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1. 

   AttorneyGeneral v Prince Gardner

   New Zealand Court of Appeal Judgments
   NEW ZEALAND COURT OF APPEAL JUDGMENTS
   1997
   Attorney – General v Prince & Gardner

   Attorney – General v Prince & Gardner
   CA192/96
   Appellant:The Attorney – GeneralRespondent:RD Prince and R v GardnerJudges:Richardson P – Henry J – Thomas J – Keith J – Tipping JJudgment By:Richardson P – Henry J – Tipping JCoram No.:5A. Counsel:J J McGrath QC – W G LiddellR. Counsel:Robert Chambers QCFiling Date:13 Aug 1996Delivery Date:25 Nov 1997Hearing Year:1997Keytitles:Appeal to C.A., Adoption, Negligence, Equity, Fiduciaries, Duty of Care, Family Law, Social Welfare, Children & Young Persons, TortSummary:Striking out – whether Crown may be liable in negligence and for breach of fiduciary duty for errors or failings on part of social workers in performing their statutory duties and exercising their statutory powers under (a) Adoption Act 1955 and (b) Children and Young Persons Act 1974 – P claims appalling childhood and poor parenting by adoptive parents and that complaint by third party of neglect when child 14 not (adequately) responded to – G (birth mother) claims misled by social worker as to adoptive parents etc – held no causes of action as to Adoption Act but 1974 Act causes remain for trial.Law Reports:[1998] 1 NZLR 262Judgments:CA19296

   IN THE COURT OF APPEAL OF NEW ZEALAND CA 192/96

   BETWEEN THE ATTORNEY-GENERAL
   Appellant

   AND R D PRINCE and R V GARDNER
   Respondents

   Coram: Richardson P
   Henry J
   Thomas J
   Keith J
   Tipping J

   Hearing: 10 and 11 September 1997

   Counsel: Solicitor-General J J McGrath QC and W G Liddell for Appellant
   R Chambers QC for Respondents

   Judgment: 25 November 1997

   __________________________________________________________
   JUDGMENT OF RICHARDSON P, THOMAS AND KEITH JJ
   DELIVERED BY RICHARDSON P
   __________________________________________________________
   Contents

   The factual background 2
   The pleadings 3
   The High Court decision on the striking out application 4
   Striking out 6
   Determining in new situations whether a claim in negligence may lie 7
   The adoption legislation 9
   Adoption in 1969: the social setting 15
   Adoption: a common law duty of care? 17
   Policy factors 19
   Breach of fiduciary duty 23
   The 1983 complaint: the pleadings 23
   The Children and Young Persons Act 1974 24
   The 1983 complaint: a duty of care 29
   Proximity 30
   Wider policy considerations 32
   The 1983 complaint: breach of fiduciary duty 36
   Result 36
   This appeal and cross-appeal are against the decision of Anderson J reported at [1996] 3 NZLR 733 ruling on an interlocutory application by the Attorney-General, defendant in the High Court and appellant on the appeal, for orders striking out the statement of claim. At issue is whether the Crown may be liable in tort or in equity for errors or failings on the part of social workers in performing their statutory duties and exercising their statutory powers under the Adoption Act 1955 and the Children and Young Persons Act 1974.

   The factual background
   The first respondent, Mr Prince, whose mother, the second respondent, Ms Gardner, gave him up for adoption following his birth on 10 April 1969, has had a difficult life. He is now in prison. The statement of claim avers that his childhood was appalling and as a consequence of his adoptive parents’ abysmal parenting skills he was deprived of care, a home and education and of the chance to realise his potential; that he suffered impairment of his development, distress and emotional abuse; and that in his teenage years he had no home or home life, no adult caring for him and his education and suffered deprivation, impairment, distress and abuse in those various respects, and had to look after himself.
   He and his birth mother, who discovered what had happened to him in about 1990, place responsibility for his problems, and their effects on both of them, on the Crown. Their separate concerns are directed to the adoption process carried out by child welfare officers of the Department of Education, the predecessor in this respect of the Department of Social Welfare (“DSW”). As well, Mr Prince claims that in 1983, when he was 14, DSW failed to investigate a complaint from one, Jane Richards, that the adoptive parents were not looking after him properly and failed to exercise its powers under the Children and Young Persons Act 1974.
   The pleadings
   The 1969 events give rise to two causes of action by Mr Prince and two separate causes of action by Ms Gardner. Mr Prince’s first cause of action is pleaded in negligence. The second is for breach of fiduciary duty. A third cause of action for breach of statutory duty on the part of the social worker for failing to prepare certain adoption reports to the Magistrates Court carefully, was struck out by the High Court and is not pursued. There is no claim for misfeasance in public office.
   As pleaded, Mr Prince’s cause of action in negligence avers negligence on the part of the child welfare officer in preparing the reports required by s10 and s13 of the Adoption Act and recommending that Mr and Mrs Prince become the adoptive parents, for which, it is claimed, the department was vicariously responsible. The first cause of action also avers direct, systemic negligence on the part of the department and in various respects. The second cause of action pleads the existence of fiduciary duties owed by the officer and the department to Mr Prince (the child) and their breach, the particulars of breach mirroring exactly the particulars in negligence.
   The two causes of action pleaded by Ms Gardner are also for negligence and breach of fiduciary duty with the particulars of breach also mirroring the particulars in
   respect of Ms Gardner’s claim in negligence, with the added particular that the social worker concerned misrepresented the nature of the adoption process. Her claim is that, as a child welfare officer, a Ms Dickie represented to and assured her that if she consented to an adoption the child would go to a well off family which owned its own home; that every effort would be made to match the child with a family likely to be similar to her own; and that, if the adoptive parents divorced or died, no one else could take the child without her consent.
   Mr Prince’s remaining two causes of action are parallel causes of action in negligence and breach of fiduciary duty for failure by the department to respond to the complaint that the adoptive parents were not looking after him.

