour. It wasn’t likely that he had been exposed to sex education which included material about the propriety 25 T7-50 L 9-13. 26 Crisis Care notes Ex 2A.43. 27 Ex 2A.44 letter from DOCS to prosecutions section with hand written note confirming receipt on 1/7/05. 28 Ex 2A.45. 29 Report Ex2A.45 [30-31]. -- 9 of 84 -- 10 of sexual conduct and boundary issues. Exposure to such education would probably assist (the foster child) to conform to appropriate sexual rules of conduct. 55. (the foster child’s) present assessed level of risk for committing further sex offences was low, but not negligible and levels of risk in adolescent offenders remain more fluid just as adolescence was fluid. It was considered that (the foster child) required appropriate intervention to lower his level of recidivism risk. Opinions and Recommendations 56. It is my opinion that (the foster child) presents as at low risk for committing further sex offences. 57. It is my opinion that (the foster child) attend upon an experienced practitioner for some sex offender treatment. 58. It is my opinion that (the foster child) receive some appropriate sex education. [52] Mr Oates had clearly read that report by 15 July 2005, because he referred to the opinions and recommendations in a case note that day.30 He confirmed that the foster child had appeared in the Children’s Court that day and that Mr Bankes from St Luke’s was present as a support person. He confirmed that a copy of the report would be provided to Legal Aid who were to represent the foster child and that the recommendations within the report would be passed on to St Luke’s. He then noted ‘CSO is organising appropriate interventions’. In evidence he said that that was a reference to himself because he was the relevant child support officer.31 [53] He then went on to say that he was going to organise interventions that were deemed appropriate coming from the report and then when asked as to what he understood they were to be, he said: I am presuming based on what I now know, with much greater experience and training, that we – that it – the appropriate counselling, etc, should have been organised with a forensic psychologist or someone experienced in sex offending treatment. At the time, I may not have – have fully realised the – that – sorry – at the time of – of this, I may not have fully realised this.32 [54] It appears that the foster child became increasingly difficult to manage for those at St Luke’s because of his behaviour generally and because he continued to visit the third party’s family in circumstances where he had no permission to do so. On 16 August 2005, Ms Roberts from DOCS spoke to Mr Bankes. She noted that she had seen the foster child at the home of the third party. Further, Mr Bankes informed her that the foster child had no boundaries and continued to make inappropriate sexual remarks to boys in the house, who themselves were the victims of sexual abuse, and that he had been warned that if he continued with this behaviour there would be no option other than Cleveland for him. [55] The reference to Cleveland appears to be to the Cleveland Youth Detention Centre in Townsville. She also notes that she gave Mr Bankes some names of persons who 30 Case note Ex 2A.46. 31 T6-85 L 34-38. 32 T6-85 L 43- T6-86 L 1. -- 10 of 84 -- 11 were experienced in sex offender counselling that may assist them to find the appropriate person for the foster child.33 [56] It is not clear to me why the onus was being passed onto St Luke’s in relation to counselling after Mr Ritchie had reported back to DOCS and after Mr Oates had said in the earlier memo that he would attend to the recommendations. [57] On 19 August 2005, the team leader Ms Van Woerkom prepared a case note as a result of a phone call from Mr Bankes. She noted that Mr Bankes was complaining about the behaviour of the foster child namely:  It was very difficult to get him to go to school, he seemed to just want to play around and not show any responsibility;  The school timetable had already been changed a few times to adapt to his needs;  The staff feel that they have come to the end of the road with the foster child and will discuss the matter in a team meeting which was to start at 10.00am that day;  That the foster child just wanted to hang out with the third party’s people watch plasma tv and hang around with the kids there;  That the foster child stated that he wanted to go to Cleveland but that it was agreed that this was not an option as he was still on bail;  The foster child was easy to get along with and was very funny most of the time but the lack of commitment and responsibility was very concerning.34 [58] In the course of that conversation, she indicated that she was not available to attend the meeting at St Luke’s, but would discuss the matter with Ms Roberts who knew the third party well and would hold a meeting with the third party to discuss the consequences and rewards for the foster child. [59] It appears that the situation with the foster child at St Luke’s got worse. Ms Van Woerkom, in her case notes dated 2 September 2005, noted the contents of a further phone call from Mr Bankes where he had the following concerns:  That the foster child was not engaging in the sex offender counselling program as directed;  That he was not partaking in any other activities organised for the boys;  That he roamed the streets and refused to come or stay home as directed;  That with regard to his offences it was very concerning that he might offend again as a result of not enough or sufficient supervision;  He stays with the third party and there are many other children there.35 [60] It is not clear what happened with sex offender counselling. There was no doubt that the foster child did not cooperate, but not one of the witnesses in this case was able to confirm that any appointments were ever made. Similarly, there is nothing 33 Case notes Annie Roberts Ex 2O.10. 34 Case notes Anneke Van Woerkom Ex 2O.11. 35 Case notes Anneke Van Woerkom Ex 2O.12. -- 11 of 84 -- 12 in any of the documentation that has been tendered which confirms that any such appointments were made. [61] Mr Bankes was questioned about the need for counselling in cross-examination where the following exchange appeared: Well you knew from various sources within the department that various people were very concerned about the risk and they regarded it as a matter which should be performed ASAP, right back in June and July of 05 didn’t you? --- Yes. And you, yourself knew that there was a risk? --- Yes that’s correct. Well, in simple language, can you tell us why the foster child did not receive the treatment in a timely way? --- I can’t exactly remember. My understanding is that he would not engage in counselling. Well --- I don’t specifically remember what counselling was arranged for him. Well, was any counselling arranged for him, and if so, with whom and when? ---I believe there was counselling arranged through Nick Rayner, but I don’t – I can’t – I can’t remember whether – whether, you know, specifically, whether that happened. There would be documentation to support that fact, if it were a fact. ---That is a fair assertion.36 [62] Ms Van Woerkom suggested that Mr Bankes try to put consequences in place if the foster child did not comply with directions such as not being allowed to go to the third party’s place. She enquired as to when he would have to appear in court again. She indicated that she agreed with a collaborative approach and that she would back Mr Bankes and any measures he saw fit to work intensively with the foster child. She spoke to Ms Roberts who indicated that she would talk to the third party about these matters. Under the heading “Assessment/Issues” she said ‘(the foster child) is not behaving appropriately in following directions to deal with the sex offences.’ [63] On 19 August 2005, a placement referral form was completed in relation to a possible referral to a new Anglicare group home in Mareeba. There is no evidence to suggest that that placement ever went ahead, but the document which appears to have been prepared by Leanne Julian, with Ms Van Woerkom noted as the team leader, did include the following entries in respect of the foster child  (The foster child) displays serious lack of respect for females  Difficult to engage And there was a further entry later in the document which said:  Immediate counselling to deal with sexualised and challenging behaviour and the (sex) offending. 37 [64] In evidence Ms Van Woorkom said that she agreed with the recommendation which apparently came from Ms Julian in relation to immediate counselling and when asked whether it was carried out she said ‘I know that lots of attempts were made, but I don’t know if it was actually completed or that any assessment was made afterwards. I can’t recall.’38 36 T7-68 L 33-T7-69 L 2. 37 Ex 2A48. 38 T7-35 L 18-23. -- 12 of 84 -- 13 [65] By 9 September 2005, it would appear that Mr Bankes’ patience with the foster child was running thin. He spoke to a Nicola Tune on the telephone that day advising her that he thought that the placement had broken down and that the final build up to this was:  Non compliance to programs;  He is severely impacting on the other young people and the staff;  Mr Bankes was assaulted the day before by his cousin but the foster child was the leader who created the situation. [66] In evidence Mr Bankes described the foster child as quite a large well-built fourteen year old who at times threw his weight around.39 [67] Ms Tune eventually left the matter to Ms Van Woerkom to follow up. [68] In the meantime, Amanda McCallum from CSFC organised a meeting with the third party and Mr Bankes on 9 September 2005, although, Mr Bankes did not attend. She noted that the issues addressed at that meeting were:  The foster child case plan/current situation;  Appropriateness of contact between the third party’s family and the foster child;  Carer’s relationship with the foster child;  How can contact be facilitated between the foster child and the third party and her husband without putting other children in their care at risk.40 [69] It seems that Mr Bankes was successful in having him removed from St Luke’s for a short period on 9 September 2005. A note from Ms Roberts dated 12 September 2005, confirms that he was placed at St John’s on the following weekend. St John’s was a shelter run by the same organisation as St Luke’s, but separately managed. Accommodation was also organised at the Tropicana Motel with youth worker support for 12 and 13 September 2005.41 [70] On 12 September 2005, the third party rang Ms McCallum at CSFC. She had heard that the foster child’s placement at St Luke’s had broken down and suggested that the foster child could come and stay with her husband on Lizard Island for a week where he was working. Ms McCallum expressed her concerns to the third party about that, but it seems that arrangements were made with the Cape/Torres DOCS office and the child did eventually go. [71] This lead to a formal complaint from Liz Cooney at CSFC to Ms Van Woerkom at DOCS.42 At the very least, there was a real breakdown in communication between CSFC and the Cape/Torres office of DOCS at that stage. [72] It was obvious that DOCS was having considerable difficulty placing the child by late September. On 22 September 2005, Ms Julian from DOCS spoke to Shaun McIntyre from Anglicare trying to organise a short term placement at St Johns or St Luke’s. This placement was for the foster child on his return from Lizard Island the following Sunday. Mr McIntyre recommended that Mr Bankes advise about suitability and options.43 39 T7-46 L 27-31. 40 Case notes Amanda McCallum Ex 2A.49. 41 Case notes Annie Roberts Ex 2O.14. 42 Complaint document Ex 2A.52. 43 Case notes Leanne Julian Ex 2O.15. -- 13 of 84 -- 14 [73] Ms Julian spoke to Mr Bankes the following day and he indicated that he was unable to place the foster child because he was unable to work with him previously due to his behaviour and non compliance.44 Towards the end of September 2005, DOCS placed the foster child with another carer, but it is clear that he left that carer and went to the home of the third party. At that stage the third party was away and a boyfriend of her second daughter, the second plaintiff, had reported the fact that he turned up there. Ms Roberts also indicated that she took him to court that day where the solicitor again explained the bail conditions to him. She also explained how she took him back to her office and explained to him how he could not go to the third party’s home.45 [74] In evidence, she was asked what could happen to him if he continued to reside other than where the department formally placed him in breach of his bail and she indicated that she would have got in touch with Youth Justice and that Youth Justice would contact the police and that may lead to his bail being revoked.46 [75] That also seems to be consistent with advice she received from the Juvenile Aid Bureau as set out in her memo of 28 September 2005.47 [76] By this stage the department had obviously had enough of the child coming and going as he pleased and it seems that they made approaches to the Queensland Police Service to have his bail conditions varied. Detective Sergeant Gooiker from the Cairns Juvenile Aid Bureau prepared a memo to be forwarded to Police Prosecutions to recommend that the bail be varied such that he was not allowed to attend at the premises of the third party and that he was required to reside at a place where directed by DOCS. In the memo he said that this was being done at the request of DOCS48. The application to vary the bail came before the Childrens Court on 4 October 2005, and the following conditions were added: 3. The defendant shall not attend within 25 metres of, enter or remain at (address of third party); 4. The defendant is to reside at a placement as directed by the Department of Child Safety.49 [77] Ms Van Woerkom was cross-examined about going back to court and obtaining further bail conditions and she agreed that she was the one who made the approach to the police to have those additional bail conditions inserted.50 [78] The affidavit of Vicki Oxnam sworn on 29 September 2005, was used in support of the application to vary bail. In paragraph three of that affidavit she said: there was some difficulty finding an alternate placement for (the foster child), due to his behaviour and because of the charge of rape against him. A foster care placement of residential placement where other children were residing were both excluded due to the safety considerations of other children. 44 Case notes Leanne Julian Ex 2O.16. 45 Notes Annie Roberts Ex 2O.18. 46 T6-35 L 4-10. 47 Ex 2O.18. 48 Memo Sergeant Gooikier Ex 2A.59. 49 Copy bail undertaking Ex 2A.69. 50 T7-39 L 40-T7-40 L 9. -- 14 of 84 -- 15 [79] In paragraph 11 she said: it is clear that (the foster child) is unable and unwilling to comply with any direction from the department. Given his sexual offences against a young female now before the court this places constraints upon the department on where he can be placed. If he does not comply then there is no safe place the department can offer this young man. He is not well connected within the community and is at risk if he has no placement. He is also at risk if he self places where there are young female children. [80] Interestingly, Ms Roberts, who had quite extensive dealings with the foster child at about that time, said in evidence that she was not aware of the earlier psychological report.51 [81] When it was put to her that she must have been aware that the child posed a risk to the four girls in the household she replied ‘I would say that any one who committed any sex offence was a – was going to a risk to any other child’.52 [82] Later it was put to her that the third party was somewhat naïve about the foster child and she replied ‘I don’t know if naïve is the right word. There certainly did not seem to be any insight into the seriousness of the offence that he committed at Kuranda.’53 [83] She then agreed that the third party did not seem to have a full appreciation of the potential risks to the children and that that concerned her. She also said that she had previously run a sexual assault service in Cairns for ten years.54 [84] The extent to which the relationship between the foster child and the management at St Luke’s broke down is very well illustrated in a case note dated 16 September 2005, from Sarah Edwards of the Cape/Torres office of DOCS. [85] At approximately 11.00am that day, Mr Bankes attended at her office with the foster child and one of the workers from St Luke’s. Mr Bankes was clearly frustrated with his inability to control the foster child and explained to Ms Edwards why the child was being exited from St Luke’s. He gave three reasons initially namely: 1. Not following directions; 2. Consistently bad behaviour; 3. An incident the previous night when the lights had been turned off at St Luke’s. [86] He then went onto say that his main concern was that the foster child had got his cousin to attack Mr Bankes. The foster child was present for this discussion and was denying that this happened. [87] Ms Edwards was expressing concern that Mr Bankes was speaking about the child in front of him and conveyed those concerns to Mr Bankes. Mr Bankes told her that another issue was that the foster child refused to attend what was referred to as a choice program. 51 T6-36 L 42-46. 52 T6-46 L 20-23. 53 T6-52 L 46-T6-53 L2. 54 T6-53 L 4-13. -- 15 of 84 -- 16 [88] Ms Edwards referred to the psychological report (obviously that of Mr Ritchie) and said that the foster child was unlikely to re-offend again. This was clearly an over simplification of what was actually contained in the report. [89] Mr Bankes made it clear that he had concerns about what the foster child may do when he was effectively going wherever and whenever he liked. At one stage, he said that the foster child could abuse any of the children in the neighbourhood. At another stage, he said that the foster child ‘could abuse little children playing on the street with their bikes.’55 [90] In response to that final comment, Ms Edwards reminded him again of the psychological report again interpreting it to mean it was unlikely that the foster child would reoffend and he indicated that he did not agree with that report. [91] This note is significant in that it deals with the concerns of Mr Bankes as at 16 September 2005, bearing in mind that it was only shortly after that he returned to DOCS and, in November 2005, became the Team Leader of the Child Safety Officer responsible for the foster child. [92] Reference was also made to a report from St Luke’s to DOCS dated 9 November 2005, which summarises the behaviour of the foster child during the period of time he resided at St Luke’s.56 [93] It is obvious that Mr Bankes could not have completed this report because he had already left St Luke’s by then and gone back to DOCS. [94] This report deals with a lot of the behavioural matters which I have already summarised, but in some areas does go further. At one stage the report says: (the foster child) has highly sexualised behaviours. He continually used inappropriate references to acts of a sexual nature and is not shy when talking openly about females in relation to sex. (The foster child) had engaged in inappropriate discussions with staff and (sic) St Luke’s and has inappropriately touched a female worker. (The foster child) does not feel he is exhibiting inappropriate behaviour and does not adhere to the staff’s direction on what is appropriate and what is not in relation to individuals’ personal space and sexual conversation. (The foster child) has a history which indicates these behaviours and staff made an effort to address these inappropriate advances, conversation and actions with the utmost sensitivity and explanation of what is appropriate and what is not. (The foster child) does not like to take responsibility of his actions in most forms of his daily routine. He likes to lay blame on others and does not accept responsibility easily.57 [95] Attempts were made on trial to explore the allegation of inappropriate touching of a female worker, but nothing was forthcoming beyond what was contained in that report to DOCS. [96] It is not clear from the documentation, but there were a number of short term placements of the foster child after he stayed at St Luke’s. 55 Case note of [Sarah] Edwards Ex 2A.67. 56 Ex 2A.71. 57 Ex 2A.71 p 3. -- 16 of 84 -- 17 [97] A case note dated 3 October 2005, from Ms Julian confirms that school arrangements were being made at Gordonvale State School that day, but it is not clear where he was residing then.58 [98] A case note dated 18 October 2005, from Ms Roberts confirms that he was residing with an alternative carer at that stage and that there was some suggestion that he may try and enrol at Djarragun College as a boarder.59 [99] A case noted date 25 October 2005, from Ms Van Woerkom confirms that he was residing with a different named carer at that stage and that there were difficulties with him not attending school and that the third party had contacted the then carer and informed her that she had found him walking along the highway one afternoon.60 [100] A case note from Ms Van Woerkom dated 26 October 2005, indicated that the then carer was not able to look after the foster child and that DOCS were urgently looking for another placement. Ms Van Woerkom spoke to the principal of Gordonvale State High School who confirmed that the foster child was swearing at and abusing some teachers and that there would be disciplinary consequences. He did not wait to be dealt with by the principal and left the school and, as a result, he was suspended for two days. At that stage Ms Van Woerkom was hopeful that there were other suitable carers, but she was advised by Neari Van Hooren, another employee of DOCS, that those carers had since changed their minds about having the foster child and that Ms Van Hooren was continuing to look for a further placement.61 [101] Another foster carer was organised and it was clear from a case note from Ms Van Woerkom dated 14 November 2005, that, by then, the new carer was experiencing difficulty with the foster child. The then foster carer expressed concerns about the fact that young lads would be going into the bedroom of the foster child and staying there with him. She obviously thought that that was inappropriate because she did know something of what was referred to as the rape charge. When told that he was not allowed to have friends stay over he became very aggressive towards her and started swearing at her. The foster carer also expressed concerns about the fact that he was doing nothing all day because he was not being accepted at school. She also expressed concerns that the foster child may become violent towards her if his friends did not come to stay over at the weekend. Ms Van Woerkom noted that the foster carer appeared weary and increasingly concerned about the foster child’s reaction when he gets angry and she suggested that a more suitable placement be found.62 [102] There was a further case note by Ms Van Woerkom on 17 November 2005. Apparently, the foster child had made it clear that he would invite his friends to stay overnight in spite of what the department said and what the foster carer said. He stated that ‘he did not care what the fucking department wanted’. The then foster carer indicated she was scared of what the child would do and spoke of inappropriate sexualised behaviour displayed by the foster child. She did not go 58 Case note Ex 2O.23. 59 Case note Annie Roberts Ex 20.24. 60 Case note Anneke Van Woerkom Ex 2O.25. 61 Case note Anneke Van Woerkom Ex 2O.26. 62 Case note Anneke Van Woerkom Ex 2O.27. -- 17 of 84 -- 18 into detail but stated ‘she had not seen them in bed together.’ She went on to say that the child was intimidating her by walking very close behind her and deliberately climbing out the window and standing on a ledge to scare her. Ms Van Woerkom agreed that they would have to get a different placement and she discussed protective measures with the foster carer.63 [103] It is not clear from the material where he was in early November 2005, but a referral to the Innisfail Youth Shelter was prepared on 17 November 2005, and an authority to care under the provisions of the Child Protection Act 1999 (Qld) was issued to the Innisfail Youth Shelter.64 [104] It appears that the foster child absconded, however, when he was being sent down to Innisfail by bus. DOCS was concerned that he may have been with the third party at that stage, although there was no evidence of that presented to the Court.65 [105] On 19 November 2005, Ingrid Geissler from Crisis Care completed a critical incident report form indicating that the child had absconded from his placement with the Innisfail Youth Shelter. At this time he was on bail for rape and indecent dealing offences and was in breach of his bail conditions, namely, that he reside at a placement as directed by DOCS.66 [106] On 17 November 2005, the foster child’s enrolment at the Gordonvale State High School was formally cancelled because of his lack of attendance.67 [107] A report from the Innisfail Youth Shelter dated 29 November 2005, to Mr Oates at DOCS confirmed that he finally arrived at the shelter on 21 November 2005. As summarised therein, however, on the evening of 24 November 2005, he stole a motor vehicle from the shelter in Innisfail and drove it to the third party’s home north of Cairns.68 [108] The foster child was detained fairly quickly and charged in relation to the vehicle. A case note from Janita Colahan from DOCS confirmed that he appeared in the Childrens Court that morning and that he was remanded in detention on these new matters until 21 February 2006.69 [109] He was taken to the Cleveland Youth Detention Centre and the centre advised Mr Oates of this in writing on 28 November 2005.70 [110] Even prior to his detention, it was clear that the third party was expressing an interest to both the Cape/Torres office and the Cairns North office of DOCS for the child to come and reside with her. At that stage it is not clear just how many foster children she had with her, but that they were all of either pre-school or primary school age. Further, it appears that they were being managed through the Cairns North office of DOCS. 63 Case note Anneke Van Woerkom Ex 2O.28. 64 Referral and authority Ex 2O.74-75. 65 Crisis Care notes dated 18 November 2005 Ex 2A.77. 66 Report form Ex 2A.78. 67 Letter and annexure Ex 2A.79. 68 Report Ex 2O.83. 69 Case note Janita Colahan Ex 2A.81. 