Australian Journal of Human Rights
The plaintiff, Joy Williams, is an Aboriginal woman born on 13 September 1942. Her mother, Dora Williams, was removed from her family, became a ward of the Aborigines Welfare Board (AWB) and grew up at Cootamundra Girls’ Home. When Dora was approximately 15 years old, she began working as a domestic for a white family in Sydney. She became pregnant and gave birth to Joy when she was 18 years old. At four weeks old, Joy was placed in the Bomaderry Home for Aboriginal Children. Bomaderry was run by the United Aborigines Mission but was overseen by the AWB. Joy remained there until she was about four and a half years old when, in 1947, she was transferred to Lutanda Children’s Home, a home primarily for white children. Her application for transfer to Lutanda stated, as the reason for admission, ‘to take the child from association of Aborigines as she is a fair skinned child.’ Joy lived at this home until 30 July 1960, when she left to take up employment as a housemaid.
The plaintiff alleged that, at Lutanda, she was inadequately cared for and was treated more harshly than the other children. Joy claimed that she did not know she was Aboriginal until she ran away from the home at about 13 years of age. Upon returning to the home, she was told ‘[you have] mud in your veins’. The plaintiff alleged that during her time at Lutanda she began to exhibit disturbed behaviour, fought regularly with other children, was unable to participate in group play, was attention seeking, and engaged in acts of self mutilation. Having received no psychological assistance during her childhood, Joy left Lutanda and spent long periods in psychiatric institutions, became involved in criminal activity, substance abuse and spent some time in gaol. Joy alleged that her difficulties in rearing her three children was caused by her own lack of parenting which had impaired her ability to parent, and to form relationships. She was diagnosed with the severe psychiatric disorder, borderline personality.
The plaintiff’s case was that her behaviour was sufficiently difficult and unusual that, had the AWB been making regular visits to Lutanda, they would have been informed of it and would have referred Joy to one of a number of Child Guidance Clinics (CGC). CGC were then available to treat disturbed and/or difficult children and employed social workers and psychiatrists who worked with children and their families. The Plaintiff alleged that her inadequate care at Bomaderry led to her development of an attachment disorder, a psychiatric condition arising out of the absence of a parental figure with whom the child develops a primary relationship. A pre-eminent British psychologist at the time, Dr Bowlby, had been commissioned by the World Health Organisation (WHO) to look into the mother-infant bonding process, and had documented the development of this disorder in children who did not have a parental figure. The Plaintiff alleged that, had she been referred to a CGC, her psychiatric disorder would have been reversed and she would have been able to live a normal life. However, during her years of living at Lutanda, the Plaintiff received no visits, letters or supervision of any kind from by the AWB.
In proceedings before the Supreme Court, the plaintiff alleged that she was a ward under the Aborigines Protection Act 1909 (NSW) (the Act). At all material times, the AWB was under the duty contained in s 7(1)(c), ‘to provide for the custody and maintenance of the children of aborigines’. ‘Custody’ in s 7(1)(c) has been defined broadly to refer to ‘control and the preservation and care of the child’s person, physically, mentally and morally’. The Plaintiff submitted that guardians owed duties to wards and that guardianship should be treated as a delegated trust for the benefit of the infant. The circumstances of the case imposed fiduciary duties on the guardian, including a duty to protect the child and guard her or him from harm. The Plaintiff submitted that the standard for fulfilment of that duty required the AWB, at all times, to take reasonable steps to apprise itself of the state of the Plaintiff’s physical and mental well-being.
The Plaintiff argued that a duty of care arose when the AWB became aware of the conditions at Bomaderry and that the Plaintiff had been at Bomaderry under those conditions. The AWB knew that the express purpose of the transfer was to remove the Plaintiff ‘from association of aborigines’, which presumably included the Plaintiff’s mother and since the AWB was actively involved in the transfer of the Plaintiff to the Lutanda Home, it was therefore in a relationship of proximity to the Plaintiff. . The state of knowledge as to the risks of psychiatric harm to children in the Plaintiff’s position, including the publication of Bowlby’s work on attachment disorder was such that the AWB ought to have been aware of the risk. Thus, it was argued that the AWB was under a duty to exercise reasonable care to protect the Plaintiff from the foreseeable risk of mental injury brought about by the conditions in which she was reared from 1942 onwards. The duty included the requirement that the AWB satisfy itself as to the Plaintiff’s progress and development and the vulnerability of the Plaintiff means that this duty was non-delegable.