   The High Court decision on the striking out application
   In the High Court Anderson J struck out the causes of action pleaded by Mr Prince relating to the adoption and the fiduciary duty cause of action in respect of the 1983 complaint, but not the negligence claim in respect of the complainant. The Judge declined to strike out both causes of action relied on by Ms Gardner. The judgment being reported, it is not necessary for present purposes to set out the Judge’s reasoning in detail.
   He held against Mr Prince on the first two causes of action for two reasons. One was that witness immunity and court immunity precluded suit in respect of the social worker’s acts or omissions in connection with the making of the interim and final adoption orders. The other was that neither the officer nor the department owed a common law duty of care. The duty postulated by the Judge was to take reasonable care to inform a court considering an adoption application of matters relevant to the welfare of the child in respect of whom orders were sought. Proximity being conceded by the Crown, the Judge reviewed policy considerations at length. He concluded that how the adoption court was or might have been influenced by an officer’s report would be largely speculative; that privacy considerations necessarily affected inquiry into questions of parental causation and parental responsibility for a child’s upbringing, life quality and character development which were scarcely justiciable; that the essential nature of the grievance was that the plaintiff claimed to have ended up with unsatisfactory parents who brought him up badly and damaged his life prospects and that the common fact of deficient parenting, causing the damage of childhood deprivation, compelled a consideration of potential action against parents themselves which our contemporary society would reject; and that there were other systems of accountability through ministerial and parliamentary oversight of the department, through the statutory provision for variation or discharge of adoptive orders and through the supervision by the adoption court of the functions directly related to the adoption process.
   The Judge accepted that there was a fiduciary relationship derived from the officer’s role in acting on behalf of the child. But no basis for non-negligent and good faith omission amounting to breach of fiduciary duty was apparent from the pleadings or could be implied from the Adoption Act.
   Anderson J was not prepared to strike out Ms Gardner’s claim in negligence. There were no persuasive policy indications against recognising a duty of care. The Judge saw the vulnerable state of the birth mother, her reliance on the integrity of the advice tendered, the reliance such a mother was entitled to place on officers of the department charged with the welfare of children, the extent of the officer’s statutory powers and responsibilities and the mother’s inability to check the consequences, as overwhelming indications for recognising a duty of care. And, while she would not be entitled to compensatory damages for the emotional harm of learning of the consequences of the breach, exemplary damages might be awarded. For similar reasons the parallel cause of action for breach of fiduciary duty could not be struck out.
   Finally, in relation to the department’s alleged failure to respond to the complaint in 1983 that the adoptive parents were neglecting the child, the Judge concluded that there were very firm policy reasons for not withholding recognition of a common law duty of care to children at risk in the very respects for which the statute provided preventive and remedial objectives and powers and which were so consonant with the standards and expectations of the New Zealand community. The Judge distinguished X (Minors) v Bedfordshire County Council [1995] 2 AC 633 as involving different statutory provisions. However there was nothing in the pleading to hint why a fiduciary duty to carry out a prompt inquiry in response to a complaint might exist and that cause of action was struck out.
   The appellant seeks to have the remaining three causes of action struck out. The respondents seek the reinstatement of the first, second and last named causes of action.

   Striking out
   A striking out application proceeds on the assumption that the facts pleaded in the statement of claim are true. That is so even although they are not or may not be admitted. It is well settled that before the court may strike out proceedings the causes of action must be so clearly untenable that they cannot possibly succeed (Lucas and Sons (Nelson Mail) Limited v O’Brien [1978] 2 NZLR 289, 294-5; Takaro Properties v Rowling [1978] 2 NZLR 314, 316-7); the jurisdiction is one to be exercised sparingly, and only in a clear case where the court is satisfied it has the requisite material (Gartside v Sheffield, Young & Ellis [1983] NZLR 37, 45; Electricity Corporation Ltd v Geotherm Energy Ltd [1992] 2 NZLR 641); but the fact that applications to strike out raise difficult questions of law, and require extensive argument does not exclude jurisdiction (Gartside v Sheffield, Young & Ellis).
   Mr Chambers for the respondents submitted that the courts should be very slow to rule on novel categories of duty at the striking out stage. Where the hypothetical facts cover a range of factual possibilities, deciding wide public policy questions may lead to an unfocussed approach because the inquiry is then set against too broad a factual canvas. And empirical evidence and other expert evidence properly tested may help the court in making the right public policy choices.
   There is force in these submissions, highlighted by the application by the Solicitor-General to admit evidence as to the current resources and responsibilities of the department and present social work practices and accountabilities. It is only where, on the facts alleged in the statement of claim, and however broadly they are stated, no private law claim of the kind or kinds advanced can succeed that it is appropriate to strike out the proceedings at a preliminary stage. And in that assessment the public policy considerations must be solidly founded in the relevant legislation, other relevant material, or the experience of the courts. In some cases aspects of policy may require the kind of analysis and testing of expert evidence, including evidence of economic and social analysis, that is available only at trial. In other cases, policy considerations are patent. They may be explicit or implicit in the relevant legislation. They may be reflected in other areas of the law. Or the courts may feel the considerations are readily identifiable and capable of evaluation and need not be the subject of evidence to be tested at trial.
   For reasons to which we shall come we are satisfied that there are specific powerful policy considerations relating to the adoption which are sufficiently self-evident and when taken together require the striking out of those causes of action. However, the negligence cause of action arising from the complaint to the department in 1983 raises different factual and policy considerations and it would be premature to rule out any possibility of a duty of care before trial.
   Determining in new situations whether a claim in negligence may lie
   The issue is whether a claim in negligence may lie. The ultimate question is whether in the light of all the circumstances of the case it is just and reasonable to recognise a duty of care by the defendant to the plaintiff. That depends on consideration of all the material facts in combination. It is an intensely practical question. For almost 20 years, and drawing on Anns v Merton London Borough Council [1978] AC 728, we have found it helpful to focus on two broad fields of inquiry. The first is the degree of proximity or relationship between the alleged wrongdoer and the person who has suffered damage. That is not a simple question of foreseeability as between parties. It involves consideration of the degree of analogy with cases in which duties are already established and reflects an assessment of the competing moral claims. The second is whether there are other policy considerations which tend to negative or restrict – or strengthen the existence of – a duty in that class of case (Fleming v Securities Commission [1995] 2 NZLR 514, 527-528).
   Three distinct claims in negligence require consideration. What may be termed the 1969 claims by the child and the mother respectively are outcomes of the adoption process. The complaint to the department in 1983, which gives rise to the other claims by the child, calls for close consideration of the Children and Young Persons Act 1974.
   In determining whether any claim in negligence may lie, the first step is to summarise the material features of the particular legislation and then to assess those features in the social context along with any other relevant considerations. In that analysis it is important to distinguish actions to recover damages based on a private law cause of action, from judicial review proceedings in public law to enforce the due
   performance of statutory duties. In this appeal, too, the plaintiffs are not suing for misfeasance in public office, i.e. the exercise or non-exercise of statutory functions and powers with intent to injure the plaintiff or in the knowledge that the conduct is unlawful. And there is no longer a claim for the careless performance of a statutory duty. The causes of action pleaded are common law negligence and breach of fiduciary duty based on the same particulars as given in respect of the alleged breach of the duty of care.