70 Letter from Department of Communities dated 28 November 2005 Ex 2A.82. -- 18 of 84 -- 19 [111] On 8 December 2005, Mr Oates prepared a case note of a telephone conversation he had with the foster child who was then in the Cleveland Youth Detention Centre. In response to a query from the child about where he would be staying upon release he advised him that the third party was still on the agenda.71 [112] This appears to be consistent with what he included in a document signed by him on 30 November 2005, when the child was admitted to the Cleveland Youth Detention Centre. Under the heading “Plans for post release placement support” he wrote: Assessment of suitability of (the third party) as carer: Assist into education/vocational training Support/counselling etc as needed.72 [113] In evidence he said that he had no recollection of what the plans were for the foster child on his release and that he had no input whatsoever in relation to his bail conditions when he was released.73 [114] By this stage DOCS were having real difficulties in terms of where they could place him. Mr Bankes agreed, in cross-examination, that they were desperate to find a placement and that no one wanted him.74 [115] Something had to be done because of the expiry of the third party’s foster carer approval on 8 November 2005. I note that Pat Anderson, the manager of Cairns North office of DOCS, issued an approval for the third party and her husband to be limited carers to cover the time that it may take to arrange placement for the children in her care as of 9 November 2005.75 [116] This document predates an application for approval dated 10 November 2005, completed by the third party and her husband.76 [117] In her evidence Ms Anderson made it clear that, before she had indicated to the third party and her husband that, if they were to care for the foster child, the young children placed with her would have to be placed elsewhere. She confirmed that this was because of the earlier offending on the part of the foster child. [118] On 4 November 2005, Narissa Skarabot from DOCS sent an email to Liz Cooney at CSFC confirming that she had received an approval for foster care application in the mail from the third party and her husband. She queried why that was the case because she thought they were resigning as foster parents.77 [119] Ms Cooney emailed back the same day indicating that the third party was resigning and that the application could be left. She noted, however, that the third party did not think that the children would be removed from her care prior to her authority as a carer expiring. Ms Cooney indicated that Ms Anderson had mentioned to her that 71 Case note Oates Ex2A.86. 72 Detention centre admission report Ex 2B3. 73 T6-77 L 45-T6-78 L25. 74 T7-69 L35-41. 75 Approval decision Ex 2A.70. 76 Application Ex 2A.72. 77 Email part of Ex 2A.73. -- 19 of 84 -- 20 she would be prepared to risk manage those children beyond the expiration of the original authority which would have expired on 8 November 2005.78 [120] There is no reference in the relevant documentation about what was going to happen to those children although it was apparent from the evidence of Ms Anderson that DOCS had made it clear they did not want the young children in the same residence as the foster child. The foster child remained in detention at the Cleveland Youth Detention Centre until 13 December 2005, when he was granted bail in the Childrens Court.79 [121] In the meantime, the third party and her husband made a formal application which they both signed on 8 December 2005, for approval as approved foster carers. On page eight of that document under the heading ‘details of subject children to be placed,’ the name of the foster child was inserted with the proposed duration of placement being until the end of his guardianship (which would have been until age 18), but that was also crossed out. There was no reference to any other foster children in that document.80 [122] It was accepted that, after the foster child was granted bail on 13 December 2005, he was flown back to Cairns from Townsville and then resided with the third party. [123] There is little documentation in the material provided as to what role DOCS played in what became the ultimate relevant bail conditions. The undertaking as to bail was signed on at Townsville on 13 December 2005, and had the following special conditions: 3. That the child reside at (the third party’s address) at all times whilst on bail. 4. That the child not leave those premises between 6.00pm and 8.00am unless in the company of an adult approved by the Department of Communities. 5. That the child agree to and comply with conditional bail program.81 [124] Mr Bankes who was the relevant team leader at the time was certainly aware as to how bail could be used to try to enforce where the child resided. He conceded that the child could be picked up on a breach of a bail by notifying Youth Justice who then would be able to have the bail revoked and have the Queensland Police Service pick the child up.82 [125] He was referred to bail conditions 3 and 4 which were imposed on 4 October 2005. He said that he was familiar with those conditions and was aware that the child was clearly breaching condition number 3 when he continued to attend at the premises of the third party. He agreed that he could, in those circumstances, have informed Child Safety and/or Youth Justice of these breaches.83 [126] The reference to Department of Communities in paragraph four of the conditions imposed on 13 December 2005, would appear to relate to the Youth Justice Service. Further, this court was not provided with a copy of a conditional bail program, but 78 Email from Liz Cooney part of Ex 2A.73. 79 Court details document completed by Youth Justice Service Ex 2B.5 and bail undertaking Ex 2B.6. 80 Application form Ex 2A.87. 81 Ex 2B.6. 82 T7-46 L18-25. 83 T7-53 L32-T7-54 L5. -- 20 of 84 -- 21 from the information contained in the Youth Justice file, there clearly was one in place until he was ultimately dealt with for the original charges and the additional charges for unlawful use of a motor vehicle and driving without a licence stemming from the incident when he took the car in Innisfail. [127] On 16 December 2005, the child appeared for the first time in the Childrens Court of Queensland at Cairns. He pleaded guilty to all offences that day and a presentence report was ordered and the matters were adjourned until 24 February 2006.84 [128] It does not appear as though an appropriate authority to care document was completed on or about 13 December 2005. On 27 February 2006, Mr Oates issued an authority to care for child to the third party and her husband in respect to the foster child which was back dated to 13 December 2005. It was never explained why this happened, but there is a note at the bottom of the document to the effect that it was back dated to allow for what is described as an FTB claim. 85 I presume that that was probably to assist the foster carers in making a claim for some allowance. [129] As Ms Gufstafsen said in her report, it is unclear who made the decision to place the foster child with the third party and her husband.86 This did not become any clearer on trial despite the number of witnesses from DOCS who were called. [130] What is clear, however, is that the application for foster carer approval completed 8 December 2005, was treated by the Cape/Torres office of DOCS as an application for approval as a relative carer. [131] At or around the time the foster child went to live with the third party and her family the Cape/Torres office of DOCS engaged Cherie Schaeffer, a former employee of DOCS then practicing as a psychologist, to prepare an assessment document headed ‘relative carer assessment resource’. [132] Ms Schaeffer gave evidence in these proceedings and she said that she attended at the premises on 18 December 2005, and that she completed a report dated 21 December 2005.87 [133] After she provided her report Stephanie Fielder the acting manager of the Cape/Torres office refused to approve the application for relative carer on 13 January 2006.88 [134] She noted the following concerns on the relevant form at the time: Discuss - Concerns from when they previously were approved (ie they were deregistered) Carers’ inability to acknowledge risk Sexual assault – what is planned for protection of other chn? 84 Court details report Ex 2B.7. 85 Case notes and authority to care for child dated 27 February 2006 Ex 2O.31. 86 Ex 10 p 52. 87 Copy report Ex 2A.92. 88 Copy foster carer approval document Ex 2A.88. -- 21 of 84 -- 22 If we approve – need conditions, structure, support, monitoring in place. [135] It is not particularly clear what happened from there. Ms Fielder did not give evidence in these proceedings. A further document dated 2 February 2006, was completed by Ms Van Hooren from DOCS Cape/Torres office.89 [136] When she gave evidence, Ms Van Hooren had no recollection of completing the document or what she did but she said that she would have followed up the concerns addressed by Ms Fielder with Ms Schaeffer. The four paragraph document deals with the matters raised by Ms Fielder but shows, at best, that all she did was talk to Ms Schaeffer. [137] On that same day, Ms Fielder then endorsed the foster carer approval document as follows: 2 February 2006 – Approved as relative carer for (the foster child) need to ensure appropriate support and monitoring. [138] By the time that formal approval was given the foster child had been residing with the third party and her family for just over seven weeks. [139] The foster child was eventually dealt with in the Childrens Court of Queensland at Cairns on 24 February 2006, in relation to the rape and indecent treatment charges from Kuranda and the unlawful use and driving without a licence charge stemming from the incident at Innisfail. [140] He was placed on probation for a period of three years with special conditions in relation to undertaking adolescent sex offender’s treatment and in relation to undertaking a cognitive skills program. He was also sentenced to six months detention which was to be served by means of a Conditional Release Order. This meant that he was not required to spend any further time in detention.90 [141] The foster child continued to live with the third party and her family until the subject matters came to a head in late May 2006. On 6 June 2006, the foster child met for the first time with Dr Danielle Shumack, a psychologist from the Griffith Adolescent Forensic Assessment and Treatment Centre. This was clearly organised by Youth Justice as part of the special conditions of the probation order made on 24 February 2006.91 [142] It is not clear from the Youth Justice file why there was the delay between the date of sentencing and the date of consultation with her. There is nothing whatsoever contained in any of DOCS file notes to indicate DOCS arranged any counselling or reports which involved any direct contact with the foster child other than the report from Mr Ritchie in July the previous year. [143] The various case notes suggest that Mr Oates continued to maintain contact with the foster child throughout the period from December 2005 to May 2006. The first indication that DOCS was aware of anything to do with the subject complaints appears in a case note from Mr Bankes dated 29 May 2006.92 He noted that the 89 Part of Ex 2A.96. 90 Criminal history of foster child Ex 17. 91 Report from Dr Schumack dated 27 June 2006 Ex 3. 92 Case notes Bankes Ex 2O.35. -- 22 of 84 -- 23 third party contacted him and sounded quite distressed and informed him that her elder daughters (the first and second plaintiffs) had both disclosed to her that the foster child had been masturbating in front of them and making inappropriate sexual advances towards them. [144] The foster child had actually left her place by that stage and Mr Bankes organised temporary care through St John’s for the weekend and agreed there would need to be a further carer after that. [145] On 7 June 2006, Mr Bankes made a further case note where he said in part: (the foster child) attended sexual offender assessment sessions today and yesterday with Danielle Schumack from Griffith Sex Offender and Treatment Centre. According to Danielle these went ok and she will return in three weeks time on 28/6/2006 to commence treatment sessions with him. According to Danielle (the foster child) has no insight into the effects his actions have on harming others and could not articulate any strategies re – recognising and containing his urges. Danielle strongly recommended that (the foster child) not stay with families with other young children.93 [146] These comments about the lack of insight are quite disturbing, particularly, when Mr Ritchie noted in paragraph 31 of his report, approximately 11 months before, that he had no apparent boundary regarding the propriety of his actions at the time of the incident with the young child and how his beliefs concerning women, sex and male sexual entitlement played a part in his earlier offending. In paragraph 54 of that report, Mr Ritchie identified that exposure to sex education would probably assist him to conform to appropriate sexual rules of conduct and in paragraph 55 he said that appropriate intervention would lower his level of recidivism risk. [147] In evidence Mr Bankes agreed that the lack of insight referred to by Ms Schumack was the sort of matter that he would have expected to have been dealt with in the type of counselling that Mr Ritchie was recommending should be done as soon as possible back in June/July the previous year.94 [148] It would appear, however, that nothing was done in the interim to address these issues of boundaries and lack of insight even thought DOCS obviously agreed to the placement of the foster child with the third party and her family from 13 December 2005 onwards. Relative Carer Assessment Undertaken by Cherie Schaeffer dated 21 December 2005 [149] Once the department treated the application dated 8 December 2005, from the third party and her husband as one for relative carer it was necessary for the Chief Executive of the department pursuant to s 122 of the CPA to take all reasonable steps to ensure that the foster child was cared for in a way that met the statement of standards set out therein namely: a. the child’s dignity and rights will be respected at all times; b. the child’s need for physical care will be met, including adequate food, clothing and shelter; 93 Case notes Bankes Ex 20.39. 94 T7-69 L4-16. -- 23 of 84 -- 24 c. the child will receive emotional care that allows him or her to experience being cared about and valued and that contributes to the child’s positive self regard; d. the child’s needs relating to his or her culture and ethnic grouping will be met; e. the child’s material needs relating to his or her schooling, physical and mental stimulation, recreation and general living will be met; f. the child will receive education, training or employment opportunities relevant to the child’s age and ability; g. the child will receive positive guidance when necessary to help him or her to change inappropriate behaviour; h. the child will receive dental, medical and therapeutic services necessary to meet his or her needs; i. the child will be given the opportunity to participate in positive social and recreational activities appropriate to his or her developmental level and age; j. the child will be encouraged to maintain family and other significant personal relationships; k. if the child has a disability – the child will receive care and help appropriate to the child’s special needs. [150] Essentially, these matters relate to what are in the best interests of the child. It is interesting to look at the explanatory notes in the left hand column of the 22 page assessment form completed by Ms Schaeffer. Time and time again they refer back to those very standards set out in s 122 of the CPA. [151] Obviously, the emphasis on any questioning in this case of Ms Schaeffer related to the whole issue of any assessment of the risk to the four teenage girls in the household at the time and how such risks could be minimised. The document, as a whole, was clearly geared more towards what was in the best interests of the foster child. [152] Ms Schaeffer in her evidence mentioned, on a number of occasions, that she was not engaged to conduct a risk assessment, but to complete an assessment to assist in the approval or otherwise of what she perceived to be an application on behalf of the third party and her husband to be relative carers for the foster child. At one stage during cross-examination by counsel for the plaintiffs the following exchange appears: Thank you. Well, what was the main purpose of the document. I think you’ve told us that it was to establish that the suitability of the household for the foster child?---Normally foster care assessments are based on the standard of care and there is a list of different things that foster carers are expected to provide a child, such as physical environment, emotional stability and so forth, all the things around school, maintaining family contact, and so when you do a foster care assessment, you always try to establish that they can meet those standards of care, meeting the emotional care of the child, the physical care of the child, schooling, etcetera, etcetera. So the purpose – the main purpose of your assessment was from the point of view of the foster child’s welfare?---Yes. -- 24 of 84 -- 25 And would the foster child’s welfare include protecting him from risk of committing criminal offences?---That’s not what a foster care assessment would be about, no. So his – anything he did to the three girls in the family who lived there was not really of your concern?---It’s a concern because it’s a risk, because we had prior knowledge of his risk, but while he’s in the home under a foster carer and the assessment’s already been done, that then is a concern of the Department of Child Safety and the foster carers. So by the assessment, you’re talking about this assessment?---This assessment’s just established whether both of the foster carers have the capacity, the care and understanding to meet the needs of the child; that’s all it does. HIS HONOUR: To be approved as relative carers?---Yes. MR TROTTER: So that’s all you were interested in?---Can he meet the basic needs of the children? So that’s really all you were interested in?---And safety is one of them. And safety is one of those. With respect to the foster child, that’s what you’re saying?---Their ability to provide a safe environment – provide a safe – yes.95 [153] When cross-examined about what she knew of the earlier incident involving the three year old child she said: I don’t recall getting a lot of details. I do know that he sexually harmed another child in foster care placement. I don’t recall having the full history. I know it was pretty significant and, that, to me, is enough to say we need to put in some severe safety measures here.96 [154] She later went on to concede that she had been given information by Child Safety about what happened and agreed that did involve digital penetration of the three year old child.97 [155] She was then asked if she was concerned about that and she replied: I was concerned yes. Absolutely.98 [156] She went on to say: It’s my role to identify the concerns. Yes … my role is not to address the concerns.99 [157] She was later asked whether or not she had any concerns as to whether the third party seemed to fully appreciate the risk to her children and she replied: I did mention suggestively in the assessment about that and the need for further training and support around understanding that. I did feel she was being a – trying to rescue him and I didn’t feel that that was the most appropriate thing, but sometimes, we – we do approve foster carers knowing the fact they are willing to go through training and willing to be supported and helped to develop that knowledge. We don’t 95 T5-29 L4-37. 96 T5-34 L18-21. 97 T5-34 L30 – T5-35 L10. 98 T5-35 L12. 99 T5-35 L12-17. -- 25 of 84 -- 26 expect all foster carers to have all the knowledge straight away upon the assessment phase.100 [158] When questioned further about that foster carer training, she mentioned some set training from DOCS about understanding the act and about understanding complex behaviour. She mentioned that there was one type of training that was based on sexualised behaviours and children in care and that there are specific training modules that can be set up in place for foster carers in those circumstances.101 [159] She was questioned further about that training and asked whether she would have expected some follow up in regard to the potential risks from what she knew about the foster child’s earlier behaviour and she replied: Yeah, definitely. Quite intensive follow up is the process.102 [160] She then went on to say: Well, all that intensive training – training that – modules they need to go through. Its quite a lengthy process to be a foster carer, and you also have to go through approval, so everyone needs quite a lot of support to go through that and intensive because this young man is quite complex and a lot of risk and I made it clear that there was lots of need for monitoring and supervision of that.103 [161] She then went onto say she thought that she verbally passed the information of that need onto the manager, Ms Anderson.104 She was clearly mistaken in that regard because Ms Anderson was in charge of the Cairns North office and the assessment in this case was requested by the Cape/Torres office. She was later shown the document headed up ‘additional information’ completed by Ms Van Hooren on 2 February 2006, and she indicated that she had no recollection of any conversation in that regard.105 [162] She was questioned further about any warning signs associated with the increasingly defiant behaviour of the foster child after the earlier offending and again stressed what she understood her role to be when she said: Now – but, yes, again, this is about whether they had capacity and motivation to care for this young person, and they did. They wanted to help this young person. They were willing to maintain all the conditions, the safety, provide the best environment they could – possibly can, and they had the best intentions and the motivations. That was obvious. But I was not there to predict whether this person would re-offend. That was – the young person was not what I was there for. I was there to establish whether they had a capacity to provide a parenting, safe, caring environment for this young person, and that’s what … that’s what I did.106 [163] She was then asked whether she would have done things differently had she been asked to carry out a risk assessment and she replied: 100 T5-35 L27-36. 101 T5-35 L36-42. 102 T5-39 L36-37. 103 T5-39 L39-44. 104 T5-40 L1-15. 105 T5-47 L28-45. 106 T5-49 L37-47. -- 26 of 84 -- 27 Yes, absolutely, because then you are more focussed – I’ve done risk assessments before, and your more focussed specifically on the young person and you’d be looking more into their file and going into their history and talking to the young person and getting a lot more information, and that’s not what I was there for. I was not there for that.107 [164] I have read closely the pro forma document which was completed by Ms Schaeffer and all the references to risk in the left hand column clearly seem to relate to risk to the foster child not necessarily to other members of the household. [165] Under the heading “other household members” Ms Schaeffer did make the following observations in the column relative to risks when she said: it was obvious that the girls have also established a close relationship with (the foster child) and are supportive of him living in the home. They are well informed about (the foster child’s) situation. The (third party) has discussed with them about protective behaviours in the home (this is discussed further in the following section). It is established that the family is committed to having (the foster child) stay.108 [166] This merely touches on any potential risk to the three plaintiffs, but does not go into that in any detail. This is not surprising because the notes in the left hand column clearly seem to relate to any potential risk to the foster child himself coming from other members of the household. [167] These matters are touched on again in section 4d headed “other” which is defined as any other issues that may impact on the applicant’s ability to provide a safe and stable environment that is free from harm or risk of harm. Ms Schaeffer said: It is an important aspect of this assessment to assess whether the applicants have developed and implemented safety measures in the home to ensure that the applicants’ girls are not at risk at being harmed in any way taking into consideration the sexual nature of the legal charges placed on (the foster child). The applicants have spoken to the girls before (the foster child) came to stay and discussed with them what (the foster child) has been charged with and how they felt about it. The applicants talked to (the foster child) and have discussed what will be involved in the legal proceedings and how they are willing to support him. The conditional bail means that (the foster child) has certain conditions that impact on his lifestyle. The applicants have made it clear to him that they expect him to abide by the conditions. This means that (the foster child) has to let (the third party) know where he is going and when he will be back. [168] It is impossible to see what, if anything, was done for or on behalf of DOCS, to deal with the very concerns expressed by Ms Fielder in her notation on 13 January 2006, when she originally refused to approve the application. [169] She was concerned after receipt of the assessment that the third party and her husband were unable to acknowledge risk and was concerned as to what the plan was for protection of other children. 107 T5-50 L1-6. 