The Plaintiff submitted first, that the AWB had taken control of the Plaintiff without legal justification and thus committed trespass on the Plaintiff; and second, in relation to the duty of care, that the AWB had a duty to:
The breach principally relied on by the Plaintiff was the AWB’s failure to inform the carers at Lutanda of the relevant facts of which it was aware. Once the Plaintiff had been admitted to Lutanda, the only evidence of the AWB’s involvement with her was when Dora Williams wrote a letter to Inspector English, the AWB inspector, asking for information of the whereabouts of her daughter. Inspector English responded to the letter but did not provide information on Joy. At trial, there was no evidence of the AWB having any contact with the Plaintiff at Lutanda.
The Plaintiff claimed that the AWB’s lack of involvement in her welfare and its failure to refer her to a CGC lead to her developing borderline personality disorder. Dr Katz, a child psychiatrist, and Marjorie Bull, a social worker – both of whom had worked in CGCs – gave evidence of what help the Plaintiff could have received had she been referred to a CGC. The Plaintiff claimed economic loss, general damages and exemplary or aggravated damages.
Abadee J found that the AWB owed no duty of care, such that no breach of duty or causation could be established. Therefore, the Plaintiff’s action in negligence failed. He also found that no trespass was established and no action for breach of statutory duty was available. Assuming a fiduciary relationship (not decided), there was no breach of fiduciary duty. In any event, had a fiduciary duty or breach of fiduciary duty been established there would have been a basis for denying equitable compensation by reason of laches, prejudice or delay. Any assessment of damages or equitable compensation was highly speculative, however, a ‘contingent’ assessment of damages was appropriate in the circumstances. There was no entitlement to exemplary of aggravatory damages in any contingent assessment.
Abadee J found that Dora Williams had authorised the AWB to take control of Joy between the time of her birth on 13 September 1942 and the child’s transfer to Bomaderry. He found, therefore, that the Plaintiff became a ward of the AWB following her birth and that her placement at Bomaderry was lawful, being at the request of her mother. He found that Bomaderry was run in a ‘loving, devoted, charitable, religious way by the staff’. Abadee J also found that the Plaintiff’s ‘legal guardian’ was at all times her mother, and that the Plaintiff’s transfer to Lutanda was with the consent of her mother and in accordance with the AWB’s statutory duty. Further, the transfer was in the Plaintiff’s interest according to the assimilation policy of the time and had only a ‘collateral purpose of relieving pressure on accommodation’ at Bombaderry. Abadee J accepted the Plaintiff’s evidence that she was visited by her mother at Bomaderry, despite rejecting all her other evidence, and found that there was a ‘particular bond of affection between the Plaintiff and Sister Saville at Bomaderry’, thus strengthening his finding that the Plaintiff did not have an attachment disorder while at Bomaderry. Rejecting the evidence of Dr Katz and Mrs Bull, who testified that the Plaintiff was disturbed, Abadee J found that the Plaintiff was not a problem child in any respects and did not display any indication of a manifestation of any psychiatric or emotional disorder at Bomaderry.
Abadee J discussed the occurrence and nature of borderline personality disorder. He noted that institutional care is not identified as a relevant causal factor in the 2 per cent of the population who suffer from the disorder. Abadee J found that ‘the important point is that the alleged diagnosis is not one dependant on a child being brought up in an institution’.
Abadee J set the scene of 1940s Australia. He referred to World War II, the White Australia Policy and racial prejudice against Aborigines existing at that time. He made reference to these factors to make clear that his decision was made according to the standards of the time, and not according to those of the 1990s. Further, he noted that the passing of time had affected the carriage of the case as witnesses had died and records had been lost or not recoverable.
Abadee J ultimately refused to impose a duty of care in circumstances where no such duty would exist between a natural parent and a child and where a third party carer has taken responsibility for a child because the natural parent was unwilling or unable to do so. Additionally, he stated ‘it is difficult to see how the law can always be expected to provide the solution to all problems arising from life itself, from nature or nurture’.