   The adoption legislation
   Before 1881 informal adoption arrangements were common and in some instances undertakings were obtained from the natural parent. But the common law did not recognise adoption. The rights, liabilities and duties of parents were inviolable. Adoption was deemed to be against the public interest. It was impossible by agreement to give the child the legal status of a child of the adopting parents. In 1881 with the passage of the Adoption of Children Act of that year New Zealand became the first member of the British Empire to pass adoption laws. The present legislation, which was the legislation in force in 1969 when Mr Prince was adopted, is the Adoption Act 1955. The act does not define adoption. Rather, it prescribes the process for obtaining an adoption order, variation or discharge of orders, and the legal effect of orders. Trapski’s Family Law Vol V, para A.6 describes it in this way:
   The Adoption Act does not define adoption; it merely describes the necessary procedures for obtaining an adoption order and legal effect of the order.
   Adoption is a legal process culminating in the making of an adoption order by which the child’s biological parents lose their status as parents and their parental rights and are absolved from their parental responsibilities. By the adoption order, the adoptive parents assume the status of parenthood and the accompanying rights and responsibilities in relation to the child. The child gains a new parent or parents and acquires a new set of relatives traced through the adoptive parent(s). The child loses its birth parents and the set of relatives traced through them. Adoption authorises and effects a legal transplant of the child, severing relationships with its family of origin and creating a new set of family relationships through the adoptive parent(s).
   In 1969 adoption orders could be made by a Magistrate’s Court or the Supreme Court on appeal; now it is a Family Court or District Court or the High Court on appeal (the adoption court).
   The statutory process requires an application by two spouses or by the mother or father of the child alone or jointly with his or her spouse (the adoptive parents). The applicants must file an affidavit containing the information specified in Reg 8 of the Adoption Regulations 1959 including their ages, their state of health, particulars of their financial circumstances, the sex, age and state of health of any child of the
   applicants or either applicant, and the reasons for wanting to adopt the child. At any hearing of the application the applicants and the child must attend personally before the adoption court, unless the court directs otherwise (Reg 10). The natural mother is not required to attend.
   The required consents (here of the birth mother, Ms Gardner) must be filed in the adoption court or dispensed with by the court in certain tightly defined circumstances (ss7 and 8). Importantly, as requiring a reasonable period of time before the mother’s consent is effective, s7(7) provides that a document signifying the consent shall not be admissible unless the child is at least 10 days old. Further, it must be witnessed by (in 1969) a Magistrate, a Registrar of the Supreme Court or a Magistrate’s Court, or a solicitor or a Judge, Commissioner or Registrar of the Maori Land Court (s7(8)) – and the solicitor cannot be the solicitor acting for the applicants (Reg 9(2)); and the form of the document signifying the consent must contain an explanation of the effects of an adoption order and have endorsed a certificate by the witness that he or she personally explained the effect of an adoption order to the person giving consent (s7(9)). The forms of consent specified by Reg 9 state the effect of an adoption order including that “(a) the child is deemed for all purposes and as regards all relationships to become a legitimate child of the adoptive parents; and (b) rights of guardianship and existing relationships in respect of the child cease except for the very special purpose of determining forbidden relationships in connection with marriage and with the crime of incest”. And the certificate on the form is:
   I hereby certify that before the said signed the foregoing consent I fully explained to him (or her or them) the effect of the making of an adoption order as set out in the Adoption Act 1955, and that he (or she or they) appeared fully to understand the same.
   The legislation also requires a report to the adoption court from a social worker (in 1969 a child welfare officer) and before furnishing that report the social worker must make inquiries of the police as to whether anything is known to them about the character of the applicants, and make known to the court the result of his or her inquiries (Reg 7).
   If the adoption court considers that an application should be granted it must, in the first instance, make an interim order in favour of the applicant or applicants provided that it may make an adoption order without first making an interim order if all the conditions of the Act governing the making of an interim order have been complied with and special circumstances render it desirable that an adoption order should be made in the first instance (s5). Sections 10 and 11 provide:
   10. Social Worker to report – (1) Before the Court makes any interim order, or makes any adoption order without first making an interim order, –
   (a) The Registrar of the Court shall require a Social Worker to furnish a report on the application;
   (b) Reasonable time shall be allowed to enable the Social Worker to furnish a report, and the Court shall consider any report which the Social Worker may furnish; and
   (c) The Registrar shall give the Social Worker reasonable notice of the hearing of the application:
   Provided that this subsection shall not apply in any case where the applicant or one of the applicants is an existing parent of the child, whether his natural parent or his adoptive parent under any previous adoption.
   (2) The Social Worker shall be entitled to appear at the hearing of the application, and to cross-examine, call evidence, and address the Court.
   11. Restrictions on making of orders in respect of adoption –
   Before making any interim order or adoption order in respect of any child, the Court shall be satisfied –
   (a) That every person who is applying for the order is a fit and proper person to have the custody of the child and of sufficient ability to bring up, maintain, and educate the child; and
   (b) That the welfare and interests of the child will be promoted by the adoption, due consideration being for this purpose given to the wishes of the child, having regard to the age and understanding of the child; and
   (c) That any condition imposed by any parent or guardian of the child with respect to the religious denomination and practice of the applicants or any applicant or as to the religious denomination in which the applicants or applicant intend to bring up the child is being complied with.
   Section 12 goes on to empower the adoption court, on the application of any person and in its discretion, to revoke an interim order on such terms as the court thinks fit. And while the interim order remains in force any social worker may at all reasonable times visit and enter the residence in which the child lives (s15(2)(b)). In terms of s13 an adoption order may issue on the application of the adoptive parents where the interim order has continued in force for (ordinarily) not less than six months. A report by a social worker is required. If it recommends that an adoption order be issued and certain other pre-conditions are satisfied, the Registrar issues the adoption order without further hearing; otherwise there is a further hearing for which a social worker reports and at which the social worker is entitled to appear, cross-examine on the evidence, and address the court (s13(4)).
   To sum up at this point, the statute requires that following a hearing, and in some cases two hearings, the adoption court be satisfied on the evidence before the court that the adoption order should be made. That evidence includes, but is by no means confined to, the report from the social worker to the court. And in reporting and in participating at the hearing the social worker is exercising an independent professional judgment under the legislation and is not subject to directions from the department in discharge of that responsibility. In Re an application by B (High Court, Napier M106/80, judgment 5 December 1980) O’Regan J had to consider the obligations of a social worker and in particular the influence of policy on an individual social worker. He observed:
   If a policy is laid down which the social worker as a servant is obliged to implement the Director-General has taken upon himself a power which has not been conferred upon him by the legislature. All in all, I think the position is that Parliament has deliberately conferred the power to report and to take part in the proceedings upon the local social worker and that such power encompasses a wide discretion to the social worker to take an overall view of the circumstances obtaining in each individual case unfettered by any policy of general application laid down by the Director-General.
   The effects of a final adoption order are set out in s16 of the Act. These include that the adopted child is deemed to become the child of the adoptive parents and the adoptive parents are deemed to become the parents of the child, with the legal and logical consequences of that change in status as set out extensively in the section.
   Section 20 provides for the variation or discharge of adoption orders. It is of particular significance in assessing whether a cause of action lies in favour of Ms Gardner in respect of the allegedly negligent representations and assurances given to her in 1969. Subsections (1) and (3) provide:
   (1) The Court may in its discretion vary or discharge any adoption order … subject to such terms and conditions as it thinks fit.
   …
   (3) No application for the discharge of any adoption order or adoption shall be made without the prior approval of the Attorney-General; and no adoption order or adoption shall be discharged unless –
   (a) The adoption order or adoption was made by mistake as to a material fact or in consequence of a material misrepresentation to the Court or to any person concerned; or
   (b) The discharge is expressly authorised by any other section of this Act.
   It is long settled that such applications may be made even though the child is of age (e.g. Wingfield and Wife v Bartholomew [1933] NZLR 693). In Application by
   C and K (Adoption) (1984) 3 NZFLR 321 a lapse of 20 years did not preclude setting aside an adoption order on grounds of mistake and misrepresentation. See also In re I (1947) 42 MCR where the time lapse was 25 years. In S and S v M (1984) 1 FRNZ 312 where M signed a consent to adoption following assurances from the social worker that access could be guaranteed although not formally recorded, Casey J upheld the revocation of the interim order, concluding that the absence of true consent to an adoption was a fatal flaw. M’s consent could not be regarded as fully informed if based on a misunderstanding of the consequences where she thought she was consenting to an adoption which would give her liberal access on a permanent basis. And in GM v T [1996] NZFLR 817 the Family Court set aside an adoption order made three years earlier where there had been material misrepresentations and mistakes of fact in a social worker’s report and serious irregularities in the processes followed and the court concluded that had the true position been apparent the adoption order would not have been made.
   Next, there are important provisions as to secrecy. Adoption applications are heard in camera and no report of the proceedings may be published except by leave of the adoption court (s22). By s23:
   (1) An adoption order shall be open to inspection by any person who requires to inspect it for some purpose in connection with the administration of an estate or trust of which that person is executor, administrator, or trustee.
   (2) Adoption records shall be open to inspection by any Registrar of Marriages or marriage celebrant under the Marriage Act 1955 for the purpose of investigating forbidden degrees of relationship under that Act.
   (3) Adoption records shall not be available for production or open to inspection except –
   (a) To the extent authorised by subsection (1) or subsection (2) of this section or by section 11(4)(b) of the Adult Adoption Information Act 1985; or
   (b) On the order of a Family Court, a District Court, or the High Court, made –
   (i) For the purposes of a prosecution for making a false statement; or
   (ii) In the event of any question as to the validity or effect of any interim order or adoption order; or
   (iii) On any other special ground.
   The relevant offence referred to in s23(3)(b)(i) is of making any false statement for the purpose of obtaining or opposing an interim order or adoption order (s27(1)(f)).