108 Ex 2A.92 p 13. -- 27 of 84 -- 28 [170] There are no details of any plan in the assessment document, although Ms Schaeffer did refer to safety plan a number of times during the course of her evidence. Nowhere is any plan documented and the relevant passages of the assessment, which touch on the potential risk to the teenage girls in the household, appear to suggest that it was basically left up to the third party to deal with the teenage girls in relation to that risk. [171] Nothing in the additional information document provided by Ms Van Hooren took the matter any further in terms of the details of any such plan. [172] Nor it would seem there was anything done in terms of what Ms Fielder said about needing conditions, structure, support and monitoring in place when she did approve the application. If there were to be conditions, these needed to be spelt out in writing and, if structures were to be put in place it would have made sense for them to be written down. Nowhere is there any written confirmation of any support that was being provided nor any monitoring that was done nor was any referred to in evidence. [173] Certainly, from time to time, Mr Oates and Mr Bankes did have contact with the family, but there is no suggestion that that contact was in any way facilitated with a view to enforcing any such conditions or monitoring any structure or support. [174] Further, there is no reference to the appropriate support and monitoring in any documents following the relative carer approval on 2 February 2006. [175] One matter of concern was that the copy of the assessment report completed by Ms Schaeffer was not signed. It is not clear whatever happened to any documents that she may have signed but I note that even in 2007 Ms Gufstafson was unable to locate the original signed, copy. This merely means that we have nothing further to consider, other than the copy which was tendered by consent in these proceedings. [176] Whilst it is easy to be critical of Ms Schaeffer for the lack of information in relation to any safety plan based around the potential risk to the teenage girls in the household, it seems quite clear, as she said, that this was not the emphasis of her assessment and her assessment was aimed more at the suitability of the applicants as relative carers. It is understandable that she would not have had any concerns in that regard particularly because of their earlier background as carers. Charges Arising out of the Foster Child’s Behaviour Towards the Plaintiffs [177] For whatever reason there appears to have been a considerable delay in terms of the reporting of the subject incidents involving the plaintiffs and the foster child to the police. During the course of the trial there were allegations that the third party did not want the matters reported and there was also criticism of DOCS for not ensuring that the matters were reported earlier. It is not clear why there was such a delay. [178] Certainly DOCS became aware of the complaints on 29 May 2006.109 [179] Further, Mr Bankes did discuss the matter with Ms Shumack, from the Griffith Sex Offender Assessment and Treatment Centre, on 7 June 2006, when she told him that 109 Case notes Jonathon Bankes Ex 2O.35. -- 28 of 84 -- 29 the foster child had no insight into the effects his actions had on harming others and could not articulate any strategies re recognising and containing his urges.110 [180] By this stage, Ms Shumack had discussed with the foster child what had happened with the plaintiffs and her remarks as recorded by Mr Bankes clearly related at least in part to the offending involving the plaintiffs.111 [181] The Youth Justice Service file for the offending that was dealt with in February 2006, was placed before me, but I do not have a copy of the Youth Justice file in relation to the subsequent offending with the plaintiffs. [182] I have, however, had regard to his criminal history112 which confirms that on 28 October 2008, he was dealt with in the Childrens Court of Queensland for the following charges:  Criminal Code s 227(1)(b) Indecent act in any place with intent to assault or offend any person (three charges between 1/12/05-28/05/06)  Criminal Code s 352(1)(a) Sexual assault (between one 1/12/05-28/05/06).  Criminal Code s 335 Common assault (two charges between 30/11/05- 28/05/06).  Criminal Code s 227(1)(b) Indecent act in any place with the intent to insult or offend any person (three charges between 30/11/05-28/05/06)  Criminal Code s 352(1)(a) Sexual assaults (four charges between 30/11/05- 28/05/06)  Criminal Code s 210(1)(d) Indecent treatment of a child under 16 (exposed) (between 30/04/06-28/05/06). [183] On some of the counts, he was sentenced to detention for 408 days to be released from custody after serving 50% of that detention order. He had served 204 days prior to being sentenced and would, therefore, have been released from detention that day. [184] On the remaining charges, he was sentenced to two years probation with a special condition that he attend the Griffith Youth Forensic Service or other program as directed by the Chief Executive, Youth Justice Service. [185] All bar the last count were framed so as to cover the entire period from when he commenced residing with the third party’s family on 13 December 2005, until he left in late May 2006. [186] It would appear that all bar the last count related to the first plaintiff and the second plaintiff. They relate to multiple offences over a period of time. [187] Further, it would appear that the last count related to the third plaintiff because she was the only one of the three who was under 16 years of age at the time he was alleged to have offended. [188] Whilst it is not clear just when he was originally charged, he did spend 204 days in detention prior to being sentenced. Incidents Involving the First Plaintiff 110 Case notes Jonathon Bankes Ex 2O.39. 111 Report Shumack dated 27 June 2006 Ex 3. 112 Ex 17. -- 29 of 84 -- 30 [189] The first plaintiff gave direct evidence about what happened, as between the third party and her, and also adopted, as correct, a statement that she had provided to the police on 2 August 2007.113 [190] She said that the foster child came into her room on about twelve separate occasions and that the first occasion was about 1 month after he started living with them.114 [191] Her evidence was not as detailed as the information in the police statement, but was consistent with what was contained in that statement [192] Essentially, she described how the foster child, over a period of time, came into her room on these occasions and performed a number of acts which included: (a) Her waking up on one occasion with him beside her and him running his hand up her leg towards her groin and his being fairly persistent about that even though she told him to “get out of my room”; (b) An hour later he came back into the room and stood in front of her with his penis exposed and masturbated in front of her and said to her “suck my cock”; (c) About two weeks after the first incident he came in and did much the same thing as he had on the first occasion when he was touching her on the inner thigh. Again, she told him to “get out” but he remained, placed his hand on her stomach, ran it up towards her breasts and grabbed one of her breasts. Eventually she was able to get him to leave; (d) A further occasion when she woke up and saw him standing next to the bed with his pants down, his penis exposed and him masturbating and he again said “suck my cock”; (e) The following night he came into her room and again placed his hand on her inner thigh running it up towards her groin. On this occasion, he rolled on top of her, rubbing his groin against her groin area. Eventually, she was able to get him to leave. (f) A few nights later he came back again, even after she had attempted to lock her door, and she woke with him standing over her with his penis in his hand masturbating. (g) A further incident, which was not long after the previous incident, when he was in bed with his hand on her thigh running it up and down. She described how he left, but came back about half an hour later and how he placed his hand on her groin inside her pyjama shorts and underpants rubbing her in that area. (h) A further incident where she awoke to find him in bed with her. He was on top of the doona, but his pants where down around mid-thigh and he was lying there with his penis exposed. She actually left and slept on a couch in the lounge room. (i) After that he used to come into her room infrequently and often just stand there or sometimes he would masturbate. She estimated that there were about three times where he came and masturbated and about 3-4 times where he came in and looked at her. She described how when he did masturbate, his penis would be very close to her face.115 113 Ex 5. 114 T1-62 L10-15. 115 Ex 5. -- 30 of 84 -- 31 [193] In her Quantum Statement116 she described how the foster child was fourteen years of age at the time, but was much more like a man in that he was very strong and growing up rapidly at this time. She estimated that he then weighed about 80 kilograms and she weighed between 40-45 kilograms. The first plaintiff was 17 years of age when the offending commenced and 18 years of age when it ceased. Incidents Involving the Second Plaintiff [194] The second plaintiff gave direct evidence of the relevant incidents and also adopted as correct her statement to the police dated 26 February 2008.117 [195] She gave relatively brief evidence about what happened, but the allegations as contained in the police statement were quite detailed. [196] Essentially, she said as follows: (a) The first incident occurred in about March 2006, when she woke up in her bedroom and saw the foster child standing facing her. He was wearing a pair of boxer shorts, but no t-shirt and placed his hand down his boxer shorts and pulled out his penis and commenced masturbating. She said she was too scared to do anything, but she rolled over in the hope that he would go away. She described how he remained for about a further 5-10 minutes. (b) She described another incident a couple of nights later, when she woke to find him in her bedroom masturbating and how she rolled away from him and after some time he left again. (c) She described a further incident the following night or the night after that, when she again awoke to him masturbating in front of her and him looking down at her. On this occasion she rolled over and he walked out. After that she described how she started locking her door and there was a gap before he came back in again. (d) She described another night later, when she woke up to find him sitting on top of her chest with his penis out literally in her face and how he tried to place his penis in her mouth, thrusting his hips backwards and forwards, such that his penis was almost touching her lips. She described how she managed to push him hard and told him to get off and she tried to get out of the room, but how he blocked her from leaving the room via an internal door. She described how she was able to run out of another door into the carport and get out of the house that way. This was the last occasion that he came into her room.118 [197] In her evidence she said that the total number of times that he came in was about six or seven.119 [198] The second plaintiff would have been roughly sixteen and a half years of age during the period from March to May 2006. Incident Involving the Third Plaintiff [199] The third plaintiff gave relatively brief evidence of the incident involving her. There was no police statement tendered in her case. 116 Ex 4. 117 Ex 7. 118 Ex 7. 119 T3-6 L25-27. -- 31 of 84 -- 32 [200] She described an incident in May 2006, when she says she woke up and saw him right in front of her face, probably about six inches from her face, and he was moving his hips in and out and had his hands down his pants.120 [201] She described how his right arm was on the top bunk of the bed in her room and his left arm was in his pants and how she asked him what he was doing and told him to get the hell out and he moved slowly. She was afraid that he would turn and come back and do something physical to her and she said she knew that she would not be able to fight him. But he did slowly walk out the door. She described how she stayed up all night crying and watching the bottom of the crack of the door because the light was on and she could see if someone was walking past. She described herself as being scared.121 [202] In cross-examination she agreed that she was not touched by him and she agreed that he did not expose himself.122 [203] There were no further details provided of what happened, although it is clear that the foster child did plead guilty to an offence of indecent treatment of a child under the age of 16 years alleged to have occurred in the month of May 2006 which included an allegation of exposure.123 [204] The third plaintiff was just over 14 years of age as at May 2006, and was clearly the only one of the three plaintiffs under the age of 16. There is no suggestion that the foster child was charged in relation to any offending involving any other complainants at that time. The Case for the Plaintiffs [205] The plaintiffs allege that, at all material times, DOCS owed them a duty of care, namely: (a) To avoid injury to the Plaintiffs which was a reasonably foreseeable result of the exercise of its power of the Child Protection Act 1999 ("the Act”) to place the foster child into the care of (the third party and her husband); and/or (b) To exercise its power under the Act to direct the removal of the foster child, or alternatively, the removal of the Plaintiffs, from the custody of (the third party and her husband) when it knew of the reasonably foreseeable risk of injury to the Plaintiffs; and/or (c) To impose appropriate conditions on the custody of the foster child with (the third party and her husband); and/or (d) Before placing the foster child in their care to give to (the third party and her husband) the information that it had about the foster child that (the third party and her husband) reasonably needed to help them make an informed decision whether to agree to the placement or not; and/or (e) When placing the foster child in the care of (the third party and her husband), and while the foster child was in the care of the third party and her husband, to give (the third party and her husband) information it had relating to the foster 120 T3-74 L23-28. 121 T3-74 L30-38. 122 T3-75 L40-47. 123 Paragraph 182 hereof. -- 32 of 84 -- 33 child that (the third party and her husband) reasonably needed to ensure the safety of the foster child, the carer and the Plaintiffs.124 [206] In paragraph 16 of the Second Further Amended Statement of Claim dated 13 November 2013, the plaintiffs plead that DOCS knew or ought to have known that: (a) The foster child had a history of sexualised behaviours towards other children; (b) The foster child, had previously sexually assaulted female children, including the daughter of one of his foster carers; (c) The foster child, was being dealt with in the Children’s Court in cairns on charges of rape, indecent dealing and sexual assault; (d) Because of his sexualised behaviours, the foster child was likely to sexually assault, or attempt to sexually assault and behave in an indecent manner towards each of the Plaintiffs, if he were placed into foster care with the Plaintiffs’ parents; and (e) Placing the foster child with the Plaintiffs in the third party’s family home, exposed each of the Plaintiffs to an unnecessary and unreasonable risk of psychiatric/psychological injury, because of the foster child’s likely sexualised behaviours towards them. [207] These matters are then further particularised in paragraph 16. [208] In paragraph 17 it is alleged that, by reason of the facts and circumstances pleaded in paragraph 16, the risk of psychiatric/psychological injury to each of the plaintiffs was reasonably foreseeable to DOCS, its employees or agents or, alternatively should have been so. [209] The plaintiffs then plead in paragraph 18 of that same document, negligence and/or breach of duty and/or breach of statutory duty on the part of the defendant by DOCS, its employees or agents as follows: (a) The Plaintiffs repeat the particulars sub-joined to paragraph 16 above (b) An assessment undertaken by Helen Giles, an employee of the Defendant and the subject of a report dated 4 November 2012 (“the assessment”) by the defendant, had recommended that foster children with aggressive tendencies ought not be placed with the (third party and her husband). (c) (The third party) had said to Helen Giles at the assessment words to the effect: (i) She could cope with foster children who had suffered sexual abuse provided such children did not have sexualised behaviours, and (ii) That her daughter, the first Plaintiff was susceptible to suffering anxiety if subjected to confrontation so that (the third party) was not sure if the (first Plaintiff) would cope with a foster child who was aggressive. (d) The Defendant said no safety plan had been formulated or implemented by (the third party and her husband) to address the risk to the three Plaintiffs posed by the foster child being placed with (the third party and her husband) should he be so. (e) (i) failed to provide protection for the Plaintiffs pursuant to its duties under the Act; (ii) failed, pursuant to s83A(i)(a) of the Act to ‘give to the proposed carer the information that the Chief Executive has about the child that the proposed carer reasonable needs to help him or her to make an informed decision whether to agree to the placement’; 124 Particulars of duty of care alleged in Ex 22. -- 33 of 84 -- 34 (iii) failed, pursuant to its duties under s83A(ii) ‘when placing the child in care, and while the child is in care, the Chief Executive must give the carer information that the Chief Executive has relating to the child that the carer reasonable needs’- (a) to provide care for the child under this Act; (b) to ensure the safety of the child, the carer and other members of the carer’s household. (f) No details of any safety plan were obtained by the Defendant nor were any structures put in place of the sort referred to by S Fielder (g) Further, S Fielder reasonably and properly held and expressed the opinion as at 13 January 2006 that (the third party) did not properly acknowledge the risk posed by the foster child to the three Plaintiffs because of his sexualised behaviour and it was for that reason not safe to place the foster child in her care in (the third party’s) family home. (h) No or no sufficient action was taken by the Defendant to ensure that (the third party) understood and fully acknowledged the risk the foster child would pose to the Plaintiffs and her sister should the foster child be fostered with her. (i) i) Notwithstanding the above the Defendant approved the foster child being fostered into the foster care of (the third party and her husband) at their family home. (j) j) As at January to July 2006, any placement of the foster child in any home with female children would have placed such female children at an unacceptable risk of harm in the nature of sexual molestation, sexual assault, or indecent behaviour at the hands of the foster child. (k) k) in the alternative, in the said period, any placement of the foster child in any home with female children would have placed such female children at an unacceptable risk of harm in the nature of sexual molestation, sexual assault, or indecent behaviour at the hands of the foster child unless proper safeguards in the form of a safety plan, professional monitoring of the implementation of the plan and the foster child’s behaviour, and professional support for the foster carer were all in place and implemented. (l) l) in the premises the Defendant: a. Failed to have any or any sufficient regard for the health and safety of each of the Plaintiffs in all circumstances. b. Placed the foster child into (the third party’s) family home when it was inappropriate and unsafe to do so. c. Failed to adequately assess the risk of injury to each of the Plaintiffs associated with placing the foster child in (the third party’s) family home. d. Unreasonably exposed each of the Plaintiffs to the risk of psychiatric/psychological injury. [210] In submissions, counsel for the plaintiffs went further in terms of any potential risk and argued that not only should DOCS, through its servants or agents, have known of the potential risk of psychological/psychiatric injury, but there was specific knowledge of such risk by various employees of DOCS at the relevant time. [211] I have already summarised what some of those employees have said and I will deal with this matter later. The Case for the Defendant -- 34 of 84 -- 35 [212] The defendant denies that it ever owed the plaintiffs a statutory duty pursuant to the CPA which gave rise to a right to bring an action for damages for breach of such duty.125 This pleading was expanded upon in argument and I will deal with the issue of duty of care later. [213] Relevant to the issue of duty of care, the defendant also pleads that the powers under the CPA did not allow the defendant to control foster children generally by use of force, detention in secure environments or deprivation of the child’s liberty either at large or in an institutionalised environment.126 [214] The defendant also pleaded that the foster child was effectively self placing with the third party and her family and that this was done with the condonation of the third party.127 [215] The defendant also pleaded that, if the first plaintiff sustained any psychiatric and/or psychological condition, such condition was not caused by any incidents involving the foster child, but related to other matters that she had experienced within her upbringing and her family dynamics.128 [216] The defendant makes a similar pleading in relation to the second plaintiff, although the factors alleged to be causative of any such condition were essentially different from those pleaded in relation to the first plaintiff.129 [217] A similar pleading was made in relation to the third plaintiff alleging that any such injury was transitory and rendered irrelevant by outside stressors. [218] The defendant admitted that DOCS was effectively of the belief that the foster child had been charged with one count of rape and one count of indecent dealing with a child under 12 years and that that related to the three year old daughter of a foster carer, but pleads that the foster child had the benefit of the presumption of innocence in relation to those matters.130 [219] The defendant also pleaded that DOCS was of the belief that the foster child was not likely to sexually assault or to attempt to sexually assault or behave in an indecent manner towards any of the plaintiffs if he were placed into foster care with the third party and her family because of the medical opinion available to the defendant at the time, and, alternatively because the child was self placing with the third party and her family and because any duty owed to the plaintiffs would have been discharged by the assessment undertaken by Ms Schaeffer on 21 December 2005.131 [220] The reference to “medical opinion” could only relate to the report of Mr Ritchie because there is no reference to any other relevant medical opinion in the files, nor was any reference made to any such opinion by those who gave evidence in these proceedings. 125 Paragraphs 16 & 20 of the Second Further Amended Defence dated 6 January 2013. 126 Paragraphs 2, 4, 9(a)( IX), 15, 22, 24 & 25 of the second Further Amended Defence. 127 Paragraphs 9A, 12, 13, 14, 15 & 16A of the second Further Amended Defence. 128 Second Further Amended Defence paragraph 6. 129 Second Further Amended Defence paragraph 7. 130 Paragraphs 10 & 11 of the second Further Amended Defence. 131 Paragraphs 12, 13, 16, 20, 21, 23, 24 & 25€ of the second Further Amended Defence. -- 35 of 84 -- 36 [221] The defendant also pleaded that DOCS believed that safety measures were implemented by the third party and her husband to ensure all teenage girls living in the family home were aware of the alleged actions of the foster child with respect to the three year old daughter of a foster carer and that proper safety measures had been implemented for those girls by the third party and her husband.132 [222] The defendant also pleaded that it did have sufficient regard to the health and safety of the plaintiffs in all of the circumstances, that it was not inappropriate or unsafe to place the foster child with the third party and her family and that it had adequately assessed any risk to the plaintiffs before placing the foster child with the third party and her family.133 [223] Further the defendant pleaded contributory negligence on the part of the first plaintiff and on the part of the second plaintiff with the particulars alleged in both cases being the same, namely: (a) Failing to lock her bedroom door, (b) Failing to inform the third party of the acts of the foster child as pleaded, and (c) Failing to tell the third party that the foster child was entering her bedroom at night.134 The Defendant’s Case Against the Third Party The defendant’s case as against the third party is essentially pleaded in paragraphs 32-39 of the Further Amended Statement of Claim by defendant against third party dated 11 September 2013, which provides: 32. The Defendant has defended the proceedings of the Plaintiffs on the grounds appearing in the Defendant’s Further Amended Defence filed in these proceedings. To be clear the Defendant pleads the paragraphs from paragraph 3 to 31 hereof on the same basis as is admitted, defended and not admitted in the Plaintiff’s Further Amended Statement of Claim and the Defendants Amended Defence and the pleadings herein are not to be taken as any admission of those factual matters other than consistently with the Defendant’s pleadings in the principal action. 33. At all material times the Third Party: 33.1. Was the mother and person in control of the premises in which the Plaintiffs resided. 33.2. Had the power to decide who resided in the premises with the Plaintiffs. 33.3. Knew the facts alleged in the Statement of Claim and set out at paragraph 28 hereof. 33.3A. Changed the family situation from a normal common place domestic family situation with parents and children to an abnormal domestic family situation wherein a foster child with significant issues known to the Third Party was allowed to reside with the Third Party’s consent and encouragement at the home occupied by the Third Party, her partner and the Plaintiffs. 132 Paragraph 15 of second Further Amended Defence. 133 Paragraph 25 of the second Further Amended Defence. 