Abadee J found that the Plaintiff was still a ward of the AWB at the time of transfer to Lutanda and had not been discharged into the care of her mother. He reached this conclusion by looking at the content of the admission form, from what was known about the home at Bomaderry, and from the minimal nature of Dora William’s involvement in the Plaintiff’s life and her lack of desire to have her daughter restored to her.
Abadee J commented that Dora was not physically or financially capable of visiting her child between 1947 and 1956. He noted that, when Dora asked permission to see her daughter, it is unclear whether she ‘had forgotten that she had consented to the child going to Lutanda or whether she believed any visit to her wherever she was required the Board’s permission’. Abadee J did not impute bad motives from Inspector English’s failure to refer to Dora’s request to see her daughter in his letter of response.
Justice Abadee inferred that Lutanda was a ‘home’ under s 28 of the Child Welfare Act 1939 (NSW) and was licensed as such a place from 1947 onwards. This meant that a child did not have to be a ward to be placed at Lutanda. He found that the carers attended to the children with ‘charity, trust, devotion, care and within constraints, with appropriate discipline (measured by the standard of the day), kindness and affection’.
Abadee J rejected the Plaintiff’s submission that the distortions contained in her evidence result from her attachment disorder and her young age at the time at which the described events occurred. He finds that ‘there was no such disorder of attachment’ and that the distortions in the affidavit reflect deleteriously on the reliability and credibility of the Plaintiff’s evidence generally. This finding undermined the value of the evidence given by the medico-legal experts on the Plaintiff’s behalf because these witnesses based their testimony on the Plaintiff’s recollection of events. Certain aspects of the Plaintiff’s evidence were withdrawn, in particular, her allegations of sexual abuse, because the Plaintiff was unable to satisfy the onus of proof and because expert evidence suggested that the Plaintiff’s disorder had distorted her vision of reality.
The Plaintiff relied on her evidence to demonstrate the attachment disorder, which developed into borderline personality disorder. This evidence was explicitly rejected, as were allegations of the use of corporal punishment on the Plaintiff.
Abadee J rejected any assertion of a lack of quality care provided by the two matrons working at Lutanda during the period the Plaintiff resided there. The ‘cruel and uncaring’ vision of Lutanda presented by the Plaintiff and supported by the Plaintiff’s witnesses, Ms Christie and Mr Sattler, was contrasted with the evidence of the Defendants’ witnesses who had also spent time at Lutanda. They testified to happier memories of a kind and caring place. Abadee J preferred the evidence of the latter witnesses, whose testimony he considered to be ‘generally credible and reliable’.
The Plaintiff argued that, due to her attachment disorder, her behaviour at Lutanda was constantly troublesome and disturbed. Her case was that this should have been noticed by the AWB and a referral made to a Child Guidance Clinic. Abadee J accepted the evidence of Mrs Buxton, Mrs Middleton and Miss Moorhouse, qualified nurses, who did not consider that the Plaintiff’s behaviour or conduct was such as to warrant third party intervention. The trial judge rejected the evidence of Mr Sattler that the Plaintiff was a troublesome child because Mr Sattler also gave incorrect evidence that Joy came from a private home at the age of six. He rejected the Plaintiff’s submission that ‘the staff were prejudiced by religious beliefs into preferring pseudo solutions over medical assistance’. Reference was also made to AWB reports on Bomaderry, in which no mention is made of any troublesome child. Abadee J was made more confident in his view that the Plaintiff was not troublesome by the act of transfer itself.
Abadee J accepted the evidence of five witnesses, who stated that there was no racial discrimination in Lutanda’s policy of accepting or looking after children. He also accepted the evidence of a number of Defendants’ witnesses that the background of children at Lutanda was generally not discussed, although some of the workers did know of the Plaintiff’s Aboriginality. He concluded that the Plaintiff was not treated differently from the other children because of her Aboriginality or for any other reason. The contrary evidence, provided by Ms Christie, was rejected because she had engaged in a process of self-exploration, which made her evidence susceptible to revisionism. He further inferred that if knowledge of the Plaintiff’s mother was kept from the Plaintiff, this was done with the best motives according to the standards of the time.