   Adoption in 1969: the social setting
   The Adoption Act 1955 was major social legislation. Its purpose and effect was to extinguish all ties between child and natural parents and extended family and to give the child new replacement parents and their extended families. The new parent/child relationship was to be accepted without question in the knowledge that the circumstances surrounding the adoption should not in general be disclosed.
   The Act established a comprehensive self-contained adoption process. There is a statutory blanket of confidentiality and secrecy. Before the passing of the 1955 Act the natural parent had to know the identity of the proposed adoptive parents when giving consent to the adoption. Under the 1955 statute natural parents and adoptive parents need never know and may never learn the identity of the other. Secrecy attaches to the proceedings and to the records of proceedings. Those provisions particularly support closed stranger adoptions.
   Also central to the legislation is the emphasis on a judicial determination of whether or not to make an adoption order. The legislation provides for particular material to be supplied to the adoption court by the applicants and the social worker and for obtaining consents which on their face have been independently validated and vouched for by a professional officer, often a solicitor. Social workers have three statutory roles: to approve an initial placement of the child before an interim order is made (s6); to report to the adoption court and take part in hearings before the court (ss10 and 13); and to oversee the placement of the child between interim and final orders (s15(2)(b)). As Campbell, Law of Adoptions in New Zealand (2nd ed 1957) 48 notes, reporting is the principal means of ensuring that the information supplied by the applicants in support of the application is checked, that the court is placed in possession of relevant information, and that the prospects for successful adoption are objectively assessed by a trained investigator who has seen all the parties and who has looked at the child’s intended home. Nevertheless the social worker’s report is only part of the evidence which the adoption court must consider in deciding whether or not to grant the application.
   It is also important to keep in mind that we are concerned with the adoption process in 1969 under the Adoption Act 1955, not with current community perceptions of and attitudes to adoption. The Adult Adoption Information Act 1985 reflected a modification of earlier social attitudes to permanent extinguishing of relations between child and natural parent. And clearly there have been substantial levels of concern and dissatisfaction with the philosophy and processes underlying the 1955 legislation which are reflected in various official reviews of adoption laws and practices and in specialist publications (see Trapski’s Family Law para A-10; and Griffith, New Zealand Adoption, History and Practice, Social and Legal 1840-1996).