134 Paragraphs 28 & 29 of the second Further Amended Defence. -- 36 of 84 -- 37 33.5. Had received the foster child into the family home between 5 September 2003 and 20 October 2003; between 14 September 2005 and 24 September 2005 and from 13 December 2005 to 26 May 2006; 33.6. Throughout 2005 permitted and encouraged the foster child to self place at her premises; 33.7. Throughout 2005 gave the foster child gifts including a mobile phone, lollies, money, new clothes and a bicycle; 33.8. Knew that during the foster child’s placement at St Lukes he would abscond and go to the Third Party’s house where despite being spoken to by the Defendant’s employees or agents about discouraging his attendance she continued to let him stay and did not actively discourage him; 33.9. Knew that the foster child was placed with a carer in Edmonton on 25 September 2005 but absconded from that placement and was located at her premises on 26 September 2005; 33.10. Knew that the Queensland Police Service made an application on 29 September 2005 to vary the foster child’s bail conditions to ensure that the foster child did not enter within 25 metres of the Third Party’s premises; 33.11. Knew because of his ongoing placement breakdowns on 17 November 2005 the foster child was placed at the Innisfail Youth Shelter; 33.12. Despite that knowledge of the bail conditions in paragraph 33.10 the Third Party continued to allow and encourage the foster child to attend at her premises; 33.13. Knew that on 24 or 25 November 2005 the foster child stole a car from the Innisfail Youth Shelter and drove to the Third Party’s premises; 33.14. Knew that on 25 November 2005 the foster child was remanded in custody and sent to the Cleveland Youth Detention Centre for breach of bail conditions; 33.15. Knew that on 13 December 2005 the foster child was released from the Youth Detention Centre and was collected by the Third Party and the First Plaintiff and driven back to Cairns; 33.16. On or about 10 June 2005 was making enquiries of Amanda McCallum with respect to her role in the foster child’s life and how she could support him; 33.17. On or about 9 September 2005 had requested a meeting to address the appropriateness of contact between (the third party’s) family and the foster child without putting other children in their care at risk; 33.18. On or about 12 September 2005 rang the Defendant to suggest herself as an alternative placement for the foster child; 33.19. On or about 14 September 2005 took the foster child to Ingham with her; 33.20. On or about 14 September 2005 had the foster child serve as a barman at a birthday party at her premises; 33.21. On 28 September 2005 knew the foster child had used the Defendant’s taxi voucher to get to her premises; -- 37 of 84 -- 38 33.22. On or about 3 October 2005 attended upon Amanda McCallum to advise that she had made a decision that she wanted to care for the foster child and that she was prepared to give up the other children in her care to facilitate that move; 33.23. On or about 17 October 2005 attended upon the Defendant’s Patricia Andersen with respect to her decision to cease caring for other children and to facilitate her fostering of the foster child and was at that time allowing the foster child to attend at her premises every day after school; 33.24. Knew that the decision in paragraph 33.22 above would involve resigning from Cairns Shared Family Care and arrangements needed to be made for grief counselling for the children she was handing over, some of whom she had fostered from infant to primary school age; 33.25. Knew that time would need to be taken to arranged placements for the children who were in her care; 33.26. Knew that a Department relative carer assessment was carried out by Cherie Schaeffer on 21 December 2005; 33.27. Knew that as a result of that assessment by Cherie Schaeffer the concerns the Department had with respect to the risk of the foster child’s behaviour, the matters that the foster child was charged with and the need for safety measures to be implemented at her premises to reduce any risk posed by the foster child. 34. In the premises the Third Party so altered the family dynamic so as to place herself in a position whereby she owed a duty of care to the Plaintiffs to ensure that through her actions in encouraging and/or allowing the foster child to remain at the premises and agitating and securing his placement there through the Defendant she took reasonable care to ensure that the Plaintiffs were not exposed to any foreseeable risk of injury that the foster child might present. 35. On or before May 2006 the Third Party told the Plaintiffs that if he (the foster child) goes I go; 36. Upon being informed of the matters alleged in paragraphs 10, 12 and 14 of the Amended Statement of the Claim the Third Party told the Plaintiffs they were not to tell anyone of the incident because the foster child would go to jail and he would be molested in jail; 37. Any requests by the Plaintiffs for the foster child to leave were met with screaming and abuse from the Third Party. 38. In the event that the Plaintiffs have suffered loss and damage as a result of the events described by the Plaintiffs in their Statement of Claim (which is denied) the negligence causing the events was that of the Third Party particulars of which are as follows:- (a) allowing the foster child onto the premises when knowing the matters set out in paragraphs 28 and 33 hereof; (b) failing to ensure that the bedrooms of the Plaintiffs were unable to be accessed by the foster child; (c) failing to advise and consult the Plaintiffs with respect to the actions of the foster child; -- 38 of 84 -- 39 (d) failing to observe the actions of the foster child which posed a foreseeable risk to the Plaintiffs; (e) failing to supervise the foster child in a manner which prevented him from having access to the Plaintiffs in circumstances where such access posed a foreseeable risk, for example, at night and when they were alone; (f) failing to ensure that the premises were appropriately equipped with lockable doors to the bedrooms so as to prevent unwanted access by the foster child to the Plaintiffs. (g) causing or permitting or encouraging the foster child to self place at the premises over and above the interests of the Plaintiffs. 39. The Defendant is entitled to indemnity or contribution from the Third Party in such as manner as a Court considers just and equitable having regard to the conduct of the Third Party in causing or contributing the loss and damage of the Plaintiffs pursuant to section 6(c) of the Law Reform Act 1995. The Third Party’s Case [224] In the Further Amended Defence of the Third Party to the Statement of Claim by the Defendant dated 22 November 2013, the third party puts into issue a number of factual matters alleged by the defendant. [225] The essential pleading is contained in paragraph 8 of that document which provides: 8. The Third Party denies the allegations contained in paragraph 34 of the Statement of Claim and says that: (a) The Third Party did not owe the Plaintiffs a tortious duty of care as alleged or at all as no such duty is imposed at law. (b) Alternatively, if the Third Party did potentially owe to the Plaintiffs a common law duty of care: (i) The duty could only have arisen after the provision by the chief executive (for and on behalf of the Defendant) to the Third Party of such information about the foster child and his proposed placement with the Third Party, as the Third Party would reasonably need to equip her and her husband and the Plaintiffs to make an informed decision about the potential safety of each of the member of the Third Party’s household should the placement proceed; (ii) The duty did not arise in the events that happened because the chief executive at no material time provided the Third Party with such information about the foster child, and his proposed placement with the Third Party, as the Third Party would reasonably need to equip her and her husband and the Plaintiffs to make an informed decision about the potential safety of each of the members of the Third Party’s household (including each of the Plaintiffs) in the event that the placement proceeded; (iii) The Defendant, by its Department of Child Safety, knew, but did not disclose to the Third Party or to any members of her family: -- 39 of 84 -- 40 A. That a Forensic Psychologist, a Mr Ian Ritchie, had assessed the foster child, and had expressed the opinion that: 1. The foster child’s explanation of his conduct and his level of understanding was not sufficient to ensure that there would be no relapse of offending behaviour. 2. The foster child had a low but not negligible risk of committing further sex offences and that he required treatment to address his risk of recidivism. B. That, despite Mr Ritchie’s recommendation, the foster child had not yet received any treatment to address his risk of recidivism. C. That the foster child had made known to Mr Ritchie that he, the foster child, was sexually active, inasmuch as he had: 1. engaged in sexual intercourse with a girl on at least two occasions: 2. commenced masturbation; 3. viewed pornography with other youths. D. That a reporting officer from the facility known as St Lukes had reported that while the foster child was placed at St Lukes between June and September, 2005, he, the foster child, had: 1. Engaged in what was described by the reporting officer as ‘highly sexualised’ behaviour; 2. Which included inappropriate discussion with staff; 3. And the inappropriate touching of a female worker at the facility. (c) Had the Defendant, by its Department of Child Safety, disclosed to the Third Party any one or more of the facts, opinions and admissions described in the last preceding sub-paragraph of this amended pleading, the Third party would not have agreed to the proposed placement of the foster child with the Third Party and her family. The Law [226] I gained considerable assistance from the analysis of the relevant authorities in Australia and England by Redlich J in S B v State of NSW.135 [227] It is convenient to set out the passages relied upon by counsel for the plaintiff in his submissions because they neatly summarise the issues in matters such as this. Page 31 para [96] to p 35 para [109]: STATUTORY POWERS AND THE DUTY OF CARE The Defendant submits that the Plaintiff’s claim is a novel one and that the Department owed the Plaintiff a duty of care in exercising, or failing to exercise, any 135 [2004] VSC 514. -- 40 of 84 -- 41 of the statutory powers available to it. It is convenient to first consider the present state of the law relating to the exercise of statutory powers and the duty of care. An action for the negligent exercise of a statutory power concerns a well-established category of duty of care. Those conferred with statutory powers have a duty to exercise those powers with reasonable care to avoid injury that is likely to be caused by their exercise.136 Accordingly, trials concerning the negligent exercise of statutory powers tend to focus on breach, causation and remoteness.137 In contrast, there is no established duty of care uniformly requiring an authority or its delegate to exercise its statutory powers such that a failure to do so will constitute a breach of such a duty. Rather, there must be a judicial evaluation of the specific factors in each individual case and “on the limiting or controlling devices” which bear upon whether there is a duty.138 The “factors approach” adopted in Stevens v Brodribb Sawmilling Co Pty Ltd139 calls for consideration of the language of the relevant legislation and its compatibility with the common law duty of care. This is then followed by other factors such as control, vulnerability, knowledge, reliance, generality or particularity of class of plaintiffs and demands upon the public authority.140 Since the rejection of proximity141 and the three staged approach developed in Caparo Industries plc v Dickman,142 the High Court has determined the existence of a duty of care by reference to the “salient features” of a case143 many of which were identified by Callinan J in Graham Barclay Oysters Pty Ltd v Ryan.144 Fault continues to play a role in ascertaining whether or not a duty of care exists. Duty, breach and consequential damages are interconnected.145 Any evaluation of the accountability under the law of negligence of those conferred with statutory powers must commence with the construction of the relevant legislation.146 The most recent pronouncements of the House of Lords in Phelps v London Borough of Hillingdon147 and the High Court in Sullivan v Moody148 indicate 136 Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202, Dixon CJ, McTiernan, Kitto and Taylor JJ at 202; Sutherland Shire Council v Heyman (1985) 157 CLR 424, per Mason J at 458; Pyrenees Shire Council v Day (1998) 192 CLR 330, per Gummow J at 391 [177]; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1, per McHugh J at 29 [62]; Great Central Railway v Hewlett [1916] 2 ACT 522, per Lord Parker at 519. 137 Crimmins (n. 37) per McHugh J at 20 [63]. 138 Sullivan v Moody: Thompson v Connon (2001) 207 CLR 562 at 580 [50]; Hayne, Honourable Justice Kenneth (2004), ‘Restricting Litigiousness’, 78(6) ALJ 381 at 385; Stapleton, Professor J (1998), ‘Duty of Care Factors: A Selection from the Judicial Menu’, at 62, in Cane, P and Stapleton J (eds.), The law of obligations: essays in celebration of John Fleming”, Oxford, Clarendon Press. 139 (1986) 160 CLR 16. 140 Amirthalingam, K (2003), ‘Negligence in Public Authorities: A Pearl in the Oyster or Another Greek Tragedy?’, 11(3) Torts LJ 197-207. 141 Hill v Van Erp (1997) 188 CLR 159; Perre v Apand (1999) 198 CLR 180 142 1990] 2 AC 605; Sullivan v Moody (n. 39) 143 Perre v Apand (n. 42); Stapleton, J. (n. 39) at 59. 144 (2002) 211 CLR 540 at 664 [321]. 145 John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 at 241-242, Sutherland Shire Council (n. 37) at 487. 146 Graham Barclay Oysters (n. 45) per Gummow and Hayne JJ (with whom Gaudron and Kirby JJ agreed) at 597 [149] and McHugh J at 574 [78]; X (Minors) v Bedfordshire C.C. [1995] 2 AC 633 per Lord Browne-Wilkinson at 731-732; [1995] 3 All ER 353. 147 [2000] UKHL 47; [2001] 2 AC 619; [2000] 4 All ER 504; [2000] 3 WLR 776. 148 (n. 39). -- 41 of 84 -- 42 a greater emphasis upon an analysis of the relevant legislation. A close examination of the “terms, scope and purpose of the relevant statutory regime” is called for to determine and frame the existence of a common law duty owed by statutory authority.149 The exclusion of a duty of care has sometimes been implied from the intent and purpose of the legislative scheme150 referred to as the “presumed legislative intent”. Thus, if the existence of a duty of care would “cut across” the objects of the statute by, for example, discouraging the performance by the relevant authority of its statutory duties, then such a duty of care is excluded.151 Even where mandamus will lie to vindicate a public duty to properly consider whether a power should be exercised it does not follow that the authority will owe a duty in relation to the exercise of the power.152 It is always open for the legislature to totally preclude the imposition of a common law duty of care, but if it does not, the statute will necessarily confer immunity from civil suit only to the extent that any harmful consequences of the acts authorised by the legislation cannot be avoided by the use of reasonable skill and care.153 An examination of the terms scope and purpose of the statutory regime is called for to ascertain whether it “erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence”.154 Community values It has been recently suggested in academic writings that the duty arises when all of the circumstances would make it “reasonable according to community standards” and that an example of this is to be found in the duty imposed on authorities to which powers are given for the protection of children.155 Spigelman CJ in Harriton v Stephens: Waller v James: Waller v Hoolahan spoke of the duty in the law of negligence as reflecting “values held in the community”. 156 The relationship between the Plaintiff and the Department generates a special responsibility by the Department to see that care is taken. In Kondis v State Transport Authority157 Mason J, after referring to illustrations such as a hospital’s duty of care to its patients, a school authority’s special responsibilities in relation to the children it accepts into its care and other examples, went on to observe: “…..In these situations a special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a 149 Graham Barclay Oysters (n. 45) per Gummow and Hayne JJ at 596 [146]. 150 Sutherland Shire Council (n. 37) per Deane J at 500. 151 Sullivan v Moody (n. 39) at 582 [60]; X (Minors) v Bedfordshire C.C. (n. 47) per Lord Browne-Wilkinson at 739 and 750. 152 Sutherland Shire Council (n. 37) per Mason J at 465; Graham Barclay Oysters (n. 45) per Gleeson CJ at 555 [9] and 563 [35] and per McHugh J at 575 [79]. 153 Benning v Wong (1969) 122 CLR 249 per Barwick CJ at 256; Sutherland Shire Council (n. 37) per Brennan J at 484. 154 Graham Barclay Oysters (n. 45) per Gummow and Hayne JJ at 596-597 [146]. 155 Derrington, The Hon. D. (Adjunct Professor) (2004), ‘Theory of negligence advanced in the High Court of Australia’, 78(9) ALJ 595 at 607 156 (2004) 59 NSWLR 694 at 700 [20]; [2004] NSWCA 93. 157 (1984) 154 CLR 672 -- 42 of 84 -- 43 particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised…..”158 The statute As Gleeson CJ stated in Brodie v Singleton Shire Council,159 legislation and the common law exist in a symbiotic relationship. The need to preserve the coherence of a statutory scheme and those other legal principles discussed in Hill v Van Erp160 and Sullivan v Moody161 raise questions as to the compatibility and interaction of the law of tort and the statute. Under the Child Welfare Act 1939, (hereafter the Act) the Minister became the guardian of every child or young person who was made a ward. The Minister’s guardianship was to the exclusion of the natural parents and continued until the child or young person ceased to be a ward. (s.9(1)). By virtue of sections 9 and 10 of the Act the Minister was invested with all of the powers and authorities of a common law guardian and was entitled to do such acts as were within the capacity of a common law guardian.162 In 1971 the Act was amended (Act No. 60 of 1970) to provide that the guardianship of the Minister was terminated in respect of a ward who attained the age of eighteen years. The Act was repealed on 29 May 1987 by the Children (Care and Protection) Act 1987. The Minister had responsibility for the care of a ward except when such ward was an inmate of an institution, was boarded out or was placed with foster parents. (s.10). The Minister was given authority to place or board out any ward, to arrange the terms and conditions of custody of any ward and to direct the removal or transfer of any ward. (s.23(1)(d), (e), (f) and (g)). Under the Act “boarded out” meant that a child was placed in the care of a foster parent for the purpose of being maintained in such person’s home. A review of the Act undertaken by O’Keefe J in Walter v State of New South Wales163 reveals that most powers which could be exercised and decisions that were made in relation to wards were performed or exercised by a delagee. (s.23(3)). The present scheme like that considered in Sullivan v Moody was a scheme for the protection of children which required the Department to treat the interests of the children as paramount.164 Guardianship under the Act Guardianship is a relationship which, so long as it subsists, is recognised as conferring rights in the guardian in respect of the custody and upbringing of a child.165 The rights of a guardian may be exercised by him or her having actual physical custody or they may be exercised by such custody being placed with others. Whether the placement be casual, temporary or of a more extended nature, the legal authority of the guardian over the child remains. Such authority subsists until displaced by a court order or the operation of a statute. (b) Page 40 para [132] to p 48 para [155]: 158 Kondis (n.58) at 687. 159 (2001) 206 CLR 512 at [31]. 160 (n. 42) at 231. 161 (n. 39) at 579-580 [50]. 162 Quinn v Minister for Youth and Community Services (1986) 5 NSWLR 716; (1986) 11 Fam LR 28 163 (n. 22) at [57]. 164 (n. 39) at 562 (Headnote). 165 Youngman v Lawson [1981] 1 NSWLR 439 per Street CJ at 445. -- 43 of 84 -- 44 EXERCISE OF STATUTORY POWER Did the Department owe the Plaintiff a duty of care to avoid injury which was reasonably foreseeable as a consequence of its decision to restore the Plaintiff to the care of her father? It is well settled that a public authority may be subject to a common law duty of care when it exercises a statutory power. It must be exercised with reasonable care. Damages for negligence may be recovered if reasonable precaution could have prevented injury which has been occasioned and was likely to be occasioned by the exercise of that statutory power.166 In the absence of any express or presumed statutory limitation, the ordinary principles regarding the existence of a duty of care (reasonable foreseeability of harm and proximity) will apply to those exercising statutory powers such that, except in cases of purely economic loss, the principal issues at trial will be whether the Defendant breached its duty of care to the Plaintiff, and whether that breach caused injury or loss which is not too remote. It will not be sufficient for the purposes of imposing a duty of care to show that harm of the kind suffered by a Plaintiff was reasonably foreseeable, although such foreseeability is a necessary condition.167 It is not disputed that the Plaintiff was a ward of the Defendant at the time she was restored to the custody of her father. The Defendant was empowered by s.23(1)(h) of the Act to restore her. The Plaintiff submits that the Defendant was under a duty of care to exercise the power with reasonable care168 and that liability for the negligent restoration of the Plaintiff to her father by the Defendant would not “cut across” the legislative intent of the Act. WHERE THE AUTHORITY BY SOME CONDUCT HAS INCREASED THE RISK OF INJURY A duty of care will be imposed where an authority having created or increased the risk of foreseeable damage, then fails to exercise its statutory powers to prevent the damage. Where the authority has used powers in a field of activity and has thereby increased the risk of harm, a duty of care will ordinarily be attracted.169 In Sutherland Shire Council170 the members of the High Court, despite differing views on the methodology of discerning the liability of a repository of statutory power for failing to exercise its powers, agreed, in Brennan J’s words, that: “ … where the repository of statutory power does something which creates or increases the risk of foreseeable damage and that damage occurs … he is negligent.”171 Mason J in his judgment remarked: “……But an authority may by its conduct place itself in such a position that it attracts a duty of care which calls for exercise of the power. A common illustration 166 Caledonian Collieries Ltd v Speirs (n. 37) at 219-200 and Sutherland Shire Council (n. 37) per Mason J at 458. 167 Graham Barclay Oysters (n. 45) per Gleeson CJ at 555 [9]; per McHugh J at 578 [36] and per Kirby J at 624 [234]; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 268 [35]; Sullivan v Moody (n. 39) at 572-573 [25]; at 576 [42] and at 583 [64]. 168 Plaintiff’s Outline of Submissions at 15-23. 169 Graham Barclay Oysters (n. 45) per McHugh J at 576 [81] and the cases referred to therein; Crimmins (n. 37) per McHugh J at [63]. 170 (n. 37) at 424. 171 Ibid at 479. -- 44 of 84 -- 45 is provided by the cases in which an authority in the exercise of its functions has created a danger, thereby subjecting itself to a duty of care for the safety of others which must be discharged by an exercise of its statutory powers or by giving a warning……….”172 These passages from Sutherland Shire Council were the subject of a number of references in Pyrenees and Crimmins173 and Graham Barclay Oysters.174 I gratefully adopt the summary of the High Court’s reasons in Pyrenees set out in the recent decision of Amaca Pty Ltd v State of New South Wales:175 “In summary, the first strand of the reasoning in Pyrenees emphasises the sole and actual knowledge of the Council of the risk of serious harm to identifiable individuals, the power of the Council to intervene, and the prior (but inadequate) intervention by the Council to eliminate the risk……… The second strand of the reasoning in Pyrenees based the recognition of a duty of care on the part of the Council on a significant and special measure of control, a degree of seriousness of the risk, and a vulnerability of the owners and occupiers of the premises.”176 In Pyrenees Gummow J was to state: “The general rule is that ‘when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could, by reasonable precaution, have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered.’ Caledonian Collieries Ltd v Spiers (1957) 97 CLR 202, 220. A public authority which enters upon the exercise of statutory powers with respect to a particular subject matter may place itself in a relationship to others which imports a common law duty to take care which is to be discharged by the continuation or additional exercise of those powers. Sutherliand Shire Council v Heyman (1985) 157 CLR 424 at 459-460 An absence of further exercise of the interconnected statutory powers may be difficult to separate from the exercise which has already occurred and that exercise may then be said to have been performed negligently.”177 (emphasis mine) This position has not been affected by the rejection by Brennan CJ, Gummow and Kirby JJ in Pyrenees of Mason J’s notion of “general reliance” as a touchstone of the existence of a duty of care. It was submitted for the Plaintiff that the Department owed a duty of care to affirmatively exercise its powers under the Act, in particular the power conferred by s.23(1)(d), to terminate the restoration. The Department had created the risk of harm to the Plaintiff by restoring her to her father’s custody. The Plaintiff submitted that the Department by its positive act had placed itself in a position to attract a duty to act.178 By so acting, it had a continuing duty to care for the Plaintiff which required the further exercise of those powers vested in the Department by virtue of the Act. 172 Ibid at 460. 173 (n. 37). 174 (n. 45). 175 [2004] NSWCA 124. 176 Ibid at [31] and [38]. 177 (n. 37) at [177]. 178 Sutherland Shire Council (n. 37). -- 45 of 84 -- 46 FAILURE TO EXERCISE STATUTORY POWER Following the Plaintiff’s restoration to the care of her father did the Department owe the Plaintiff a duty of care to avoid injury which was reasonably foreseeable as a consequence of the Department’s failure to remove the Plaintiff from her father’s care or to impose conditions on her father’s custody? In the Plaintiff’s final written submission it was said that her injuries were caused by the Department’s failure to exercise one or more of its powers under s.23 or s.76 to avert the foreseeable harm over which it had a significant measure of control. The common law has always recognised a distinction between damage caused by a positive act and damage which ensues as a consequence of a failure to act. An assertion that a statutory authority is liable in negligence for omissions will generally give rise to issues of justiciability.179 The existence of the power does not create the common law duty but in certain circumstances the failure to exercise the power may result in a breach of that duty independent of the statute.180 The care and diligence needed to discharge the duty will vary according to the circumstances known. The discharge of the duty may require the authority to exercise the power.181 The existence of a discretion to exercise a statutory power is not necessarily inconsistent with the duty to exercise it.182 In Graham Barclay Oysters, McHugh J observed that: “A public body invested with a discretionary statutory power may be in breach of a common law duty of care if it fails to exercise the power for the benefit of an individual or class of individuals. In these cases, failure to exercise the power given constitutes actionable negligence that sounds in damages…...” 183 Professor Todd has identified as a specific concern founding the cases, that “a duty to take care should not interfere inappropriately with the autonomy of the Defendant in deciding whether to act.”184 This concern specifically arises where it is alleged that a public authority has failed to act.185 Gummow and Kirby JJ in Tame v New South Wales186 referred to the control mechanisms discussed in Pyrenees187 which have been introduced by the courts to keep liability of public authorities in negligence within practical bounds.188 In Crimmins189 differing views were expressed as to the basis upon which a common law duty may be imposed upon a statutory body in relation to the exercise of its statutory powers. The asserted duty was not inconsistent with the purpose of the 179 Graham Barclay Oysters (n. 45) per Gleeson CJ at 553 [5] and per McHugh J at 576 [81].; Modbury Triangle Shopping Centre (n. 79); Agar v Hyde (2000) 201 CLR 552. 