Also rejected by the trial judge, was the Plaintiff’s evidence that she was called by number, and that she was taught to look down upon Aborigines. In this regard, Abadee J rejected the evidence of Ms Collier and Ms Levy, the two student law clerks employed by the Plaintiff’s solicitors, who gave evidence of a conversation with Mrs Middleton in which Mrs Middleton made disparaging remarks about Aborigines. The trial judge preferred Mrs Middleton’s evidence because the record of the interview was perhaps ‘somewhat amateurish’ and he found her to be reliable and credible. He accepted the evidence of various Defendant’s witnesses that visitors were encouraged and also that the Plaintiff had few if any visitors.
Justice Abadee was satisfied that the Plaintiff received favourable care and that the ‘risk of potential maternal deprivation could not reasonably or practicably be guarded against or that any risk could with the exercise of reasonable care be eliminated’. This was due to the evidence of Dr Waters that no guarantee can be made that an attachment disorder will not occur even with a maternal figure.
After weighing up the evidence of the various Defendants’ witnesses with the evidence of the Plaintiff, the trial judge rejected all allegations of abuse. Abadee J found that she was never given morphine nor made to stand with her hands above her head for 4-5 hours. He rejected that she was made to stand naked for wearing lipstick, or that she cut her arms.
Justice Abadee’s decision contains a discussion of the role of expert evidence in trials and places emphasis on the fact that the evidence of experts is reliant on the facts on which it is based. This is problematic because many of the facts on which the experts relied were not proved by the Plaintiff since the Plaintiff was found to be an unreliable witness. Further, the trial judge referred to the passage of time on which evidence was given, beginning 57 years ago and finishing some 39 years ago. Consequently, the trial judge preferred the evidence of the lay witnesses because they were contemporaneous witnesses.
The trial judge went on to discuss the evidence of Dr Cooley in detail. He quoted the report she had written in 1960 in full and referred to the fact that no history of physical or sexual abuse was given at that time by the Plaintiff, nor any diagnosis of any psychiatric disorder made by Dr Cooley, who was accepted as a child psychiatrist with a great deal of experience. The evidence of Dr Waters was dismissed, largely because the factual bases of the evidence were unreliable and unfounded, but also because Dr Waters does not refer to the Plaintiff’s involvement in cult activity, substance abuse and criminal activity. Where Dr Cooley does not diagnose the Plaintiff as having any psychiatric disorder for the same period in which Dr Waters does diagnose her as having a disorder consistent with Borderline Personality Disorder, Abadee J prefers the evidence of Dr Cooley. He rejects the evidence of Dr Katz as being based on limited information and false assumptions about the Plaintiff’s behaviour, preferring the evidence of the other witnesses who were at Lutanda at the same time as the Plaintiff. Abadee J does not accept Dr Katz’s evidence about the state of knowledge in the 1940s, the doctor’s suggestion that there was any real or reasonable alternative to placing the Plaintiff at Bomaderry, and the suggestion that there were any childhood manifestations of the disorder at an early age (or at all), and that Bomaderry contributed to the disorder. He finds ‘Dr Katz’s views generally unhelpful’.
Abadee J referred to the language of the Act, which states that the duty is to provide for the custody and maintenance of a ward and does not include education. He was convinced that no right of action is conferred having reference to the nature, scope and terms of the Act. The nature of the fiduciary duty in any circumstances must be moulded according to the nature of the relationship and the facts of the case. Abadee J referred specifically to the nature of the Act in contrast to the Child Welfare Act 1939 (NSW), and found that the duty to control does not equate with guardianship.
The trial judge distinguished a number of cases relating to common law negligence and fiduciary duty from the circumstances of the present case, concluding that:
[a]ny extension of the law to protect other than economic interests had to be justified in principle with regard to the particular interest protected by equitable doctrines. In my view no such principles exists to warrant extension into a case such as the present.
He found that there was no breach of any fiduciary duty if such a duty existed. Further, he found that the delay was substantial and that equitable relief should be delayed.
The trial judge looked at the duty of care in this case as being novel and a different category of duty of care. He imposed the following test: ‘were the damages reasonably foreseeable, was the relationship between the Plaintiff and Defendant sufficiently proximate, is it just and reasonable to impose a duty of care?’ Because there is no duty of care between a child and his or her parent, any body responsible for a child should not have a duty where there is no action between a child and his or her parents.
