Indigenous Law Bulletin
Williams v The Minister, Aboriginal Land Rights Act & Anor
Supreme Court of NSW
On appeal from District Court decision
26 August 1999
by Karen McMahon
Judicial fear of ‘opening the floodgates’ blocked the first claim by an Aboriginal plaintiff against the government for damages arising from an alleged breach of duty by the Aborigines Welfare Board (‘the AWB’). In a startling decision, the NSW Supreme Court held that the AWB did not even owe a duty of care to children under its control, let alone breach it.
The Plaintiff brought proceedings against the NSW government for negligence, breach of statutory duty, breach of fiduciary duty and false imprisonment. Initially, the Plaintiff was unsuccessful in her application for an extension of the statutory time limit under the Limitation Act 1969 (NSW). This decision was later reversed on appeal to the NSW Court of Appeal.
The Plaintiff became a ward of the AWB at about four weeks of age pursuant to an application by her mother under s 7(2) of the Aborigines Protection Act 1909 (NSW) (‘the Act’). The AWB placed the Plaintiff at Bomaderry Children’s Home (Bomaderry), which was administered by the United Aborigines Mission subject to inspection and oversight by the AWB. The Act gave wide powers to the AWB in relation to wards, including a duty to provide for custody and maintenance, exercise a general supervision and care, protect against injustice, imposition and fraud, and in relation to the placement of wards in homes, charitable institutions, with foster parents or in employment.
In 1947, at the age of four years, the Plaintiff was transferred to Lutanda Children’s Home (Lutanda) for the purpose of removing her from the association of Aborigines because she was a fair-skinned child. The Plaintiff remained at Lutanda until she was eighteen and remained a ward during this time. There was no contact between the Plaintiff and the AWB after her admission to Lutanda.
Justice Abadee held that the AWB was not the legal guardian of the Plaintiff, on the basis that this was not expressly stated in the Act. In this respect, the Act differed from the Child Welfare Act 1930 (NSW) and the Aboriginal Ordinance 1918 (NT) which is the relevant statute in a similar action against the NT government.
The Plaintiff claimed that the AWB owed a duty towards her, including a duty to supervise her upbringing, to monitor at regular intervals the care she was receiving, to interview her, to inquire into allegations of mistreatment, to acquaint her with details of her mother’s whereabouts and to take reasonable care to safeguard her mental and physical well-being.
The Plaintiff alleged that according to the state of knowledge of the 1940’s and 1950’s, the AWB knew or ought to have known that the conditions of overcrowding and staff shortages at Bomaderry were such that the Plaintiff was at risk of suffering from maternal deprivation. It was claimed that from the age of about six years onwards, the Plaintiff exhibited disturbed behaviour including acts of self-mutilation which indicated that she was suffering from an attachment disorder. The Plaintiff’s disturbed behaviour was not properly responded to and she developed borderline personality disorder, which could have been prevented with the services available at the time, had the AWB fulfilled its duty.
The Plaintiff claimed a long history of psychiatric disorder and substance abuse leading to numerous admissions to psychiatric hospitals and incarceration. She experienced an inability to parent her own children and economic loss arising from incapacity for employment. Damages, including aggravated and exemplary damages were claimed.
The Defendants denied the Plaintiff’s claim in every respect. They claimed that no duty was owed as alleged or alternatively that there was no breach of duty. Furthermore, the Defendants argued that a causal link between breach of duty and the harm suffered had not been established. It was claimed that the Plaintiff was properly cared for at Bomaderry and Lutanda according to the standards of the time and that the Plaintiff had exhibited no behavioural problems warranting intervention by the AWB whilst a ward.
In respect to the Plaintiff’s claim of breach of fiduciary duty, the Defendants argued that relief should be denied due to the Plaintiff’s inordinate delay in initiating proceedings.
Squarely basing his reasoning on policy considerations, Justice Abadee held that the AWB did not owe a common law duty of care to the Plaintiff.
His Honour approved of the ‘three-consideration’ test laid down in the English case of Caparo Industries PLC v Dickman but noted that this was not an approach that was supported by the majority of the High Court in the recent case of Frank Perre v Apand Pty Ltd. The three considerations of the Caparo test are: first, whether the damages were reasonably foreseeable; second whether the relationship between the Plaintiff and the Defendant was sufficiently proximate and third, whether is it just and reasonable to impose a duty of care. The focus of the judgment is clearly on the third consideration and issues of policy. Justice Abadee was of the opinion that the ‘potential for floodgate problems with social and economic consequences could not be ignored when dealing with these novel type cases’. He went on to state that:
...the imposition of a duty of the type urged in the instant case could affect not merely the Board but also have financial consequences for other child caring bodies whether conducted by the State or religious, voluntary or other charitable institutions, the very bodies to whom the very children sought to be protected, turn to and rely upon for assistance. Indeed, foster parents and adopting parents could also be affected as well.
Justice Abadee considered that the imposition of a duty of care could operate to reduce the supply of child care services, increase their cost or reduce standards which would be detrimental to the public interest. His Honour also considered that the imposition of a duty of care, may cause authorities to adopt a more cautious and defensive approach to their duties, which were extraordinarily delicate in nature.
His Honour also relied on fair trial considerations, including the difficulty of disentangling causal factors long after they had occurred and the weight to be accorded to the respective influences of nature and nurture.
Justice Abadee’s findings in relation to whether the AWB owed a duty of care to wards was also clearly influenced by an analogy with the treatment of the parent-child relationship at common law. The Courts have held that as a matter of policy, a parent cannot be sued by his or her child except in specific situations, for instance, motor vehicle accidents. The failure of a parent to care for his or her child does not breach the civil law although it may amount to a criminal offence. His Honour held that it would be wrong to impose a higher duty on a government care-provider than on a natural parent.