180 Graham Barclay Oysters (n. 45) per Gleeson CJ at 579 [80]. 181 Graham Barclay Oysters (n. 45) per Gleeson CJ at 575 [80]; Brodie v Singleton Shire Council (2001) (n. 60) per Gaudron, McHugh and Gummow JJ at 559. 182 Pyrenees Shire Council ( n. 37) per Brennan CJ at [22]. 183 (n. 45) at 574 [78]. 184 Todd, Professor S., University of Canterbury (New Zealand) – Paper delivered at the Centenary Conference of the High Court entitled ‘A Methodology of Duty’ 185 Brodie v Singleton Shire Council (n. 60). 186 (2002) 211 CLR 317. 187 (n. 37) at 376-7 [125] and at 391-5 [174]-[184]. See also Perrett v Williams [2003] NSWSC 381 per Wood CJ [433]-[481]. 188 Tame (n. 98) at 380 [186]. 189 (n. 37). -- 46 of 84 -- 47 statutory scheme. The other considerations that led the House of Lords in X (Minors) v Bedfordshire C.C.190 to deny liability were not present. The Chief Justice, McHugh and Gaudron JJ adopted an incremental approach concluding that a duty did exist. Justices Gummow, Kirby and Hayne focussed upon the terms of the statute, whether the scope of the operation of the statute was incompatible with the asserted duty at law and whether the relationship between the parties as established by statute and having regard to the factors which normally give rise to a duty of care was sufficiently analogous to a relationship to which the common law attaches a duty. In Crimmins McHugh J expressed substantial agreement with the list of key elements which Professor Todd191 had distilled from recent High Court cases relevant to a determination of whether a duty of care exists. They were: “1. The imposition of a common law duty as consistent with and complementary to the performance by the public body of its statutory functions; 2. The duty can be seen to arise specifically in relation to a known Plaintiff rather than generally in relation to the public at large; 3. The Defendant is in a position of control and is under a statutory obligation, or at least has specific power to protect the Plaintiff from danger; 4. The Plaintiff is in a position of special vulnerability or dependence on the Defendant. He or she cannot reasonably be expected to safeguard himself or herself from danger; 5. On a policy overview there is no good reason for giving the Defendant an immunity from liability.”192 His Honour, referring to Sutherland Shire Council193 included statutory authorities amongst the settled categories of circumstances in which a duty may arise.194 McHugh J in Graham Barclay Oysters195 reiterated the questions he posed in Crimmins.196 These key elements were applied by O’Loughlin J in Cubillo v Commonwealth of Australia.197 It was not disputed by the Defendant that key elements two, three and four were satisfied in the present case. The Department was in a special relationship with the Plaintiff and had the means of control to protect the Plaintiff who was in a vulnerable position. It was the first and fifth elements that it was submitted would result in a denial of a duty. In particular the Defendant relies upon the policy overview as requiring that the Department should be given immunity. Salient features of the relationship 190 (n. 47) at 663. 191 Todd, Professor S, ‘Liability in Tort of Public Bodies’ in Mullany, Nicholas and Linden, Allen (eds.) (1998), Torts tomorrow- a tribute to John Fleming, North Ryde, NSW, LBC Information Services at 36. 192 Ibid at 55. 193 (n. 37). 194 Crimmins (n. 37) at [62]. 195 (n. 45) at 577-578 [84]. 196 (n. 37) at 39 [93]. 197 (2001) 112 FCR 455; (2001) 183 ALR 249; [2001] FCA 1213; (2000) 103 FCR 1; (2000) 174 ALR 97 at 481-483 [1230]; [2000] FCA 1084. -- 47 of 84 -- 48 In determining whether a relationship between a statutory authority and a class of persons imports a common law duty of care, Gummow and Hayne JJ, with whom Gaudron and Kirby JJ agreed, said in Graham Barclay Oysters:198 “……Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts found at trial. It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute … The factor of control is of fundamental importance in discerning a common law duty of care on the part of a public authority.”199 (i) Actions were within the ambit of the statutory powers A common law duty of care will be imposed upon an authority or delegate in respect of non-feasance if the following conditions are met: the action which allegedly ought to have been taken must have been within the ambit of the statutory powers conferred on the Defendant, or at least, not be ultra vires those powers. An authority or delegate cannot be under a duty to do that which it is, as a matter of law, powerless to do, the removal of the plaintiff from the custody of her father, the imposition of conditions upon that custody, and any other action believed appropriate to prevent abuse, all constitute actions which were within the ambit of the Defendant’s powers. (ii) The powers must be “operational” – relevance of the “discretion” to exercise the power In its written reply it was submitted on behalf of the Defendant that if there was no duty and no breach in placing the Plaintiff with her father, no duty could arise from the failure to remove the child from the custody of her father. I understood the contention to be that a discretionary decision not to exercise a power was not justiciable. It relied upon the following passage from the judgment of Brennan CJ in Romeo v Conservation Commission of the Northern Territory:200 “…….no duty to exercise a statutory power and to exercise it with care can be imposed by the common law on the repository of power when the statute, operating in the particular circumstances, leaves a repository with a discretion whether to exercise it or not. If it were otherwise, the common law would impose on the repository a duty to exercise the power when the legislature had intended the repository to decide for itself whether and in what manner the power should be exercised…….”201 That part of the speech of Lord Wilberforce in Anns v Merton London Borough Council202 which propounds that the exercise of a discretion will not be negligent if it is within the limits of the discretion was followed by Lord Browne-Wilkinson in X v 198 (n. 45). 199 Ibid at 597-560 [149-150]. See also in Graham Barclay Oysters (n. 45) per Kirby J at 620 [222] and 625 [236] and per Callinan J at 664 [321]. 200 (1998) 192 CLR 431. 201 Ibid at 443 [18]; See also Pyrenees Shire Council (n. 37) per Brennan CJ at 346 202 [1978] AC 728. -- 48 of 84 -- 49 Bedfordshire C.C.203 and by Lord Hoffman with whom the majority of Lords agreed in Stovin v Wise.204 In Pyrenees Brennan CJ considered the notion of Wednesbury unreasonableness to be applicable in determining whether a duty at common law should be imposed for the exercise of a statutory power.205 Pyrenees demonstrates that a duty of care may arise in relation to the exercise of a discretionary power206 as the Council’s failure to pursue its decision was operational. The distinction between matters of policy and operational matters, which reflect the differences between the concerns and obligations of government and those of citizens, has not, as the Chief Justice in Graham Barclay Oysters observed, been rigorously applied and its validity and utility has been questioned.207 The distinction is maintained in relation to decisions of a public authority which are dictated by financial, economic, social or political factors or constraints.208 Policy factors are inappropriate as subjects of curial judgment as to reasonableness, there being no referrable criterion.209 McHugh J in Crimmins210 quoted from the decision of the United States v Gaubert211 that almost anything done by a public authority involves discretionary and policy judgments about priorities and resources. His Honour considered the distinction between operational and policy matters as having come under attack. Toohey and Gummow JJ in Pyrennes considered the distinction unhelpful. In the light of the trend of recent authority, it appears that only the “core area” of policy making which is quasi-legislative or regulatory should be described as not subject to a common law duty of care.212 The statutory powers must not involve a large element of policy or a wide degree of discretion. To be reviewable, the powers and their potential exercise must be “operational” and concerned with implementation or administration of political, policy or broadly discretionary decisions.213” (c) Page 57 para [183] to p 58 [186]: “(i) Foreseeability Foreseeability and proximity, the expansion of Lord Atkin’s responsibility to one’s neighbour214 are both necessary before a duty of care can be recognised.215 203 (n. 47). 204 [1996] AC 923 at 946-947. 205 (n. 37) at 346. 206 Pyrenees (n. 37) per Brennan CJ and Gummow J at [177]. 207 Graham Barclay Oysters (n. 45) per Gleeson CJ at 556 [12]. 208 Sutherland Shire Council (n. 37) per Mason J at 469. 209 Home Office v Dorset Yacht Co Ltd [1970] AC 1004 at 1067; [1970] 2 All ER 294; Graham Barclay Oysters (n. 45) per Gleeson CJ at 557 [15]. 210 (n. 37). 211 (1991) 499 US 315. 212 Sutherland Shire Council (n. 37) per Mason J at 469 and per Deane J at 500; Pyrennes Shire Council (n. 37) per Gummow J at 393-394; Cubillo (n. 109) (2000) 174 ALR per O’Loughlin J at 427 [1207]; Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567 per Black CJ, Davies and Sackville JJ at 593-6. 213 Sutherland Shire Council, (n. 37) per Gibbs CJ (with whom Wilson J agreed) at 442 and Mason J at 469; Pyrenees Shire Council (n. 37) per Kirby J at 425-426; Crimmins (n. 37) per McHugh J at 23; Cubillo (n. 109) (2000) 174 ALR per O’Loughlin J at 427 [1207]; Anns (n. 114); Barrett v Enfield London Borough [2001] 2 AC 550 per Lord Slynn at 211; Graham Barclay Oysters (n. 45) per Gleeson CJ at 553 [6]. 214 Donoghue v Stevenson [1932] AC 562 at 582. 215 Stapleton, Professor J. (1989), ‘Duty of Care Factors: A Selection from the Judicial Menus’ (n. 39) at 60. -- 49 of 84 -- 50 Reasonable foreseeability continues to inform the inquiry as to duty though a narrow view of reasonableness is now taken.216 No duty will be found to exist if the injury which the Plaintiff suffered was not reasonably foreseeable. If it was, other factors will also need to be present before a duty is established.217 “Proximity of relationship” and reasonable foreseeability are related as Deane J emphasised in Jaensch v Coffey.218 Foreseeability of injury and what kind of relationship will found a legal duty which requires reasonable care to another are both relevant criteria of responsibility.219 In rejecting the approach of the House of Lords in Caparo220 the High Court in its unanimous judgment in Sullivan v Moody221 held that foreseeability alone was insufficient to support a finding of a duty of care by a public authority. Only a failure to take reasonable care to prevent certain kinds of foreseeable harm will give rise to the imposition of such a duty.222 Something more was necessary223 than reasonable foreseeability of the likelihood of harm.224 it being insufficient alone to establish the existence of the duty.225 There may be circumstances in which criminal conduct of a third party is attended by such a high degree of foreseeability and predictability that, even in the absence of a special relationship, the law may impose a duty to take reasonable steps to prevent it,226 but it has been doubted that the existence of a duty can turn solely upon the level of probability of harm ensuing.227 (ii) Proximity The relationship of guardian and ward, the Plaintiff submitted, provides the requisite proximity between the Defendant and the Plaintiff.” (d) Page para 59 [190] to p 61 [194]: “(iii) neighbourhood It may be that in search of a unifying concept the High Court returned to the “neighbourhood” principle encapsulated by Lord Atkin in Donoghue v Stevenson228 in the judgments delivered in Gifford v Strang Patricks Stevedoring Pty Ltd.229 The Plaintiffs were the children of a man killed in an industrial accident who brought a claim for damages for negligently inflicting psychiatric injury as a consequence of being informed of their father’s death. Members of the High Court, as some of them did in Graham Barclay Oysters, returned to Lord Atkin’s “neighbourhood” principle for guidance.230 216 Rosenberg v Percival (n. 6) per McHugh J at [26]; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; Tame (n. 98); Graham Barclay Oysters (n. 45). 217 Tame (n. 98) per Gleeson CJ at [12]. 218 (1984) 155 CLR 549 at 579. 219 Tame (n. 98) per Gleeson CJ at [13]. 220 (n. 43). 221 (n. 39) at 573. 222 Ibid at 576. 223 Bryan v Maloney (n. 152) at 617-8; Jaensch v Coffey (n. 195) per Deane J at 579-580, 583 and 585; Pyrenees Shire Council (n. 37); WD & HO Wills (Aust) Ltd v State Rail Authority (NSW) (1998) 43 NSWLR 338 per Mason P at 350. 224 Jaensch v Coffey (n. 195) ; Sutherland Shire Council (n. 37). 225 Tame (n. 98) per Hayne J at 402 [250]. 226 Modbury Triangle (n. 79) per Gleeson CJ at 267; Godfrey v New South Wales (n. 181) at [19]. 227 (n. 201) WD & HO Wills (Aust) Ltd per Mason P at 359. 228 (n. 191). 229 (2003) 214 CLR 269; (2003) 198 ALR 100; (2003) 77 ALJR 1205. 230 Ibid per McHugh J at [46] and [51]; per Gummow and Kirby JJ at [86] and per Callinan at [118]. -- 50 of 84 -- 51 The judgments of the High Court in Annetts v Australian Stations Pty Ltd231 (reported with Tame) also reflect a reliance upon Lord Atkin’s overarching principle.232 In the joint judgment of Gummow and Kirby JJ emphasis was placed upon the direct and close nature of the relationship between the parties underpinning the existence of a duty: “The connections between the parties indicate the existence of a duty of care. An antecedent relationship between the plaintiff and the Defendant, especially where the latter has assumed some responsibility to the former to avoid exposing him or her to a risk of psychiatric harm, may supply the basis for importing a duty of care…...”233 Hayne J also attached significance to the nature of the relationship for the purpose of determining whether a duty was owed.234 (iv) Reasonableness in all the circumstances The tripartite test formulated in Caparo235 that addresses foreseeability, proximity and “fairness, justice and reasonableness” has not been accepted in Australia or Canada.236 A framework for determining liability adopted in the United Kingdom but thus far rejected in Australia is to ascertain what is “fair just and reasonable”.237 Hayne J in his extra curial paper “Restricting Litigiousness”238 did not regard such an approach as illuminating reasons leading to a conclusion. In a commentary upon that paper Nettle J, as he then was, invited the view that such an over-arching principle below which lay precepts which condition recovery may be utilised within the proper judicial method of the application of established principles. Despite the High Court’s rejection of the test of what is fair just and reasonable239 his Honour suspected that in truth Australian courts have adopted a similar approach as revealed in the judgments of the Chief Justice and Kirby J in New South Wales v Lepore; Rich v Queensland.240 Kirby J, in reliance upon the judgments in Tame v New South Wales241 suggests that the High Court has returned to the fundamental test that a duty of care will be imposed “when it is reasonable in all the circumstances to do so”.107” Did DOCS owe the Plaintiffs a duty of care (i) Scope and purpose of the legislation 231 (n. 98). 232 Ibid per Gleeson CJ at [9] and [37]; per Gaudron J at [52] and [54]; per McHugh J at [107] and [144] and per Callinan J at [356-357] . 233 Ibid at 397 [237]. 234 Ibid at 419 [304]. 235 (n. 43). 236 Perre v Apand (n. 42); Sullivan v Moody (n. 39); Cooper v Hobart [2001] SCC 19; (2001) 206 DLR (4th) 193. 237 McFarlane v Tayside Health Board [2000] 2 AC 59 per Lord Steyn at 82. 238 (n. 39) at 387. 239 Sullivan v Moody (n. 39) at 579. 240 [2003] 212 CLR 511. 241 (n. 98). -- 51 of 84 -- 52 [228] Firstly, it is necessary to examine the terms scope and purpose of the relevant statutory regime set up under the CPA to determine whether the statutory authority did owe a duty of care to the plaintiffs and to frame such a duty. [229] The purpose of the Act is to provide for the protection of children.242 A child is defined as an individual under the age of 18 years.243 The paramount principle under the Act is stated as follows: … the main principle for administering this act is that the safety, wellbeing and best interests of a child are paramount.244 [230] The following general principle is also provided for: a child has a right to be protected from harm or risk of harm245 [231] There is further provision that the following principles are relevant when exercising a power or making a decision under the Act. A power under this Act should be exercised in a way that is open, fair and respectful to the rights of each person affected by the exercise of the power. [232] Harm is defined as follows: (1) Harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing. (2) It is immaterial how the harm is caused. (3) Harm can be caused by – (a) physical, psychological or emotional abuse or neglect; or (b) sexual abuse or exploitation. (4) Harm can be caused by – (a) a single act, omission or circumstance; or (b) a series or combination of acts, omissions or circumstances.246 [233] Guardianship is defined as follows: If the chief executive or someone else is granted guardianship of a child under a child protection order, the chief executive or other person has – (a) the right to have the child’s daily care; and (b) the right and responsibility to make decisions about the child’s daily care; and (c) all the powers, rights and responsibilities in relation to the child that would otherwise have been vested in the person having parental responsibility for 242 Child Protection Act 1999 (Qld) S 4. 243 Child Protection Act 1999 (Qld) S 8. 244 Child Protection Act 1999 (Qld) S 5A 245 Child Protection Act 1999 (Qld) S 5B 246 Child Protection Act 1999 (Qld) S 9. -- 52 of 84 -- 53 making decision about the long-term care, wellbeing and development of the child.247 [234] The Chief Executive of DOCS is empowered to place the child in the care of an approved kinship carer or approved foster carer.248 Section 83A provides: (1) Before placing the child in care under section 82, the chief executive must – (a) give to the proposed carer the information that the chief executive has about the child that the proposed carer reasonably needs to help him or her make an informed decision whether to agree to the placement; and (b) give the child information the chief executive has about the proposed carer and members of the proposed carer's household that the child reasonably needs to participate meaningfully in the decision about who will be the child's carer; and (c) if possible, give the child an opportunity to meet the proposed carer and members of the proposed carer's household. (2) When placing the child in care, and while the child is in care, the chief executive must give the carer information that the chief executive has relating to the child that the carer reasonably needs— (a) to provide care for the child under this Act; and (b) to ensure the safety of the child, the carer and other members of the carer's household. (3) If the child is placed in the care of a licensee— (a) a requirement under subsection (1) or (2) to give information to the proposed carer or carer applies to the licensee instead of the chief executive; and (b) the chief executive must give the licensee the information that the chief executive has about the child that the licensee needs to comply with the requirement. (4) In deciding the information about the child to give to someone under this section, the chief executive must have regard to— (a) the views and wishes of the child, having regard to the child's age and ability to understand; and (b) the proposed length of time of the placement; and (c) the child's right to privacy under the charter of rights. (5) Before giving information about the child to someone under this section, the chief executive must tell the child what information is being given and why it is being given. (6) In this section— carer, in relation to a child, means— (a) if the child is placed in the care of an approved carer—the approved carer; or 247 Child Protection Act 1999 (Qld) S 13. 248 Child Protection Act 1999 (Qld) S 82. -- 53 of 84 -- 54 (b) if the child is placed in the care of another entity—the individual who directly provides care to the child. [235] Essentially, the scheme provided for under the Act is a scheme for the protection of children which required DOCS to treat the interests of children as paramount. Obviously this extends beyond the interests of the foster child himself as is evidenced by the reference in section 5D of the Act to the requirement to exercise the power in a way that is open fair and respectful to the rights of each person affected by the exercise of that power. This includes the children of the third party and her husband. [236] Section 5E provides: (1) When giving a child an opportunity to express their views under this Act— (a) language appropriate to the age, maturity and capacity of the child should be used; and (b)communication with the child should be in a way that is appropriate to the child's circumstances; and (c) if the child requires help to express their views, the child should be given help; and (d) the child should be given an appropriate explanation of any decision affecting the child, including a decision about the development of a case plan or the effect of the decision or the case plan; and (e) the child should be given an opportunity, and any help if needed, to respond to any decision affecting the child. (2) Nothing in this section requires a child to express a view about a matter. (3) This section does not apply to a court. [237] The plaintiffs come within subsection (1)(d) as they too would be effected by any decision to place the foster child with the third party and her husband. [238] In some cases, the exclusion of a duty of care can be implied from the intent and purpose of the statutory scheme. The requirement to act in the best interests of children, for example, would be very relevant if DOCS acting in good faith on the strength of information received from someone else took into care a child and removed that child from the effective guardianship of its parent. The requirement under the legislation to act in the best interests of the child would clearly justify such a drastic short term measure so that the matter could be properly investigated. It would clearly be contrary to the scope and purposes of the whole regime if, in those circumstances, DOCS was found to owe some duty of care. [239] The situation here is quite different. The foster child had been under the guardianship of the department for most of his life and the department was aware of what had happened with the three year old child and was aware of the recommendations of Mr Ritchie in his report. It would not cut across the objects of the statute to find that a duty of care to the plaintiffs did exist in this particular matter. It could not be said that the existence of a duty of care in this matter would have discouraged the performance by the employees of DOCS of their statutory -- 54 of 84 -- 55 duties. There is no provision in the legislation of immunity from civil suit although it is accepted that the duty would be held to exist only in circumstances where any harmful consequences of the acts authorised by the legislation could be avoided by use of reasonable care or skill. [240] Further, there are not any obvious policy considerations which would cut across the imposition of a duty of care in this case. It is argued that had the department, through its officers, exercised reasonable care and skill in the placement of the foster child on his release from the Cleveland Youth Detention Centre then the harmful consequences would not have arisen for the risk of such harmful consequences could have been minimised. In this particular case there is no reason on an analysis of the relevant legislation to exclude the existence of a duty of care. (ii) Class persons allegedly owed duty [241] The plaintiffs clearly come within a defined class of persons who could be affected by the decision to place the foster child with the third party and her family. At the relevant time they were children and were clearly affected by the exercise of the power to place the foster child there for the purposes of section 5D and 5E of the CPA. It would be wrong to conclude that DOCS as guardian of the child under the Act had a duty of care to anyone and everyone who had contact with the foster child. Here, however, the relevant officers of DOCS knew that the foster child was being placed in the same home as the plaintiffs who were teenage girls against the background of what he had done previously and against the background of the obvious need to ensure that he obtained appropriate counselling and/or sex education where none had been provided. (iii) DOCS’s degree of control over the risk [242] In this case DOCS was vested with the power to place the child. I accept that the department was dealing with an uncooperative and very difficult child. At times he was quite defiant and absconded from placements. [243] The defendant has effectively argued that he was “self placing” and that there was nothing DOCS could do to require him to live in a particular place. On an earlier occasion however, the relevant officers knew they were able to resort to bail conditions in relation to his pending charges and actually had those bail conditions varied to try and prevent him from continuing to go to the third party’s home. [244] Further, this case was complicated by the fact that the third party and her family did not have a full appreciation of the risks associated with the foster child residing with them. Various officers of DOCS conceded this. [245] Essentially the defence case is that he was going to go there anyway and that the third party and her family were going to encourage him to go there therefore there was nothing DOCS could do about that. [246] Whilst there was considerable material available to the relevant officers of DOCS in terms of the risks associated with placing the foster child with a family no effort appeared to have been made to ensure that the third party, her husband, the three plaintiffs and the third party’s sister all of whom were affected by the decision to place him there had a full appreciation of such risk. -- 55 of 84 -- 56 [247] The risks confronting the three plaintiffs were only fleetingly dealt with in the Schaeffer report. No effort appears to have been made to ensure that the