   Statistics, too, are revealing. In the decade before the 1955 Act there were around 1,400 adoptions a year. Following the passing of the statute there was a sharp rise in adoption orders, reaching almost 4,000 per year between 1968 and 1971 before falling back and in the last 10 years dropping from 1,000 per year to only 540 in 1996. In the early years under the 1955 Act the great majority of adoptions (60% to 70%) were stranger adoptions. Over the last 15 years only about 20% to 25% have been stranger adoptions and many of those relatively few stranger adoptions are open arrangements providing by agreement, but without any obvious statutory basis, for continuing contact between the two families. But, in the period with which we are concerned in this case, closed stranger adoptions in conformity with the scheme and purpose of the 1955 Act clearly had substantial community support.
   Adoption: a common law duty of care?
   It is common ground that the social workers and the department could foresee damage to the child (and to the natural mother) if their statutory responsibilities were carried out negligently, and that the relationship between them (and the department) and the child (and the mother) is sufficiently proximate. The question then is whether it is just and reasonable to impose a common law duty of care on the social workers for which the Crown is liable. Although the case is concerned with the rights of an adopted child and natural mother in relation to particular aspects of the adoption process, it must raise the broader question of whether the law should recognise that those responsible for carrying out functions contemplated by the Adoption Act are under a duty of care to persons who foreseeably may be caused damage by their actions. If there is no such general duty owed, there would seem not to be any particular circumstances in this case which would require the imposition of such a duty.
   Persons immediately affected by the adoption process are at the three corners of the triangle: the child, the natural parents or guardians of the child, and the adoptive parents (including the spouse of an adoptive parent where the application is not joint). Those having obligations under the Act (other than the child) include the Director-General, the department, social workers, the police, solicitors and others certifying consents, and the adoptive applicants.
   The implications of imposing a duty are these. First, in relation to the child there is the risk of liability for influencing the adoption court to make an adoption order in favour of unsuitable applicants; for adverse consequences of being placed in an approved home (s6); and for bad parenting by adoptive parents. Second, in relation to natural parents (or guardians) there is the risk of liability for adverse consequences of careless advice as to the suitability and particular qualities of adoptive applicants, and as to the effects of adoption; and for mental anguish and distress of discovering the child suffered from bad parenting by adoptive parents. Third, in
   relation to adoptive parents, there is the risk of liability for their adopting an unsuitable child.
   The essential claim by Mr Prince is that because of the negligence on the part of the social worker and the department the adoption was made and he has suffered from bad parenting by the adoptive parents. The essential claim by Ms Gardner is that her consent to the adoption was wrongfully induced by negligent misrepresentations as to the suitability of any adoptive parents and the assurance that her further consent would be required should they part or die. The misrepresentations which are pleaded are within the scope of the matters which would be, or properly could be expected to be, traversed and resolved as part of the process for obtaining the consent of the natural mother. Consequently, Ms Gardner’s claim cannot be divorced from the adoption regime and is subject to essentially the same policy concerns.
   Policy factors
   There are we think two major policy considerations which support the imposition of a duty of care on those responsible for carrying out functions under the Act. First, as it was put in the Bedfordshire case at 663 per Lord Bingham MR and 578 per Lord Browne-Wilkinson, the proper consideration which has first claim on the loyalty of the law is that errors should be remedied and that very potent counter considerations are required to override that policy. Second, as independent professionals social workers are expected to exercise reasonable care and skill in carrying out their statutory functions; and in the present situation the fulfilment of the duty to the child (or the mother) is consistent with the social worker’s duty to the court. There is, too, an element of reliance: explicit reliance by the mother on the pleaded negligent misrepresentations and assurances; implicit reliance by the child on the exercise of reasonable care and skill by the social worker.
   However, the countervailing considerations are in our view much stronger overall. First, and particularly significant, it would be inconsistent with the policy and scheme of the Act to allow individual claims in negligence in respect of particular acts or omissions in the carrying out of the statutory functions.
   The legislation establishes a process leading to judicial consideration and determination on the evidence then before the adoption court of whether an adoption order should be made. The social worker has an important role. So do others in exercising their rights and discharging their obligations under the statutory process. The applicants provide relevant information concerning their family situation , their health, their financial circumstances and their reasons for wanting to adopt the child. The social worker furnishes a report and is entitled to take part at the hearing of the application. Anything known to the Police about the character of the applicants is
   also conveyed to the adoption court. The adoption court is required to consider any report which the social worker may furnish (s10(1)). It is not obliged to accept the report or its recommendations. The court makes its own assessment of all the material including any oral evidence and cross-examination. It is the court which must be satisfied that the requirements of ss4 and 11 are met and the necessary consents have been given or should be dispensed with (ss7 and 8).
   The natural parent may impose a condition with respect to the religious upbringing of the child (s11(c)) but in a closed stranger adoption is not otherwise involved in the assessment by the adoption court under s11 as to whether the applicants are suitable adoptive parents (s11(a)) and whether the welfare and interests of the child will be promoted by the adoption (s11(b)). The comprehensive consent provisions have special features designed to show on their face that informed consent has been given: the 10 day waiting period after the birth of the child before the consent document is signed; the form of consent with its explanation of the effects of an adoption order; and the certificate by an independent solicitor or statutory officer that he or she has personally explained the effect of an adoption order to the person giving consent, who appeared fully to understand the same. The social worker does not have a direct statutory role in the giving of consent and the legislation proceeds on the premise that consents completed in accordance with the statutory requirements and filed in the court are valid and effective.
   There is nothing in the legislation to indicate a Parliamentary purpose to create actionable obligations. On the contrary, to impose a common law duty of care on social workers involved in that process and on the department would cut across that statutory regime. The adoption court makes the ultimate decision. Social workers see the parties and assess the prospects for successful adoption. The social worker contributes to the information before the court, but the report is not accorded any statutory primacy when the adoption court is deciding whether or not to make an interim order or adoption order.
   Further, to allow a claim in negligence would undermine the intended finality of the adoption. The legislation does not contemplate any subsequent performance appraisal of the adoptive parents or of the wellbeing of the child. Any claim in negligence would constitute an indirect attack on the adequacy of the statutory process and the integrity of the adoption order. It would be extraordinary if a claimant could allow the adoption to stand unchallenged, including in the case of the mother the validity of her consent, but still seek damages on the footing that the adoption order should not have been made and her consent was induced by material misrepresentations. And it would be inconsistent with the deliberately narrow remedies and sanctions provided in the statute (s12 for revocation of an interim order, s20 for variation and discharge of an adoption order, and s27(1)(f) for making a false statement for the purpose of obtaining or opposing an interim order or adoption order). The application for the discharge of an adoption order requires the prior
   approval of the Attorney-General and no adoption order or adoption can be discharged unless it was “made by mistake as to a material fact or in consequence of a material misrepresentation to the court or to any person concerned”. As the authorities under the section show, a long time lapse is not a bar, but it is only in those narrow circumstances that the integrity of the adoption can be challenged. The need to obtain the approval of the Attorney-General to make the application and the existence of an ultimate discretion in the court to refuse the application reinforce the legislative intent to circumscribe challenges to adoption. Significantly, too, the offence provisions of s27(1)(f) provide a limited sanction (3 months imprisonment and a fine not exceeding $100) for making a false statement for the purpose of obtaining or opposing an interim order or an adoption order.
   Finally, the secrecy provisions do not envisage the disclosure of what would be essential information in determining negligence suits. Section 23 provides a narrow exception to the general unavailability for production or inspection of adoption records. The exception is that the court may make an order (a) for the purposes of a prosecution for making a false statement, or (b) in the event of any question as to the validity or effect of an interim order or an adoption order, or (c) “on any other special ground”. Statutory powers must be exercised in accordance with the policy and purpose of the legislation. Given the statutory emphasis on confidentiality and secrecy of adoptions and the special grounds designated in (a) and (b), it would seem impossible to justify making an order under (c) to support private, civil litigation, necessarily undermining the adoption.
   The second set of policy considerations pointing against recognising a duty of care can be summarised very shortly. They are less significant in the overall assessment than the considerations to be drawn from the adoption legislation which we have been discussing, but they are still important in public policy terms. If a principal cause of the child’s problems as they emerge over the years can be ascribed to bad parenting it is incongruous to allow a suit against a secondary party but not against the parents, whether adoptive or natural – and it was not suggested that the child could bring such a suit in negligence against parents. And if for public policy reasons a child cannot sue the social worker and the department there could be no policy justification for allowing the natural mother to sue on learning of the child’s problems while leaving the adoption unchallenged. Further, the imposition of the duty of care contended for could not sensibly be confined to social workers and the department. Others involved in the adoption process (apart from the court which is the effective decision maker) could scarcely be excluded. The consequences for the public interest would in our view be unacceptably expansive.
   As well, there are fair trial considerations. Disentangling factors that contributed to the decision of the adoption court, usually long after the event, and determining to what extent the adoption court was influenced by the alleged negligence of the social worker would be difficult, if not often impossible. Causation, including
   weighing the respective influences of nurture and nature in shaping the child and affecting his or her life prospects, and quantification of any loss are likely to be highly speculative, if indeed justiciable. Finally, there are other systems of accountability for performance by social workers of their professional responsibilities and for maladministration of the department. Standard public law remedies apply in respect of the exercise of statutory powers. Departments are subject to ministerial and parliamentary oversight. Social workers are subject to departmental disciplinary regimes. Complaints may be made to the Ombudsman.
   For these reasons we would hold that the claims in negligence as pleaded by Mr Prince and Ms Gardner do not lie and should be struck out.
   Breach of fiduciary duty
   The respondents have pleaded that the social worker and the department owed Mr Prince “fiduciary duties” to act at all times in his “best interests” and to “act with the utmost good faith towards him”. A breach is pleaded, but the particulars of the breach repeat the particulars given for breach in negligence. There are no allegations of bad faith expressed or implicit in those particulars. In the absence of such particulars we do not consider that the cause of action can be sustained. It is also struck out.
   The 1983 complaint: the pleadings
   The duty of care and the circumstances giving rise to it are pleaded as follows:
   21. AT about the end of 1983 Jane Richards of Auckland advised the Department of Social Welfare (hereinafter called “DSW”) that neither Mr Prince nor Mrs Prince was looking after the First Plaintiff or was prepared to look after him.
   22. DSW did nothing.
   23. THE First Plaintiff thereafter, although still a young person, had to look after himself as best as he could, and thereafter mixed in inappropriate circles and became for a time a “street kid”.
   24. DSW, in its failure to do anything about the advice it received as referred to in paragraph 21 above, was negligent.
   Particulars
   (1) It failed to investigate the complaint adequately or at all.
   (2) It made no attempt to exercise its powers under the Children and Young Persons Act 1974.
   (3) It failed to take any steps to ensure that the First Plaintiff was adequately housed, educated, and cared for.
   The statement of claim goes on to aver that as a consequence of that negligence Mr Prince’s life was seriously and detrimentally affected in the ways specified, which were summarised earlier in the judgment. The parallel cause of action for breach of fiduciary duty requires no elaboration for present purposes. For its part the statement of defence avers that the department has no or insufficient knowledge of the factual allegations contained in those paragraphs of the statement of claim and denies the existence of a duty of care or a fiduciary duty to Mr Prince in the circumstances pleaded.