Abadee J referred to the decision in Barrett v Enfield London Borough Council and stated that the question of whether it is just and reasonable ‘to impose a liability in negligence...is to be decided on the basis of what is proved at a trial’. He considered that Barrett and Prince v Attorney General were persuasive on the question of whether or not there is a duty because of their open discussions of policy considerations in determining the duty question. He determined that imposing a duty may have the effect of reducing the availability of services to children whose parents are unwilling or unable to bring up their children themselves.
Earlier this year, Joy William appealed to the NSW Court of Appeal on the grounds that the conditions to which she was subject at Bomaderry subjected her to a risk of attachment disorder. She argued that Abadee J should have found that the Plaintiff exhibited disturbed behaviour while at Lutanda, and that the trial judge should not have preferred the evidence of Mrs Middleton to the evidence of Ms Levy and Ms Collier. The appeal also challenged the trial judge’s findings in relation to the Plaintiff’s expert evidence, much of which had not been challenged by the respondents. The Plaintiff argued that the trial judge should have found a duty of care, a breach of that duty and causation. The Plaintiff also argued that there was a fiduciary duty and breach of that duty which should have lead to the award of equitable compensation.
The approaches of the parties to the appeal were different. The Plaintiff approached the appeal to some degree as though it was a new trial. The Defendants’ approach was to draw attention to numerous findings which they submitted stood in the path of allowing the appeal and which, in many cases, they said were not attacked.
The Court of Appeal, consisting of Spigelman CJ, Sheller JA and Heydon JA, gave their judgement on 12 September 2000. The judgement was written by Heydon JA and both Spigelman CJ and Sheller JA agreed with his Honour’s findings and reasoning.
In relation to the differing approaches to the appeal adopted by the Plaintiff and the Defendants, the Court stated that:
the appeal was by way of re-hearing: Supreme Court Act 1970 (NSW) s 75A(5). It was not a trial de novo or a trial of the case afresh on the record. The Plaintiff bore the burden in the appeal not merely of showing that on the facts her contentions might be available or even correct, but of showing that the trial judge’s conclusion ought to be reversed.
Heydon JA commented on the difference between the case presented in earlier proceedings (in which the Plaintiff had sought an extension of time under the Limitation Act 1969 (NSW)), and the presentation of the case at trial in the Court of Appeal. His Honour referred to:
The Court referred to
particular reasons why even greater caution than normal had to be employed in view of the different forms taken by succeeding versions of the Statement of Claim, the radical changes in the factual position advocated by her advisers, and the near contradictory contentions they advanced as to why the defendants were liable.
The crucial finding challenged by the Plaintiff was that there was no risk of an attachment disorder in the Plaintiff when she left Bomaderry Home. The Court of Appeal repeated the findings of the trial judge that the Plaintiff had experienced sufficient bonding and attachment at Bomaderry, and that there was therefore no such risk.
The Court found that it was open to the trial judge to find that the relationship between the Plaintiff and Sister Saville was a close and intimate one. The Court also found that the material in front of the trial judge made it hard to decide whether the bonding was either adequate or inadequate and the Plaintiff did not establish that the bonding was inadequate. The Court also found that the trial judge’s finding about risk of attachment disorder was not challenged by the Plaintiff nor was the court taken to evidence which showed that the trial judge should not have made that finding.
The Plaintiff also challenged the finding that she had not displayed any disturbed behaviour while at Lutanda. The Court related in great detail the evidence of the witnesses who gave evidence about the Plaintiff at Lutanda, noting that the trial judge had not overlooked the relevant evidence. Finally, Justice Heydon stated that, ‘in my opinion the probabilities for which the Plaintiff contends as to how the Plaintiff behaved at Lutanda do not so outweigh those chosen by the trial judge that it can be said that his conclusion was wrong’. Further, His Honour stated that ‘to accede to the Plaintiff’s submissions about the Plaintiff’s behaviour at Lutanda would be to evaluate the facts de novo without regard to factors contributing to the trial judge’s impression of the evidence which of necessity he has not expressed exactly.’ The Court did not believe it had a duty to evaluate the facts de novo, especially where the credibility of witnesses was involved.