third party and her family were made fully aware of the risks before the placement and before the abuse. Compliance with section 83A of the CPA would have allowed the third party and her husband to properly consider the matters relevant to the three plaintiffs so as to make the necessary informed decision. [248] From the moment the department received the Ritchie report, DOCS had control over the risk. They had control in terms of the need for counselling and/or sex education and had control over placement of the foster child and had the staff and the resources available to ensure that all relevant information was provided for the purposes of the informed decision under section 83A of the CPA. (iv) DOCS’s knowledge of the risk [249] Here the strength of the evidence was such that there was clear actual knowledge of the risk posed by placing the foster child with the third party and her family and by the lack of knowledge of such risk on the part of the third party and her family. This went much further than any implied knowledge. I have already summarised what different officers said at different times, and it is clear this is one case where the relevant officers knew of the risk that the foster child posed to the teenage girls in the household. What Ms Fielder said on the thirteenth of January 2006 when she originally refused the application neatly summarised the department’s concerns both in terms of the risk that he presented to other children but also the inability of the third party and her husband to acknowledge such risk. (v) Foreseeability [250] Foreseeability is still relevant in matters such as this and it is not difficult to conclude that it was reasonably foreseeable to DOCS that the foster child with his background as summarised did present a risk to the teenage girls in the household at the relevant time. Ms Fielder in refusing the application clearly recognised such risk and no proper risk assessment was undertaken prior to the placement. I find that it was reasonably foreseeable to DOCS, through its relevant officers, that the three plaintiffs were at risk of psychological and/or physical injury stemming from the risk of abuse by the foster child. (vi) Scope of Duty of Care [251] In all the circumstances, I find that DOCS did owe a duty of care to the three plaintiffs as particularised in paragraph [205] hereof. Breach of Duty of Care [252] Section 9 of the Civil Liability Act 2003 applies in this case. It provides: (1) A person does not breach a duty to take precautions against a risk of harm unless – (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and (b) the risk was not insignificant; and -- 56 of 84 -- 57 (c) in the circumstances, a reasonable person in the position of the person would have taken the precautions. (2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things)– (a) the probability that the harm would occur if care were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity that creates the risk of harm [253] I have already dealt with the question of foreseeability and it is almost trite to say that the risk here was not an insignificant one. I have referred to the way in which at least one officer misinterpreted the effect of the report from Mr Ritchie. In this case, the failure to ensure the child underwent the appropriate counselling and/or sex education prior to his various placements after the provision of the Ritchie report confirms that the risk was significant. His assessment of risk depended entirely on the foster child receiving the appropriate counselling and/or sex education. [254] It is not just with the benefit of hindsight that I find that a reasonable person in the position of DOCS would have taken the necessary precautions. At the very least no attempt should have been made to place the foster child with the third party and her family until the necessary counselling or education had been obtained and/or until the third party and her husband had been appraised of all the relevant history and risks so that they could make an informed decision as required under section 83A of the CPA. By virtue of section 83A(2)(b) the information provided to the third party and her husband had to include all relevant information about ensuring the safety of the three plaintiffs who were members of the household at the relevant time. [255] In considering that issue I have to look, amongst other things, at the probability that the harm would occur if the care was not taken and here that very probability was conceded by a number of officers of DOCS as per the evidence I have already summarised. The likely seriousness of the harm was indeed significant in this case. The allegations on the earlier occasion were of shocking mistreatment of a three year old combined with a total lack of insight as to the seriousness of such offending. [256] The defendant also argued that regard should be had to the burden of taking precautions to avoid the risk of harm under section 9(2)(c) of the CLA. I accept that those working for DOCS have a very difficult task and it is clear that the foster child here was one of the more difficult children that they had to deal with. Here, however, there was already very serious offending coupled with an obvious need for counselling and/or sex education and it seems to me that the burden of taking precautions to avoid the risk would not have been such that it was unrealistic for DOCS to take such precautions. It would not have cost a considerable amount for the necessary counselling and/or sex education and it would merely have taken time for someone for and on behalf of the department to make sure that the third party and her husband had matters explained to them in such a way that the necessary informed decision could be made. -- 57 of 84 -- 58 [257] It was also argued on behalf of the defendant that the social utility of placements would be relevant in considering section 9(2)(d) of the CLA. It was argued, in effect, that courts should not make it too onerous for those charged with the responsibility of making decisions such as this such that it would become difficult or just about impossible for them to make such decisions in the future. This was an exceptional case however and the earlier offending by the child had been very serious. Whilst it is important that the officers of DOCS find placements for children the subject of guardianship orders this was one case where they had considerable warning of the risks associated with placing the foster child in the home. It would not have been particularly onerous to organise the appropriate counselling and/or sex education or to provide all of the information for the purposes of the informed decision. [258] It was also argued on behalf of the defendant that DOCS did take reasonable precautions against the risk of harm by commissioning and carrying out the Schaeffer report. I have already dealt with this report in detail and it clearly was not geared towards the whole issue of taking precautions against the risk of harm to the children in the household of the third party but was geared more towards the suitability of the third party and her husband as carers. [259] It could not be said that the report itself was such that the third party and her husband received such necessary information about the risks associated with the proposed placement so as to make informed decisions for the purposes of section 83A of the CPA. [260] Further, it was argued that there was nothing DOCS could do to stop the child residing with the third party and her family and that no reasonable person in the position would effectively have been able to prevent him from living there. [261] This argument focuses almost purely on the placement and for a start does not address the whole issue of counselling and/or sex education the need for which was identified in the Ritchie report. Further, the whole purpose of the statutory scheme was to put DOCS in such a position that it could make all relevant decisions as to where the relevant child resided. Officers of DOCS had previously cooperated with Police Prosecutions and the Youth Justice Service in terms of youth bail conditions and clearly they had input in terms of what should happen prior to the child being released on bail on the thirteenth of December 2005. [262] I am satisfied that DOCS did breach its duty of care to the plaintiffs by placing the child with the third party and her family and by allowing the child to remain in that placement when they knew or ought reasonably to have known of the risks to the plaintiffs because of the earlier behaviour on the part of the foster child and the fact that no attempt had been made to deal with the need for counselling and/or sex education as identified by Mr Ritchie. Further, DOCS was in breach of its duty of care by failing to provide all of the information that was reasonably needed to help the third party and her husband make the informed decision for the purposes of section 83A of the CPA. Causation [263] Regard must be had to sections 11 and 12 of the CLA which provide: 11 General principles -- 58 of 84 -- 59 (1) A decision that a breach of duty caused particular harm comprises the following elements— (a) the breach of duty was a necessary condition of the occurrence of the harm (factual causation); (b) it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (scope of liability). (2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty—being a breach of duty that is established but which can not be established as satisfying subsection (1)(a)—should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach. (3) If it is relevant to deciding factual causation to decide what the person who suffered harm would have done if the person who was in breach of the duty had not been so in breach— (a) the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty. 12 Onus of proof In deciding liability for breach of a duty, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. [264] The defendant argued that section 11(1)(a) of the CLA was not satisfied in this case on the basis that it could not be concluded that any breach on the part of DOCS was a necessary condition for the occurrence of the harm. It was argued that the plaintiffs could not show that “but for” the breach of duty the plaintiffs would not have occasioned the harm. [265] In effect, it was argued the even if they were not given all of the information relevant for the purposes of an informed decision under section 83A of the CPA the third party and her family all wanted the foster child to reside there and he would have resided there anyway. [266] I have already dealt with this argument insofar as it relates to the issue of placement. I have had regard to section 11(3) of the CLA and I note that any statements on the part of the plaintiffs as to what they would have done had they been fully aware of the risks are not admissible as such, unless they are statements against the interests of them. Here, they all effectively said they would not have agreed to his living there had they known all of the relevant matters. [267] That subsection does not appear to go that far in relation to the third party and her statements in evidence to that effect are probably admissible. -- 59 of 84 -- 60 [268] I must consider this issue in light of all of the relevant circumstances and on balance I find that had the third party and her family been fully informed as to the risks associated with the placement for the purposes of section 83A of the CPA they would not have agreed to the placement of the foster child with them. [269] What is particularly relevant here is the fact that DOCS (as evidenced by the note made by Ms Fielder on 13 January 2006 when she originally refused the application) recognised that the third party and her husband were unable to acknowledge risk associated with the proposed placement. [270] The plaintiffs were their children and it would be unrealistic to assume the children were aware of the risk. The fact that the third party was so keen to have the foster child reside with her and her family emphasised the need for that very “inability” to be addressed. By the time Ms Fielder wrote of her concerns the only children resident in the home were the three plaintiffs and the third party’s younger sister. All of the other foster children had gone by then. [271] I find that had that “inability” been properly addressed, and the third party and her family, fully informed as to the risks, then the third party and her husband would not have accepted the placement. I accept what the third party said in this regard. Further, if they were unable to properly address the perceived “inability” they should never have placed the foster child there in the first place. [272] The second matter to be considered for the purposes of section 11 of the CLA is whether or not it is appropriate for the scope of the liability of DOCS to extend to the psychological harm caused in this case that is not difficult to conclude. I have already dealt with the issue in terms of the whether a duty of care existed and the risk here was clearly significant. The officers of DOCS knew the history of the foster child, knew of the risks associated with placing him in a household where there were teenage girls present, knew of the need for counselling and/or sex education which had not been provided and knew of the naivety of the third party and her husband in relation to such risk. [273] In those circumstances responsibility for the harm should be imposed on the DOCS which was in breach of its duty. Assumption of Risk [274] The defendant also raised arguments about the assumption of risk on the part of the plaintiffs for the purposes of section 13 and 14 of the CLA. It is not necessary to set them out in detail other than to say that relevant division of the Act relates to obvious risk. [275] It could not possibly be said that the plaintiffs were aware of any obvious risk for the purposes of that division. This too, is well illustrated by the refusal document signed by Ms Fielder on 13 January 2006. If the parents are naïve about particular risk it would be impossible to conclude that the risk had to be obvious to their teenage children who they were responsible for and who they were raising. No issues of assumption of obvious risk arise in this matter. Arguments Pursuant to Sections 35 and 36 of the Civil Liability Act [276] Sections 35 and 36 of the CLA provide as follows: -- 60 of 84 -- 61 35 Principles concerning resources, responsibilities etc. of public or other authorities The following principles apply to a proceeding in deciding whether a public or other authority has a duty or has breached a duty— (a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising the functions; (b) the general allocation of financial or other resources by the authority is not open to challenge; (c) the functions required to be exercised by the authority are to be decided by reference to the broad range of its activities (and not merely by reference to the matter to which the proceeding relates); (d) the authority may rely on evidence of its compliance with its general procedures and any applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceeding relates. 36 Proceedings against public or other authorities based on breach of statutory duty (1) This section applies to a proceeding that is based on an alleged wrongful exercise of or failure to exercise a function of a public or other authority. (2) For the purposes of the proceeding, an act or omission of the authority does not constitute a wrongful exercise or failure unless the act or omission was in the circumstances so unreasonable that no public or other authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions. [277] The defendant argued that these sections were relevant in this matter on the issue of whether or not the DOCS owed a duty or had breached that duty. Essentially the argument was that the different officers involved had massive workloads. Some in fact gave evidence of that. [278] I accept that some of the officers did have incredibly high workloads and I accept that the foster child here would have been incredibly difficult for them to deal with. I also accept that it would probably be impossible to fully fund a department such as this so that every matter could be dealt with ideally. [279] I have already found, however, that this was an exceptional situation. This relates to the seriousness of the foster child’s earlier sexual offending, his general misbehaviour, his refusal to accept authority, the need for counselling and/or sex education and the fact that such needs had not been met. This all meant that he clearly constituted a risk to households where there were girls present. It could not be said that it was beyond the resources, financial or otherwise, of DOCS to provide the necessary counselling and/or sex education and to provide all of the necessary information for the purposes of the informed decision. [280] Further, it seems to me that ensuring that the child did receive all of the relevant counselling and/or sex education would have been a reasonable exercise of the function of DOCS and ought reasonably to have been done in this case. Liability -- 61 of 84 -- 62 [281] In all circumstances I am satisfied that the first, second and third plaintiffs have made out their case in liability as against the defendant. The harmful consequences of potential abuse of the three plaintiffs by the foster child could have been avoided by the exercise of reasonable care and skill on the part of the relevant officers of DOCS. Contributory Negligence [282] The defendant has alleged contributory negligence against both the first and second plaintiffs and the particulars are identical, namely:  Failing to lock her bedroom door;  Failing to inform the third party of the acts of the foster child as pleaded; and  Failing to tell the third party that the foster child was entering her bedroom at night. [283] What is particularly relevant to these allegations is the fact that the defendant was aware of the risks associated with placing the foster child with the third party and her family and was aware of the inability of the third party and her husband to properly acknowledge such risks. [284] The failure to provide sufficient information to all concerned so that an informed decision could be made under section 83A of the CPA means that it is difficult for the defendant to establish that the first and second plaintiffs were aware of the risk and therefore should have taken such precautions to lock the bedroom doors, for example. [285] In the absence of any evidence that they were aware of the risk it could not be said that they should have locked the doors to their bedrooms. Further, there is evidence that when then they did lock their doors he did manage to access the rooms with a key. [286] As to the second allegation, experience in the Courts has shown that different people react differently when confronted with sexual abuse. One has only to look of the number of complaints that come before the Court many years after the event to confirm this. No two complainants are the same and it would be impossible to conclude that any failure to tell their mother that he had been coming into their room would justify findings of contributory negligence. [287] As to the third particular of contributory negligence the non-compliance with 83A of the CPA would also be relevant and I repeat what I said in relation to the second allegation. [288] In all the circumstances, I find that neither the first plaintiff nor the second plaintiff contributed to their injuries. The Defendant’s Case Against the Third Party [289] It is not necessary to go into this case in detail because the case is fundamentally flawed. Even if it could be established that the third party did owe the plaintiffs a duty of care it would be impossible in this case to make a finding that she had breached such a duty. -- 62 of 84 -- 63 [290] This again is because of what DOCS through its officers knew in terms of the inability of the third party and her husband to properly acknowledge the risk associated with the proposed placement. [291] Certainly, she knew that the foster child had committed earlier serious sexual offences but there is no evidence that she was provided with such information as was necessary for her and her husband to make the informed decision for the purposes of section 83A of the CPA. Of necessity, that information had to include matters relevant to ensuring the safety of the three plaintiffs. [292] She was not made aware of the contents of the Ritchie report and not made aware that the counselling and/or sex education referred to was not undertaken. She was obviously very keen to have the foster child reside with her and her family so keen, in fact, that the department had the reservations as set out in the refusal document signed by Ms Fielder on 13 January 2006. [293] The defendant placed much reliance on the Schaeffer report but Ms Schaeffer herself clearly had concerns about whether or not the third party was fully appreciative of the risks to her children.249 [294] As far back as 10 June 2005 Mr Oates was recommending that any contact between the foster child and the third party and her husband take place only when other children were not present and until some psychological assessment was done on the child to assess his risk of reoffending.250 [295] It is also relevant that Amanda McCallum from CFFC organised the meeting on 9 September 2005 to discuss amongst other things how contact could be facilitated between the foster child and the third party and her husband without putting other children in their care at risk.251 [296] Further, it is impossible to conclude on the evidence why the attitude of DOCS changed in terms of the foster child residing with or even having contact with the third party and her family. On 4 October 2005 the department was making approaches to the Youth Justice Service and to the Police Prosecutions to have his bail varied so that he did not attend within 25 metres of the third party’s premises yet, just over two months later, DOCS was placing him with the third party and her family. There is no evidence to suggest anything was done in terms of counselling and/or sex education in the interim. [297] It is also of concern that Ms Roberts who had quite extensive dealings with the foster child was not made aware of the earlier report of Mr Ritchie.252 With the benefit of her experience, she agreed that anyone who had committed a serious offence of the type committed by the foster child was going to be a risk to any other child.253 [298] More importantly, she agreed that the third party did not seem to have a full appreciation of the risks to children and that this was something that concerned her and that she had previous experience running a sexual assault service in Cairns for 249 See paragraph 157 hereof; evidence, T 5-35 L 27-36. 250 See paragraph 41 hereof; email, exhibit 2A.40. 251 See paragraph 68 hereof; case notes Amanda McCallum, exhibit 2A.49. 252 See paragraph 80 hereof, evidence, T 6-36 L 42-46. 253 See paragraph 81 hereof, evidence, T 6-36 L 20-23. -- 63 of 84 -- 64 ten years.254 I have already dealt with the concerns that Mr Bankes had shortly prior to his return to DOCS and how he later became the immediate superior of the childcare officer responsible for the foster child.255 Again there was no evidence from Mr Bankes or anyone else as to what had changed in the interim. These matters all confirm that there was a clear need in this case for DOCS to provide all relevant information to the third party and her husband so that the informed decision under section 83A of the CPA could be made. As discussed in my analysis of Ms Schaeffer’s report she went to great lengths to explain that she was not conducting a risk assessment but was essentially dealing with the suitability of the third party and her husband as carers. On their already established history there was never going to be any problem in that regard. [299] I have grave doubts as to whether or not the third party in her position would have owed any duty of care to the plaintiffs in any event but it is unnecessary to make any findings in that regard because of the failure of DOCS to fully inform her of the matters of which they knew or ought reasonably to have known for the purposes of making the informed decision. [300] For these reasons the claim against the third party is dismissed. Quantum First Plaintiff [301] The first plaintiff was born on 2 February 1988 and was 17 to 18 years of age during the period of abuse which ran from late January 2006 to late May 2006. [302] She clearly has had problems, particularly of a psychological nature ever since she was very young as is evidenced by the various reports set out in the medical records which are summarised in the report of Dr Antoce dated 15 June 2012.256 [303] In a report from the Child and Youth Mental Service dated 4 January 2002, Mr Michael Davies a clinical nurse noted that the first plaintiff had been suffering from migraine headaches since she was three and had been diagnosed with post-traumatic stress disorder in relation to what he referred to as “the gun episode.”257 The first plaintiff conceded in evidence that she had been suffering from migraines since she was little.258 [304] The gun incident was explained in her quantum statement in paragraph 6259 where she said that when she was nine years of age a man had pointed a gun at her head at Narranderra, New South Wales. There is ongoing reference to this incident right throughout medical reports and it is not necessary for me to refer to the particular passages. [305] It is clear from what she has told a number of health professionals over the years that her perception of that incident is that her mother drove away after the man pointed the gun at her and that there was considerable resentment towards her mother because of that. 254 See paragraph 82 hereof, evidence, T 6-53 L 4-13. 255 See paragraph 93 hereof. 256 Exhibit 2C.5. 257 Report of Dr Antoce, page 24. 258 T1-73 L30. 