   The Children and Young Persons Act 1974
   The Department of Social Welfare Act 1971 which established the department (s3), (by subsequent amendment) charged the department with the administration of the Children and Young Persons Act 1974 under the control of the Minister (s4(1)(a)) and required the department to provide such social welfare services as the Minister from time to time directed (s4(2)(b)). The Director-General had wide powers of delegation (s12) and the Act provided for the appointment of such officers and employees as social workers as might be necessary for the effective and efficient carrying out of the functions of the department (s8).
   The Children and Young Persons Act 1974 has been replaced by the Children, Young Persons and Their Families Act 1989, but the 1983 events have to be considered under the framework of the 1974 Act. The purpose of the 1974 Act , as stated in the long title, was “to make provision for preventive and social work services for children and young persons whose needs for care, protection, or control are not being met by parental or family care and who are, or are at risk of becoming, deprived, neglected, disturbed, or ill-treated, or offenders against the law”.
   By s3, the objects of the Act were:
   (a) To promote the well-being of children and young persons by assisting individuals, families, and communities to overcome social problems with which they are confronted:
   (b) To promote the welfare of the family, to reduce the incidence of disruption of family relationships, and to mitigate the effects of such disruption where it occurs:
   (c) To assist parents in the discharge of their parental responsibilities:
   (d) To encourage co-operation between agencies (whether administered by the Crown or not) whose activities directly affect the well-being of the community and its children or young persons:
   (e) To establish and promote, and to assist in the establishment and promotion of, services and facilities within the community designed to advance the well-being of children and young persons; and to co-ordinate the use of such services and facilities.
   A “young person” is a boy or girl of or over the age of 14 but under 17 (s2(1)). In December 1983 Mr Prince as a 14 year old was a young person.
   By s4:
   Any Court which or person who exercises in respect of any child or young person any powers conferred by this Act shall treat the interests of the child or young person as the first and paramount consideration to the extent that this is consistent with adopting a course calculated to –
   (a) Secure for the child or young person such care, guidance, and correction, as is necessary for the welfare of the child or young person and in the public interest; and
   (b) Conserve or promote as far as may be possible a satisfactory relationship between the child or young person and other persons (whether within his family, his domestic environment, or the community at large).
   Section 4A goes on to require any court or person in applying s4 to have regard to the principle that every young person is entitled, unless the Act otherwise expressly requires or unless it is impracticable, to live in the association of that young person’s culturally recognised family group.
   Section 5 imposed positive duties on the Director-General:
   (1) It shall be the duty of the Director-General to take positive action and such steps under this Act as in his opinion may assist in preventing children or young persons from being exposed to unnecessary suffering or deprivation or from becoming seriously disturbed or from committing offences.
   (2) In pursuance of the duty imposed on him by subsection (1) of this section the Director-General shall arrange –