His Honour found that the decisions of Bennett v Minister for Community Welfare and Barrett v Enfield London Borough Council were not sufficiently similar as to constitute precedents warranting the imposition of a duty of care.
The Plaintiff’s action in negligence failed because of the finding that there was no duty of care. His Honour did, however, make a number of findings in the alternative. It was held that there was no breach of duty, or that if there was any breach of duty it did not cause any damage to the Plaintiff. The Defendants’ evidence was accepted in preference to the Plaintiff’s on all factual issues. If a case for damages had been proved, His Honour considered the assessment of damages to be highly speculative and that damages should be assessed at $100,000 and that exemplary and aggravated damages should not be awarded.
Justice Abadee was prepared to assume, without deciding, that there was a fiduciary relationship between the AWB and the Plaintiff. His Honour expressed some reservations as to whether there was a fiduciary relationship in the light of his earlier finding that the AWB was not the Plaintiff’s ‘legal guardian’ and also whether the relationship of guardian and ward was an established fiduciary category.
Justice Abadee found that the existence of a fiduciary relationship did not of itself impose fiduciary duties of the kind claimed by the Plaintiff. In reaching this conclusion, His Honour relied on the dissenting opinion of Justice Powell in Williams (No 1). His Honour reasoned that fiduciary duties did not attach to every aspect of a fiduciary’s conduct and that it was necessary to have regard to the particular transaction under challenge. His Honour considered Canadian precedents in which interests of a non-economic kind were protected but, following comments by the High Court in Breen v Williams and the Federal Court in Paramasivam v Flynn, found that they were not applicable in the Australian context.
It was further held that even if a fiduciary duty were established, there would have been a basis for denying equitable relief on the grounds of delay and prejudice.
In the absence of clear statutory intention in the Act, Justice Abadee held that a ward did not have a right to bring an action against the AWB if it breached it’s duty under s 7(1)(c) and (e).
As the Plaintiff became a ward of the AWB pursuant to an application by the Plaintiff’s mother, His Honour found that this cause of action did not arise on the facts.
Justice Abadee’s decision may be criticised in a number of respects. It is submitted that the Court relied upon misconceived policy factors at the expense of proper consideration of the relationship between the AWB and a ward under it’s control. Insufficient weight was given to the high degree of proximity between the AWB and wards in terms of control and reliance.
It is further submitted that the relationship between the State and a child under its control is of a fundamentally different nature than that between a parent and child. Ill-defined fears of a flood of claims and an associated drain upon resources should not provide government with immunity from liability in circumstances where there has been a foreseeable risk of injury to a state ward. Justice Abadee’s decision is inconsistent with the finding of the trial judge in Bennett v The Minister for Community Welfare in which a duty of care was found to be owed by a welfare authority to a child in its institution; a finding that was not challenged before the High Court.
In some respects, the Court’s approach to the question of what duty was owed by the AWB in common law and equity is unduly narrow and technical. This is evident in the emphasis given to whether the relevant Act expressly provided that the AWB was the legal guardian of the ward. Clearly, those children who were wards of the AWB in NSW were no less subject to the control of the government in their daily lives than non-Aboriginal children under the Child Welfare Act 1930 (NSW). It would be incongruous if redress for Aboriginal Plaintiffs depended upon such distinctions.
Many questions surrounding whether a fiduciary duty can be relied upon remain undecided, including the existence of a duty and its scope for protecting interests of a non-economic kind. Arguably, the relationship between the AWB and a state ward had the essential hallmarks of inherent disadvantage, vulnerability and reliance which would justify the imposition of fiduciary duty.
Whilst the decision may be viewed as having adverse consequences for plaintiffs in NSW, the effect of the findings in other jurisdictions will turn upon the particular facts and legislation under consideration.
An appeal has been lodged against the decision.
Karen McMahon is a solicitor at the Kingsford Legal Centre.
1 Williams v The Minister, Aboriginal Land Rights Act & Anor 35 NSWLR 515 [Williams (No 1)].
 The Act s 7(1)(c).
 Ibid, s 7(1)(e).
 Ibid s 11D, s 11E.
5 Williams v The Minister, Aboriginal Land Rights Act & Anor, Supreme Court of NSW, 26 August 999, para 710.
 Cubillo v The Commonwealth of Australia  FCA 518.
  UKHL 2;  2 AC 605.
  HCA 36.
 Abadee, above n 5, para 786.
 Ibid, para 802.
 Ibid para 775 relying upon the reasoning of Lord Brown Wilkinson in X Minors v Bedfordshire County Council  UKHL 9;  2 AC 633; 749 - 750.
 Ibid para 798 relying on Attorney-General v Prince & Gardner  1 NZLR 262.
 Hahn v Conley  HCA 56; (1971) 126 CLR 276.
5 See for instance Children (Care and Protection) Act 1987 (NSW), s 25 and 26 which create offences for child abuse and neglect.
6 Abadee, above n 5, para 787.
7 (1988) Aust Torts Reports (80-210).
8  3 WLR 79.
 Above n 1.
 Norberg v Wynrib (1992) 92 DLR (4th) 449, M(K) v M(H) (1992) 96 DLR (4th) 449.
 (1996) 186 CLR 71 ; 83 (Brennan CJ),110-113 (Dawson and Toohey JJ) and 132 (Gummow J).
  FCA 1711; (1988) 160 ALR 203.
 (1988) Aust Torts Reports 80-210.