259 Exhibit 4 -- 64 of 84 -- 65 [306] It is also clear from the medical reports that she and her mother clashed considerably and that this became worse when she was a teenager. [307] She saw mental health professionals about the aftermath of the gun incident prior to the subject abuse. In 2002 Dr Warlow a visiting child psychiatrist diagnosed her as having suffered from a major depressive disorder as a result of this incident. At the time she was also complaining of leg pains but he concluded that they had a psychosomatic aspect and may well come under the somatoform label. He noted that at that stage (she was then 14 years of age) she was crippled from her low self- esteem and lack of capacity for any sense of opinion to do with identity. She complained at that stage that the leg pains were so severe that they would make her bedridden. He recommended psychotherapy with emphasise on her anxiety and somatic problems and the need for family and parenting assistance.260 [308] She and her mother had numerous attendances upon the Child and Youth Mental Service for psychological and physical problems which, again, appeared to be of a psychosomatic nature.261 She was also experiencing difficulty from bullying from other school students and was frequently missing school. [309] On 15 August 2005 she saw a Dr Bennett who confirmed that she was experiencing symptoms of ongoing posttraumatic stress disorder/depression which he attributed to the earlier incident involving the gun. He noted that she had actually left school at 14 ½ years because of bullying related problems. He said that she had not been given medication until he prescribed Lexapro about three months before. He said that her condition improved to some extent after that. At the time he said she needed some long term help with what he described as “the PTSD aspect of things.”262 [310] In relation to her post-abuse condition I had regard to the report of Dr Antoce provided to the solicitors for the first plaintiff and to the reports of Dr Varghese dated 2 March 2010 and 4 March 2014 provided to the solicitors for the defendant. Both doctors deal extensively with the medical reports and records available both prior to and subsequent to the abuse. In the case of Dr Varghese, some of that material was not available until the preparation of his second report although it did not affect his overall opinion. Both doctors also considered relevant the death of an uncle which occurred in early 2007 when he was only 33 years of age. The first plaintiff told Dr Antoce that “everything went downhill after that”.263 [311] I found the first plaintiff a credible witness. She has experienced an extremely difficult life and it was not easy for her to have to sit in court and be subjected to cross-examination. At different times she had difficulty providing detail and was uncertain about some of the matters that had happened in her past. This did not concern me because her medical history was well documented in any event. Further, it is not surprising that anyone who has experienced the difficulties that she has had throughout her life would find it hard to come to court and talk about those matters in front of others. She appeared, however, to do her best. 260 Report of Dr Antoce, page 18. 261 Report of Dr Antoce, pages 24-26. 262 Report of Dr Antoce, paragraph 26. 263 Report of Dr Antoce, page 6. -- 65 of 84 -- 66 [312] She described the impact the abuse and subsequent developments had upon her in her quantum statement in paragraphs 8 to 23264 and I accept what she said in that regard. In summary, I accept that she had experienced feelings of fear, hatred, revulsion and helplessness. I accept that the foster child was a big strong boy for his age and she at that stage was very lightly framed. I accept that she then continued to experience feelings of isolation, vulnerability, frustration and anger. This had an adverse effect on her sleep and also on her ability to socialise. [313] Unfortunately, she is now fearful of people of Aboriginal descent or people who look in any way like the foster child. She continues to experience nightmares and has suffered a considerable loss of self-esteem. She also experiences flashbacks about what happened. She describes in paragraph 10 two attempts at committing suicide. [314] It is relevant in this case that the family has effectively torn itself apart since the subject incidents. The first plaintiff no longer has anything to do with the second plaintiff and the third party and seems to be aligned with the third party’s mother. The third plaintiff herself seems to have no contact with the third party and is also aligned more with the third party’s mother. It seems that both the third party and her mother are fairly strong characters, with the third party’s husband being described right throughout the material as the more easy going member of the family. [315] Unfortunately there are issues of blame backwards and forwards, particularly blame against the third party for allowing the foster child to reside with them and it is difficult to predict if there will be any reconciliation within the family. [316] I also accept that the first plaintiff has difficulties with intimacy as particularised in paragraph 18 of her quantum statement, although she does appear to have a current ongoing relationship. [317] Her work history is indeed unfortunate. She had managed to enter the workforce prior to the subject abuse and had held a number of positions. She last worked in February 2007, shortly after her uncle died and she has not worked since. (i) General damages [318] General damages in this case have to be assessed on the PIRS table, and to this end I have assessments from both Dr Antoce and Dr Varghese. [319] Dr Antoce diagnosed her as suffering from a mixed anxiety depressive disorder with a combination of longstanding trauma related symptoms such as PTSD, nonspecific anxiety, personality vulnerability and difficult interpersonal relationships, dissociative symptoms, depressive symptoms and associated somatising tendencies.265 She noted that she presented with significant difficulties in regards to emotional communication and a degree of alexithymia (difficulty in describing or recognising one’s emotions) and with patchy description of historical data due to memory difficulties and selective exclusion of uncomfortable details.266 She noted 264 Exhibit 4. 265 See report of Dr Antoce, p 41. 266 See report of Dr Antoce, p 41. -- 66 of 84 -- 67 that the first plaintiff became depressed when she was required to talk about the abuse and had attempted not to think about it and put it all behind her.267 [320] The first plaintiff expressed concerns to Dr Antoce that she was unsupported by her mother in the early stages after the abuse.268 Dr Antoce accepted that her symptoms were complicated by the traumatic event, namely the death of her uncle in 2007.269 She noted that even six years after the abuse the first plaintiff was having difficulty putting it behind her. Dr Antoce agreed that the sexual abuse and the experiences of what she perceived to be betrayal by her mother had contributed to an aggravation of her symptoms of post-traumatic stress disorder. This has influenced her sense of self, identity and interpersonal function.270 [321] The issue of this perceived betrayal needs to be looked at in its proper context. When dealing with liability I found that DOCS failed to act on the inability of the third party and her husband to fully appreciate the risks. Against that background it is not surprising that the first plaintiff may have felt betrayed by her mother. The failure on the part of DOCS to address that “inability” was critical in this case. [322] Dr Antoce clearly accepted that the earlier gun incident, followed by the later experiences of bullying in early adolescence, did have a significant impact upon her.271 She eventually provided a PIRS rating of 6% and said: It is difficult to comment on the complete nature of the pre-existing injury. Based on the information available it seems that (the first plaintiff) experienced a degree of impairment in her school performance and interpersonal function prior to the sexual abuse and that she did have residual symptoms related to her experience of trauma in early childhood. She received a diagnoses of PTSD and Dysthymic Disorder in the past. It seems that she had improved to a large extent in the years leading to the sexual abuse. The impairment associated to her pre-existent history would amount to about one percent in my view, with mild impairments in the areas of social functioning and concentration persistence and pace. I emphasise that it is harder to assess an impairment in retrospect and related to childhood and early adolescent age and that a number of significant stressors occurred after the sexual abuse and have complicated the clinical picture, therefore the impairment assessment is only tentative. In my view, the impairment related to the sexual abuse and subsequent stressors and events in (the first plaintiff’s) life is 5% and is likely to be permanent.272 [323] Dr Varghese in his report dated 2 March 2010273 diagnosed the first plaintiff as then suffering from dysthymia with some issues relating to sexual function and some sexual aversion. He described these problems as being multifactorial in origin and that her personality vulnerability was likely to be playing a significant role.274 [324] By the time he provided his second report, however, he had the benefit of having received all of the relevant medical records. On this occasion he diagnosed her as suffering a dysthymic disorder which he said could also be called an anxiety depressive neurosis. He described her then condition as justifying a PIRS rating of 267 See report of Dr Antoce, p 41. 268 See report of Dr Antoce, p 42. 269 See report of Dr Antoce, p 42. 270 See report of Dr Antoce, p 44. 271 Report of Dr Antoce, pp 43-44. 272 Report of Dr Antoce, p 46. 273 Exhibit 2C.4. 274 Exhibit 2C.4, p 8. -- 67 of 84 -- 68 5% and then considered the relevant other stressors which may have contributed to her condition. [325] He said: I do not believe [the third plaintiff’s] current condition is completely attributable to the incident which is the subject of her claim. I note that the dysthymia and personality dysfunction is pre-existing and thus to some extent her problems are a continuation of what was present before. In addition I note that there are other stressors that have been outlined in my previous report and highlighted in the report of Dr Antoce and also mentioned in the report of Dr Larder. Some of the stressors Dr Antoce notes would, in my mind, represent symptoms of psychiatric illness.275 [326] The report from Dr Larder is also summarised in the earlier report from Dr Antoce and it is not necessary to consider that any further. [327] When asked further about his assessment Dr Varghese said: Her current condition is of multifactorial origin. There is likely to be some constitutional predisposition and there is serious development adversity with traumatic incidents in addition to family dysfunction. I note again the issue of numerous live stressors. The medical conditions are also of importance in contributing to the dysthymia. With respect to the PIRS I refer you to my previous report where I attempted to score the PIRS from reported function as well as pre-existing issues I estimated then that the level of impairment was 6% and the pre-existing impairment was 4%. Please find enclosed a current PIRS as estimated from my reported current findings.276 [328] There is, therefore, a considerable difference of opinion between Dr Antoce and Dr Varghese in terms of the relevance of any pre-existing condition in this case. They were the only two psychiatrists called to give evidence. [329] When questioned further about the relevance of pre-existing conditions Dr Antoce in evidence said: I said, based on the information available, it seems that (the first plaintiff) experienced a degree of impairment in her school performance and interpersonal functions prior to the sexual abuse and that she did have residual symptoms. She received a diagnosis of PTSD and dysthymic disorder in the past. Since that, she had improved to a large extent in the years leading to the sexual abuse. The impairment associated to her pre- existing history would amount to about 1%, in my view, with mild impairment in the areas of social functioning and concentration, persistence and pace, and then I make a point of how difficult it is anyway to (indistinct) retrospect, and that a number of significant stressors occurred after the sexual abuse and complicated her subclinical picture.”277 [330] In this case I accept the assessment and the opinions of Dr Antoce over those of Dr Varghese. Despite leaving school at 14 and a half years of age and despite the bullying at school and despite the fact that she missed a large amount of schooling she still managed to get herself into the workforce and was working regularly up to and during the period of abuse. 275 Second report of Dr Varghese, Exhibit 2.C.6, p 10. 276 Second report of Dr Varghese, p 10. 277 T4-62 ll 3-12. -- 68 of 84 -- 69 [331] I have analysed her financial records, as set out in Exhibit 2-E.2, and it is clear that she held down fairly regular employment after she left school. [332] She worked in a variety of positions, with the most longstanding of those being one in childcare. [333] For the financial year ending 30 June 2004 she received $6,094.00 gross with tax paid of $879.00, namely $5,215.00 net. [334] The following financial year she received $8,432.00 gross with tax paid of $811.00, namely $7,621.00 net. [335] The following year, which also included the abuse towards the end of that financial year, she received $7,173.00 gross with tax paid of $628.00, namely $6,545.00 net. [336] For the period of time from 1 July 2006 up until February 2007 she received $4,821.00 gross with tax paid of $662.00, namely $4,159.00 net. [337] Dr Bennett talked of some improvement in her condition after she was prescribed Lexapro earlier in 2005 and I accept that there was some improvement in her condition prior to the sexual abuse. After taking into account her pre-abuse work history and the fact that there was this improvement in 2005 I accept the opinions of Dr Antoce over those Dr Varghese. [338] Having regard to her effective PIRS assessment of 5% I assess the matter as having an ISV of 8 and I allow $8,600.00 for general damages. (ii) Past economic loss [339] This is by no means an easy matter in which to assess economic loss. Clearly, the pre-existing stressors, particularly the earlier post-traumatic stress disorder and the ongoing problem with migraines, are discounting factors in this case. There would have to be times where the earlier psychological condition could be aggravated. Not only did it impact on her in a direct psychological sense there were also somatoform symptoms, although the most serious of those seemed to be the ongoing leg pain complained of back in 2002, well before the abuse. [340] The death of her uncle also needs to be taken into account as a discounting factor. It is significant in the sense that it was this that eventually caused her to cease work altogether, although, I accept she would have been functioning with considerable difficulty after the abuse until the death in February 2007. [341] It is also being submitted that I should discount because of the dysfunction within the family and the deterioration in interfamily relationships. I do not accept that there should be any substantial discounting in that regard in this case. This relates to my particular findings about DOCS having knowledge of the inability of the third party and her husband to fully appreciate the risks associated with having the foster child reside with the family. [342] It seems that the subsequent schism in the family is clearly related to the abuse. Whether or not the first plaintiff feels betrayed, or whether or not different members of the family blame others, or which way any of the plaintiffs have aligned themselves since, seems to me to all stem from the different perceptions of what happened in the first place. To put it another way, it is hard to conclude that there -- 69 of 84 -- 70 would have been this massive division within the family had there not been the abuse by the foster child of the three plaintiffs. [343] In relation to her ability to work, Dr Antoce concluded that her symptoms would affect her ability to concentrate, her memory, her motivation and energy and the general ability to obtain or sustain active employment. She considered that at best she was suited to part time employment, and even then may need some occupational assessment and assistance in securing part time employment. She considered that closure of the legal case related to the abuse would allow for some resolution and for a new focus of attention on other areas of her life.278 [344] I accept that the psychological condition caused by the subject abuse has had a significant impact on her past earnings. Her earlier positions were not particularly well paid but she was very young at that stage. It seems to me that, had she been able to continue work from when she stopped in February 2007 until now, she would have been capable of holding down a number of positions, including childcare work. Her plans, but for the abuse, were to continue working on in this field and obtaining a diploma and becoming what she described as a group leader. She is no longer interested in doing that type of work. [345] As a starting point of calculation purposes I have adopted a figure of $300.00 net per week from the end of February 2008 to date, namely $300.00 multiplied by 457 weeks, equalling $137,100.00. I accept that in the short term her earnings would have been less and in the longer term probably higher but that seems to me to be a reasonable average to adopt over such a lengthy period. [346] I accept that there were times when she did not work after the abuse and prior to ceasing work completely in February 2007 but because of the discounting factors in this case but I have not taken the allowance back beyond February 2007. [347] It is then necessary to allow for the discounting in relation to the earlier psychological condition and the migraines and the impact, particularly in the short term, of the loss of her uncle. It seems to me, in this case, that a reasonable discount to properly cater for those factors would be 30% which would bring back my allowance to $95,970.00 which I have rounded off at $95,000.00. [348] I have allowed 10% for the past loss of superannuation benefits, having regard to the fact that 8% to 9% was being allowed at the commencement of that period and as much as 12% is now being allowed. That results in an allowance of $9,500.00. [349] In relation to interest I have regard to the summary of payments from Centrelink as set out in Exhibit 2E55. This document shows that for the period up to 20 March 2013 she received $55,660.09 in Centrelink Newstart payments. [350] I presume that they stopped then because she has been living with her current partner. [351] In the circumstances I have allowed interest on the difference, namely $39,339.91 at 3.75% for 8.83 years, namely $13,026.43. (iii) Future economic loss 278 Report of Dr Antoce, pp 48-49. -- 70 of 84 -- 71 [352] Accepting what Dr Antoce has to say it would now seem that she is capable at best of part time work. I have adopted as a reasonable starting point for calculation purposes $250.00 net per week as representing the difference between the ability to perform fulltime work and part time work for someone of her experience and age. Obviously, I have allowed for the substantial increases in wages since 2007. [353] I accept, however, that it may take some time for her to put this matter behind her and to gradually get back into the workforce. As a starting point I have allowed $500.00 net per week for one year which I have rounded off at $25,000.00. [354] Thereafter I have allowed $250.00 net per week for 29 years deferred 1 year. In this case the discounting factor should be much more than the normal 15% for the additional discounting factors that I have already summarised. I have settled on a discount of 35% in this particular case. [355] My allowance for that particular period is, therefore, as follows: $250 x (822-51=771) x 0.65 = $125,287.50, which I have rounded off at $125,000.00. [356] This makes the total allowance of future economic loss $150,000.00. [357] I have allowed 12% for the future loss of superannuation benefits, namely $18,000.00. (iv) Other heads of damage [358] In relation to special damages I accept that the first plaintiff has incurred the expense as set out in the attachments to the quantum statement.279 These expenses total $12,685.30 for pharmaceutical, travelling, medical and therapist expenses. [359] Clearly there needs to be some discounting because of the problems associated with the pre-existing condition and also the possibility that the earlier PTSD could resurface. There would also need to be discounting for the impact that the loss of her uncle had on her. [360] In the circumstances, after allowing for the delay as well as those factors, I have settled on an allowance of $10,000.00 for past special damages. [361] I note that there are substantial payments from Medicare already made and that these total $7,361.35. [362] In the circumstances I have allowed interest on $2,638.65 at 3.75% for 9.75 years, equalling $964.80. [363] There should also be an allowance for future recurring expenses. She will need assistance in the short term in getting back to work, although I accept that there should be some improvement in her condition once she can put these matters behind her. 279 Exhibit 4. -- 71 of 84 -- 72 [364] Dr Antoce has also identified the need for antidepressants, counselling and other treatment into the future, and also accepts that her condition may be exacerbated from time to time when she is under stress. [365] To cater for these factors I have allowed a global amount of $15,000.00 for future recurring expenses. (v) Summary [366] In summary, I assess the first plaintiff’s damages as follows: General damages $8,600.00 Past economic loss $95,000.00 Interest on past economic loss $13,026.43 Past loss of superannuation benefits $9,500.00 Future economic loss $150,000.00 Future loss of superannuation benefits $18,000.00 Special damages $10,000.00 Interest on special damages $964.80 Future recurring expenses $15,000.00 Total $320,091.23 Quantum Second Plaintiff [367] The second plaintiff was born on 6 September 1989 and was 16 years of age at the time of the relevant abuse. She was in grade 12 at the Smithfield State High School. There is no suggestion in her case that she was suffering from any pre-existing psychological condition. [368] I have had particular regard to the two reports from Dr Antoce dated 24 August 2009280 and 15 June 2012.281 Dr Antoce also gave evidence. At the time of her first report she diagnosed the plaintiff as suffering from an adjustment disorder with mixed affective symptoms and disturbance of conduct (i.e. hazardous drinking).282 [369] In her quantum statement the second plaintiff explained that the abuse had a significant effect on her, particularly in the short term. She noted that the family was effectively being torn apart even during the period of abuse. She describes this impact in paragraph 14. [370] After the incident I accept that she became more insecure and that she did feel hopeless in her own home. She has, at different times, had flashbacks of what happened. She has also been concerned, as have her sisters, with blaming other people for what happened. [371] It was necessary for her to take time off school because of problems with constant tearfulness, bouts of anger, flashbacks and subsequent difficulties in her relationship with her then boyfriend, particularly involving sexual relations. She had also developed a hatred of aboriginal people and was having difficulty sleeping and was experiencing depressed mood and low self-esteem. I note that the school absentee records from Smithfield State High School confirm that she spent a considerable 280 Exhibit 2F.1. 281 Exhibit 2F.2. 282 Dr Antoce first report, p 8. -- 72 of 84 -- 73 period of time in May and June of 2006 away from school for what is described as “illness”.283 [372] She also went on to describe how her concentration, attention span, motivation and interests were diminished. I accept that she decided that continuing on in school was a waste of time and that she eventually finished at the end of the 2006 year.284 [373] At the time she prepared her quantum statement she was still experiencing flashbacks. She indicated that she still became very tearful and wept uncontrollably when thinking about the subject incidents.285 In paragraph 25 she states that she went from being a good student to a poor student as a result of the incidents involving the foster child. She claims that she effectively missed out on her opportunity to go to university and further her studies. [374] I have analysed her attendance records and her school reports and I have some difficulty accepting that statement. An analysis of the absentee records286 shows her unexplained absences from school were as follows: 2002 33 days 2003 37 days 2004 38 days 2005 31 days 2006 25 days There were also the substantial absences for illness in 2006. [375] There also appears to have been a deterioration in her grades over some years prior to the subject abuse. This is illustrated by comparing her mid-term report in early 2002287 with the one for early 2005.288 In summary, her grades went from predominately Bs with an occasional A to Cs with an occasional B. The regular absenteeism coupled with the gradual decrease in marks make it difficult for me to find on balance that she definitely would have been able to move on to university education but for what happened with the foster child. [376] Despite this, however, she did to her credit work prior to the subject incidents whilst still attending school. [377] Her taxation return for the year ending 30 June 2005289 confirms that she received $4,337.00 gross with tax paid of $193.00 for that year. The return for the following year290 shows that she received $1,681.00 gross for that financial year with tax paid of $21.00 namely $1,660.00 net. That work appeared to stop at about the time the abuse came to a head and when she experienced a considerable period of absence from school through illness. [378] She obviously had considerable difficulty after she left school in obtaining work. The only work she could obtain the following year was working for her father as a 283 See Exhibit 2H46. 284 Exhibit 8, Quantum Statement, Paras 19-21. 285 Exhibit 8, Quantum Statement, Para 23. 286 Exhibit 2H1.46. 287 Exhibit 2H1.12. 288 Exhibit 2H1.46. 289 Exhibit 2H2.47. 