   (a) For prompt inquiry where he knows or has reason to suspect that any child or young person is –
   (i) Suffering or likely to suffer from ill-treatment or from inadequate care or control; or
   (ii) By reason of his behaviour, causing serious concern to his parents, guardians, or teachers:
   (b) For the provision of such assistance, whether financial or otherwise, as the Director-General considers reasonable to any parent, guardian, child, or young person or to the person for the time being having the care of the child or young person where, in the opinion of the Director-General, such assistance is likely to assist in overcoming deficiencies in the care of the child or young person or to improve the behaviour of the child or young person:
   (c) For inquiry into any allegation that any child or young person who is being cared for, whether by the day or intermittently or continuously, away from his parents or guardians is not being properly cared for or is being cared for under conditions that are not suitable for his training or development.
   By s27(1):
   Any member of the Police or any Social Worker who reasonably believes that any child or young person is in need of care, protection, or control may make a complaint under this section requiring the child or young person to be brought before a Children and Young Persons Court to have the matter heard and determined in accordance with the provisions of this Act.
   A young person is considered in need of care, relevantly for present purposes, if:
   (a) His development is being avoidably prevent[ed] or neglected; or
   (b) His physical or mental health, or his emotional state, is being avoidably impaired or neglected; or
   (c) He is being, or is likely to be, neglected or ill-treated; or
   (d) His parent or guardian or the person for the time being having care of him, –
   (i) Has failed or is failing to exercise the duty and care of parenthood; or