After leaving Lutanda, the Plaintiff committed a criminal offence which resulted in her being seen by a CGC psychiatrist, Dr Cooley. The plaintiff argued that:
if the Board has carried out its duty, it would have alerted the Lutanda staff to the risk to the plaintiff arising from her Bomaderry experiences, it would have inquired whether she had symptoms of attachment disorder, it would have learned from the Lutanda staff that she had, and it and the Lutanda staff between them would have had her taken to a Child Guidance Clinic, where the staff of the Child Guidance Clinic would have diagnosed the attachment disorder and remedied it by treatment.
Heydon J found that there was ‘no reason to reject the trial judge’s reasoning’, which was based on Dr Cooley’s report and that the Plaintiff had no psychiatric disorder on leaving Lutanda. In fact, the finding about Dr Cooley’s report created an ‘insuperable causation problem for the plaintiff’s case’.
As to whether a duty of care was owed, the Court of Appeal considered and affirmed the trial judge’s reasoning that imposing a duty of care may restrict the availability of services to care for unwanted children or children who are in need of protection.
[T]he potential impact of imposing a duty of care in the present circumstances is, as the trial judge noted, potentially wide...Any body having a statutory responsibility for non-Aboriginal children brought up in State charitable or denominational institutions or brought up by foster parents would probably be under a like duty. If so, analysis of the State’s powers to inspect non-State schools or other institutions affecting children, or adults, might support the existence of a similar duty. The State could thus be exposed to the risk of claims from every citizen alleging a relevant injury.
Further, Heydon J stated that:
Recognition of a duty of care in the area concerned in this case might well not only increase the number of cases to be processed by a crowded court system, but also impose on it tasks which it would find difficult to perform in view of the potential complexity and length of many of the cases.’
The Court of Appeal’s reluctance to disturb the trial judge’s findings of fact, indicates that decisions which rely heavily on findings of fact will be difficult to challenge. Additionally, a Plaintiff will continue to have difficulties satisfying their evidential burden in circumstances where events have occurred decades earlier. The existence of a duty of care in situations where a child, Aboriginal or non-Aboriginal, is in the care of the State in an institution or foster care has not been established. This has serious ramifications for future cases. It is unclear when the courts will be ready to recognise either a duty of care or a fiduciary duty towards children who are wards of the State. It may require a case which is more recent, with a Plaintiff who can give reliable and credible evidence. However, bringing such cases will be difficult because the nature of the alleged breach often causes severe psychiatric damage in plaintiffs. As the weight of authority seems to support the existence of a duty of care at least, it appears that it will only be a matter of time before a court recognises such a duty. It is up to those representing plaintiffs and plaintiffs themselves to continue to attempt to establish the liability of the State.
 Wedd v Wedd  SAStRp 8; (1948) SASR 104 at 107.
 Bennett v Minister for Community Welfare (1988) Aust.Torts Report 80-210 at 68,090.
 Above note 5, p 62
 Above note 5, p 13
 Above note 5, p 64.
 Above note 5, p 68
 Above note 5, p 69
 Above note 5, p 17
 Above note 5, p 44
 Above note 5, p 81
 Above note 5, p 86
 Above note 5, p 102.
 Above note 5, p 111
 Above note 5, p 106
 Above note 5, p 107
 Above note 5, p 117
 Above note 5, p 124
 Above note 5, p 150
 Above note 5, p 128
 Above note 5, p 136-137
 Above note 5, p 163
 Above note 5, p 138
 Above note 5, p 140
 Above note 5, p 184
 Above note 5, p 172.
 Above note 5, p 176
 Above note 5, p 180
 Above note 5, p 225
 Above note 5, p 230
 Above note 5, p 298
 Above note 5, p 289
 Above note 5, p 301
 Bennett v Minister of Community Welfare (1988) Aust Torts Reports (80-210); Paramasivam v Flynn  FCA 1711; (1998) 160 ALR 203
 Justice Abadee’s Judgment, above note 5, p 312
 Page of citation?
 Barrett v Enfield London Borough Council  3 WLR 79
 Justice Abadee’s Judgment, above note 5, p 340.
 Prince v Attorney General  3 NZLR 733
 Justice Abadee’s Judgment, above note 5, p 346.
 P 27 of the Judgement.
 Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497.
 Para 22 of the judgement.
 Para 97 of the judgement.
 Para 136 of the judgement.
 Para 137 of the judgement.
 Para 144 of the judgement
 Para 155 of the judgement
 Para 157 of the judgement
 Para 162 of the judgement
 Para 169 of the judgement