290 Exhibit 2H2.49. -- 73 of 84 -- 74 labourer and I accept, what she said in her quantum statement,291 that she was not suited to this work. She received $2,288.00 net for that year. [379] The only work she could obtain the following year was in an aboriginal gift shop. She struggled with this because of her difficulties associated with her acceptance of aboriginal people following the abuse by the foster child. It was not surprising she eventually had to move on from that type of work. [380] When Dr Antoce provided her second report she had seen all of the relevant medical records and reports in relation to the attendances by the second plaintiff post abuse. [381] She was still tearful when required to recount events with the foster child and was also tearful when asked about the loss of her uncle. She also described the difficulties with the interpersonal relationships within the family, particularly the relationship between her mother and grandmother. [382] On this occasion she maintained she wasn’t drinking as heavily as she had when she saw Dr Antoce the first time. In the earlier report she had complained of resorting to alcohol after what happened to her. [383] It was also interesting to note that she was in a permanent relationship with her boyfriend Nick, and I understand from the evidence that this relationship still continues.292 [384] Some of the contemporaneous reports summarised in the second report of Dr Antoce illustrate the difficulties she had particularly in the first few years after the accident. As late as the thirteenth of May 2009 she was avoiding any potential contact with the foster child.293 She attended upon a Dr Julia Driscoll on 2 March 2007 who noticed that she was resorting to alcohol as a result of what happened to her and was also becoming promiscuous. On presentation she was withdrawn with a teary affect.294 [385] A Kelly Harris, a psychologist, in a report dated 25 May 2007 confirms that she was placed under a mental health care plan and had at that stage completed six sessions. In her second report Dr Antoce said: corroborating all data provided it is my opinion that (the second plaintiff) presents with mild affective symptoms such as specific anxiety, efforts to avoid discussion of the sexual abuse, feelings of shame, avoidance of discussion about her uncles suicide, impaired self-esteem and somatising tendencies alexithymia and excessive avoidant personality traits. These symptoms seem related to the experience of sexual abuse at the hands of the foster brother and to additional family stressors and traumatic grief following the loss of her uncle through suicide. In my opinion her current presentation does not fulfil diagnostic criteria for a DSM IV disorder.295 291 Exhibit 8, paragraph 27. 292 Transcript T 3-46, L 1-10. 293 See notes of Deborah Kapelis as summarised in the second Antoce report, page 8. 294 See notes as summarised in the second Antoce report, page 9 295 Second report Dr Antoce, pages 10-11. -- 74 of 84 -- 75 [386] She did not, however, change her existing PIRS assessment of 1% as she still considered that that was justified because of what she described as mild to moderate impairments in the areas of adaption and social functioning.296 (i) General Damages [387] General damages have to be assessed in accordance with the PIRS assessment. I assess the ISV as 1 which justifies an allowance for general damages of $1,000.00. This is a lot less than what the assessment would be if it was done in accordance with common law principles but that is no longer the case. (ii) Economic Loss [388] I have already explained why the second plaintiff would have difficulty proving that she lost her opportunity to undertake university education because of the abuse. Nonetheless, she displayed a clear capacity for work prior to the subject abuse. It is to her credit that she worked as she did during her year 10, year 11 and year 12 school years. This illustrates that she was the type of person who was prepared to work and I have no difficulty in finding that she would have gone into the workforce at the end of grade 12. [389] She could only obtain work with her father in the following year and this was when her symptoms would have been the most severe. Even after that when she did find work at the aboriginal organisation she was unable to continue on with that because of her ongoing association with aboriginal people and the way that reminded her of what had happened to her. [390] There was considerable disruption in the short term after the abuse. She ceased the part time work immediately. She spent a considerable period away from school through illness. [391] Her problems with alcohol abuse, her difficulties with interpersonal relationships, her loss of self-esteem and her inability to concentrate were all particularly relevant and I accept what Dr Antoce had to say about the connection between these problems and what happened to her. [392] She was 17 when she left school and this was a particularly important time for her in her work career. With the attitude which she had displayed by doing the part time work whilst still at school I believe that she clearly would have been able to obtain full-time employment at least in shop assistant type work, if not better paid work. [393] This would have been the ideal time for her to set up a good and consistent work history which would have helped her obtain employment later on. [394] This therefore can have an ongoing effect because of the absences from employment and the impact that would obviously have on any potential employer. [395] Her situation was much more settled by the time of trial. She was hopeful of obtaining qualifications in workplace health and safety. She was involved in what seemed to be a fairly stable relationship with her partner which has now lasted for many years. She is settled to the point where there would only be any limited 296 Second report Dr Antoce, page 11. -- 75 of 84 -- 76 interference with her work into the future. It now seems likely that she will be able to work into the future. She did miss work at a very critical time and this could well impact on her overall career path. [396] In her case I have decided to allow a global component for economic loss. This compensates her for that time that she did miss out on work from 2006 onwards and also for the impact that absence from work has had on her career long term. I allow a global component of $60,000.00. I have not allowed any further component for the future. [397] Because of the time involved I have allowed 10% for the loss of superannuation namely $6,000.00. [398] In relation to interest I note that she has received periodic payments from Centrelink totalling $10,185.00 as per the statement received from Centrelink.297 I have therefore allowed interest on the difference, namely $49,815.00 at 3.75% for 9.5 years, namely $17,746.60. (iii) Other Heads of Damage [399] There is a claim for special damage particularised in the Quantum Statement. There should be very slight discounting to this claim because some of her problems did relate to the loss of her uncle, although it did not have the same impact on her as it did the first plaintiff. [400] In the circumstances I have rounded off the allowance claimed at $3,500.00 inclusive of interest. [401] There should be some very modest component for the future. She has, in the main, got on with her life and it may well be that she will not need any further treatment. She may however, at times, experience stressors that remind her of what happened to her which may necessitate counselling and/or medication although it seems to me that the likelihood of that is relatively slight. To cater for that possibility I allow the sum of $2,500.00 for future recurring expenses. (iv) Summary [402] In summary I assess her damages as follows: General damages $1,000.00 Economic loss $60,000.00 Loss of superannuation benefits $6,000.00 Interest on economic loss $17,746.60 Special damages, including interest $3,500.00 Future recurring expenses $2,500.00 Total $90,746.60 Quantum Third Plaintiff [403] The third plaintiff was born on the 21 April 1992 and had turned 14 shortly prior to the incident involving the foster child. She was in grade 9 at the Smithfield State High school at the time. 297 Exhibit 2.H3.66. -- 76 of 84 -- 77 [404] She relies on two reports from Dr Antoce dated the 24 August 2009 and the 15 June 2012. The defendant relies on two reports of Dr Varghese dated the 12 July 2010 and the 4 March 2013. She has also attended upon a number of health professionals for psychological problems since the incident in May 2006, and these various attendances are summarised in the reports from both Dr Antoce and Dr Varghese. Both Dr Antoce and Dr Varghese gave evidence in these proceedings. [405] On any reading of the reports she has experienced considerable difficulties since the incident in May 2006 which, on the face of it, was relatively short. This is different to the situation involving both of her older sisters where there was repeated offending over a period of time ending in May 2006. [406] Dr Antoce in her first report diagnosed the third plaintiff as suffering from an adjustment disorder with mixed anxiety and depressed mood with elements of post- traumatic stress disorder and traumatic grief.298 When she first saw Dr Antoce on the 6 August 2009 she was tearful on presentation when talking about what had happened with the foster child. She described how she had started seeing psychologists about two years after the incident and about how see had difficulties with flash backs about what had happened. She was also scared of any contact with the foster child and/or his friends and tried to avoid places where they attended. [407] She described difficultly coping with people generally and, in particular, she described her anger and upset at what happened to her. She felt betrayed by the foster child whom she had regarded like a brother. [408] She described a lack of concentration and a lack of motivation and how she was doing very little and remaining at home on her own. Dr Antoce noted that she clearly was depressed. [409] She saw Dr Varghese on the 7 May 2010 for the purposes of his first report.299 She appeared to be a reluctant participant in that interview and Dr Varghese described her as only just co-operative.300 Dr Varghese concluded that she had developed a depressive illness namely a major depressive sometime during year 9 and year 10 of her education. He considered that this was in remission at the time he saw her and that she was then suffering from a chronic dysthymic disorder. He said that that mood disorder occurred in the context of what appeared to be significant personality vulnerability and an avoidant dependant type personality. At the same time he was cautious about making any statement regarding personality in someone who was, in effect, only 14 years of age. He said that this mood disorder suggested insecure attachments, anxiety proneness and avoidance and chronic low self-esteem. He noted that her grandmother appeared to be her only secure attachment figure at that stage. [410] He described the cause of those psychiatric difficulties as multiple factorial. He said that some was constitutional pre-dispostion to a mood/anxiety disorder. He said that it was unlikely the depressive illness and her then current psycho social dysfunction were as a result of the subject incident alone. He accepted that the incident would have been distressing to a young person of her age but it was not the type of incident that would lead to long term decompensation without other factors 298 Exhibit 2.I.1. 299 Exhibit 2.I.2. 300 Exhibit 2.I.2 p 4. -- 77 of 84 -- 78 present. He then noted that a significant issue appeared to be the family dynamics in particular her relationship with her mother.301 [411] Like Dr Antoce before him he also noted that the death of her uncle in 2007 had a significant effect upon her. [412] Dr Varghese then provided a PIRS assessment of 13% as to her then overall condition. He did not consider that all of that related to the subject incident. [413] The third plaintiff saw Dr Antoce again on the 15 June 2012. On this occasion she provided a PIRS rating of 15% whole person impairment. She noted that the third plaintiff had seen a number of psychologists over the years with only minimal benefits and also that she had been trialled on a number of anti-depressant medications. [414] Her prognosis at that stage was very guarded and depended very much on satisfactory closure of the legal case and successful engagement with the course of study and gradual separation and increased control over her life and choices. She noted that she would continue to have long term residual impairments in her trust of males and relationships, impaired self-esteem and avoidance of social contact, low grade depressive symptoms and anxiety symptoms that would affect her leisure activities and potentially her occupational function for variable periods of time.302 [415] Dr Varghese saw her for the second time in December 2012. He confirmed his earlier PRIS assessment and confirmed that he believed that 25% of the overall condition was related to the subject incident and its secondary sequelae. [416] He explained that further by saying that the only condition that he diagnosed which was attributable to the subject incident was major depression and that she had had a number of episodes of that. He said that what he diagnosed as a personality disorder was unrelated to the subject incident. He went on to say that the pre- existing condition was predominantly a personality vulnerability which then could be called a personality disorder.303 [417] Dr Antoce explained in evidence that a personality disorder cannot be diagnosed before the age of 18. She conceded that the third plaintiff may have had personality traits and vulnerabilities prior to the subject incident she was not however prepared to make such an diagnosis unless she had sufficient data as she said “on a longitudinal line in a person’s life and that it was enduring leading to presently disturbed behaviours.”304 [418] The main area of difference between the two doctors called related to the relevance of what Dr Varghese described as her family dynamics, particularly her relationship with her mother. [419] I have already touched on how the family effectively tore itself apart after all of this. Even as at the date of trial the third plaintiff had no relationship whatsoever with her mother and father. She had a limited relationship with the second plaintiff and, at that stage, was living with the first plaintiff and her partner. 301 Exhibit 2.I.2 p 5-6. 302 Exhibit 2.I.3 p 20 303 Exhibit 2.I.4 p 9. 304 T4 – 71 ll 29 to 45 and T4 – 72 ll 10 to 20. -- 78 of 84 -- 79 [420] She was obviously closer to her grandmother and had spent quite a considerable period of time before that living with her grandmother in Ingham. [421] There is no doubt that she has displayed anger towards her own mother towards what happened although I have already dealt with the relevance of that in my findings in terms of the knowledge on the part of relevant officers of DOCS about the third party and her husband’s inability to acknowledge the relevant risks. [422] Considerable time was spent on trial on this issue and Dr Antoce was cross- examined at some length on that point. [423] She was questioned about Dr Varghese’s opinion that this incident, in isolation, would have been unlikely to cause psychological injury with such significant symptoms. She said: In isolation, meaning to a person who wouldn’t have two other sisters in the same house or in isolation in respect to the age of the person or – I’m not sure. How can we isolate it?305 [424] She was questioned further about Dr Varghese’s assessment of 25% apportionment and she said: I find – I find the whole formation of this puzzling, because the consequences for the family arise from the subject incident. So it’s very hard to separate the two. It’s a bit artificial to separate the two. So I’m – I’m not sure I can answer this question.306 [425] In the circumstances I accept the opinion of Dr Antoce in that regard in preference to those of Dr Varghese. I would agree that it is artificial in this case to make that distinction. That is particularly so when the defendant was suggesting that much of her reaction to what happened stemmed from finding out what happened to her two sisters. In this case the breach of duty of care that has been found to be established is in relation to all three of them and it would be artificial to try and isolate the cases one by one and then try and theoretically establish what would or could have happened in the absence of knowledge of the other incidents. [426] I therefore accept that the incident and its aftermath has been the substantial cause of her ongoing condition. This is against a background where Dr Antoce concedes that she was vulnerable to psychological injury because of the earlier personality traits and against the background where the death of her uncle clearly had some impact. [427] It is of concern that the third plaintiff has hardly worked at all since. She has been receiving the disability pension for a depressive type illness since 2012 and her position has now become chronic. (i) General Damages [428] As I have accepted Dr Antoce’s evidence, I accept her assessment of a 15% PIRS rating which would being the matter within item 11 on the relevant scale for serious mental disorder. 305 T4-69 L1-5. 306 T4-79 L1-5. -- 79 of 84 -- 80 [429] Having regard to that range I allow an ISV of 20 which equates to an allowance of general damages of $26,000.00. (ii) Past Economic Loss [430] There would need to be a substantial allowance in this case although it is difficult to quantify. In evidence the third plaintiff said that she always wanted to be a lawyer and said that she lost that opportunity because of what happened to her. [431] Her school grades in the years leading up to the incident and her school attendances were discussed at some length during the course of the trial. [432] It is generally accepted that there was a fairly high rate of absenteeism and that she had been averaging about 1 day per week away from school. [433] It is not necessary to analyse all of her reports but they do show mixed results over a period of years. I have considered various reports from grades 6 and 7 at the Trinity Bay State School and grade 8 at the Smithfield State High School. [434] Certainly her effort towards the end of primary school was commented on positively and, in terms of her achievement, the best evidence that I have relates to the literacy and numeracy tests that were conducted in 2004 when she was in grade 7.307 [435] The literacy ratings were divided into three categories. She was assessed as in the average range for reading and viewing and slightly less than average for writing and spelling. Similarly the numeracy range was divided into three categories and she was assessed as on average for overall numeracy and for numbers but less than average on measurement and data. The explanatory notes show that the average referred to was the average result for students in Queensland at that year level at the time. [436] In 2005 her reports varied considerably from subject to subject. In some she was commended for her work and achievement and in others effectively criticised for her lack of effort. In the main, her marks appeared to vary between B and C but there were some subjects where she did not return her assignments and therefore did not get an assessment. [437] Whilst she may have considered a career in law it may have been difficult for her to achieve the necessary grades for entry from what I read of those results although I accept people’s attitude to study can vary considerably from time to time. I have made allowance for her loss of that opportunity in my assessment for future economic loss [438] After the incident she continued on at school on and off until midway through 2007. Towards the end she was doing some home schooling. She did not complete her secondary education beyond that although she has done some courses since. As set out in paragraph 18 of her quantum statement,308 she had some brief work experience in a retail position and also at a picture theatre but she could not cope being around people, particularly when Aboriginal people came in. 307 Exhibit 2.K1.12. 308 Exhibit 13. -- 80 of 84 -- 81 [439] Her condition has been so chronic for so long that it is highly unlikely that she would have been able to undertake any other work until now. [440] I accept that she would have gone on with her studies probably until the end of grade 12 had it not been for the incident. That would have taken her up to the end of 2009. [441] It seems reasonable to allow as a starting point $400.00 net per week from then to reflect her average earnings in positions such as a shop assistant or other such paying work. [442] $400.00 net per week for 309 weeks results in a calculation of $123,600.00. [443] I believe that there should be some discounting because of the vulnerability conceded by Dr Antoce in evidence and also in her second report and I have discounted that amount by 15% and rounded off the allowance at $105,000.00. [444] I have allowed 11% in her case for the past loss of superannuation benefits namely $11,550.00. [445] In relation to interest I have had regard to the statement from Centrelink as at 14 August 2013.309 This showed total payments up to 14 August 2003 as $47,508.00. She has continued to receive the disability pension since 14 August 2003. Doing some rough calculations I have adopted a further $250.00 per week from that period onwards, namely $250.00 x 121 weeks, namely $30,250.00. In the circumstances I have rounded off the amount that does not attract interest as $77,750.00 and I have allowed interest on the difference $27,250.00 at 3.75% for 6 years, namely $6,131.25. (iii) Future Economic Loss [446] The real difficulty for her stems from the fact that she hasn’t worked now for over 7 years and even then her work history was very brief. I have accepted Dr Antoce’s opinion but Dr Antoce is certainly not of the view that she will never work again. In her first report310 she says: It is hard to comment on [the third plaintiff] will fare for the future. This depends on the success of early treatment interventions at this stage. It also depends on availability of other supports and improvements in her family dynamic. [The third plaintiff] indicated that she is interested in attending a TAFE course in administration and she just wants to move on with her life. She is likely to be able to complete further study and engage with successful occupational function. It is likely that he sense of self and personal function will be more affected than her occupational function. [447] In her second report311 she said: In my opinion the prognosis is of guarded optimism and it depends very much on an early and satisfactory closure of the legal case, successful engagement with a course of study and gradual separation individuation with increased control over her life and 309 Exhibit 2K3.29 310 Exhibit 2I1. 311 Exhibit 2I3. -- 81 of 84 -- 82 choices. [The third plaintiff] is likely to have a long term residual impairment in her trust in males and relationships, impaired self-esteem and avoidance of social contact, low grade depressive symptoms and anxiety symptoms that will affect her leisure activities and potentially her occupational function for variable periods of time.312 [448] Further on she said: [The third plaintiff] has not been able to secure any employment since the time of the incident. She is likely to take some time before she will obtain active employment, however on the positive side she is enrolled with a course of study and plans to do a bachelor of communications course online and to start writing.313 [449] Further on she said: The ability to work has been affected by symptoms of anxiety and depression and by a general withdraw from interaction.314 [450] She also said: [The third plaintiff] is likely to experience some relief when the case is closed and hopefully this will allow a return to some enjoyment of occupational and leisure activities.315 [451] In that same report she spoke of a need for psychotherapy. That may well not have been done at that stage but it seems that it would be of some assistance once these proceedings are concluded. Clearly, the condition will have a significant impact on her earning capacity into the future. What I am prepared to allow is a substantial amount for short term psychotherapy once this matter is resolved and to allow her a substantial amount for her loss of income in the short term followed by a further global allowance for the period after that. [452] It would be unrealistic to expect her to return to the workforce immediately. At the outset I have allowed her $500.00 net per week for two years namely, $500.00 x 99.4316 $49,700.00 which I have rounded off at $50,000.00. This would allow her sufficient time to undergo the relevant psychotherapy and also allow her sufficient time to undertake any further courses with a view to reenterring the workforce. [453] Thereafter there should be a further substantial global allowance to cater for the possibility that she may never get back into the workforce and, also, for the loss of chance of not being able to pursue her chosen career. I assess that as a relatively slight chance and I have also allowed for the fact that she is still young enough to study and may well be able to do so after these matters are concluded. [454] These are notoriously difficult to assess but I have eventually settled on a figure of $120,000.00. By way of analogy that represents roughly $200.00 net per week for 35 years deferred 2 years on the 5% tables with a discount of 25% for contingencies. 25% would be appropriate because of the pre-existing vulnerabilities and the fact that she may have succumbed to difficulties from time to time with depressive illness. 312 Second report of Dr Antoce, page 20. 313 Second report of Dr Antoce, page 20. 314 Second report of Dr Antoce, page 20. 315 Second report of Dr Antoce, page 21. 316 Exhibit 1H1. -- 82 of 84 -- 83 [455] That makes the overall allowance for future economic loss $170,000.00. I have allowed 12% for the future loss of superannuation benefits, namely $21,000.00. (iv) Other Heads of Damage [456] I have allowed the special damages as particularised in the Quantum Statement. The bulk of those items claimed ($14,735.70) constitute the charge to Medicare as per the statement exhibited to her Quantum Statement. [457] The balance relate to pharmaceutical, travel and therapist expenses. My allowance is therefore $15,945.90. I have allowed interest on $1,200.00 at 3.75% for 9.5 years namely, $427.50. [458] There would have to be a very substantial allowance for the future to assist her particularly with the psychotherapy in the short term. This was canvassed with Dr Varghese in evidence and he agreed it was quite expensive. He spoke of $300.00 per consultation with as many as one per week for some time.317 [459] In the circumstances it would not be unreasonable to allow $30,000.00 for future recurring expenses. This would allow for psychotherapy for up to 2 years and also for any associated consultations and medication I would include some global component for any ongoing needs into the future. (v) Summary [460] In summary, I assess the third plaintiff’s damages as follows: General damages $26,000.00 Past economic loss $105,000.00 Past loss of superannuation benefits $11,550.00 Interest on past economic loss $6,131.25 Future economic loss $170,000.00 Future loss of superannuation benefits $21,000.00 Special damages $15,949.90 Interest on special damages $427.50 Future recurring expenses $30,000.00 Total $386,058.65 ORDERS [461] I make the following orders: (1) I give judgment for the first plaintiff against the defendant in the sum of $320,091.23. (2) I give judgment for the second plaintiff against the defendant in the sum of $90,746.60. (3) I give judgment for the third plaintiff against the defendant in the sum of $386,058.65. (4) The defendant’s claim against the third party is dismissed. 317 T7-16 to T7-18. -- 83 of 84 -- 84 [462] I will hear the parties on costs. -- 84 of 84 --