   (ii) Is unable or unwilling, to carry out the duty and care of parenthood.
   Social workers and police could seek warrants to search for young persons and to ascertain whether there were any grounds for making a complaint under s27 where there was reasonable ground for suspecting that a young person was being ill-treated or “neglected in a manner likely to cause unnecessary suffering or [was] living in an environment injurious to his physical or mental health” (s7). At the next step after a complaint had been made they could seek warrants to remove young persons from their surroundings where there was reasonable ground for believing that the young person was likely to be neglected or subject to inadequate care or control (s28(1)).
   Before the court made an order following a finding that a complaint had been proved it was required to have available and consider a social worker’s report on the circumstances of the case and personal details of the young person and his or her parentage, family situation and background as might be of assistance to the court in determining the most suitable method of dealing with the young person (s41(3)). Any social worker furnishing a report under the section was not under any civil or criminal liability in respect thereof “unless he [or she] had acted in bad faith or without reasonable care” (s41(8)). On finding the grounds of the complaint proved the court could make an order placing the young person under the guardianship of the Director-General or under the supervision of a social worker (s31(1)(d)).
   To sum up, the 1974 Act was welfare legislation in which the interests of the child or young person were the first and paramount consideration. The statute reflected significant policy changes in the roles and responsibilities of the department and social workers when compared with the replaced legislation, the Child Welfare Act 1925 and the Infants Act 1908. The statement of objects (s3), the focus on the interests of the child (ss4 and 4A) and the imposition of duties on the Director-General to take preventive action and to investigate complaints of neglect were all new; and so, too, was the Children and Young Persons Court (see Trapski’s Family Law Vol I para 1-5, NT 1.01-1.07). The Act contemplated intervention by the State, between the young person on the one hand and the parents on the other. The powers of social workers were broadly defined and their exercise and the discharge of the duties imposed on the Director-General and social workers called for sensitivity and judgment.

   The 1983 complaint: a duty of care
   On the argument of the appeal the appellant sought leave to adduce affidavit evidence of two departmental officers as to the resource implications and the effect on social worker practices of potential liability in negligence. Apart from the timing of the application and the inappropriateness on a striking out application of receiving factual and opinion material that the respondents would dispute, that proposed material was directed in the main to the 1989 legislation and the current position. But the focus in the present inquiry is necessarily on whether the department owed a duty of
   care to Mr Prince when responding or failing to respond to the complaint alleged to have been made to it in 1983.
   The philosophy and thrust of the 1989 legislation are different. Significantly s5 of the 1974 Act has been replaced by diffuse and diluted investigation provisions far different from the positive duties under s5. As well, public sector processes have been substantially affected by legislative and organisational reforms of the last decade. The detailed guidelines introduced by the Children and Young Persons and Their Families Service during the last year for responses to situations of alleged abuse or negligence obviously cannot simply be transposed back to 1983. And, unlike the statute in the Bedfordshire case, the 1974 Act did not provide for social service functions to be exercised in accordance with such directions as might be given by the Secretary of State. And so any (as yet undisclosed) guidelines existing in 1983 lacked statutory force.
   It may be accepted that in 1983 social workers could be expected to exercise judgment when considering complaints received, assessing the situation of the young person, and determining the urgency of any response. It may be accepted that acting in the best interests of the young person the department would also seek to avoid unnecessary intrusion on the family. But the first difficulty in the present striking out is that in terms of the pleadings the case cannot be characterised as one of total failure to consider the alleged complaint – the allegation is of failure to investigate the complaint “adequately or at all”. There is no basis for determining striking out on the footing that it is necessarily a pure omission case, or that the Director-General or a social worker exercised any particular judgment. It cannot be predicated that the department made any particular decision in relation to the complaint, let alone that the decision was not outside the ambit of discretion granted to the department and social workers by the legislation. The pleadings are wide enough to cover simple administrative carelessness or an absence of any real exercise of any professional discretion. These considerations suggest that a sharp focus on the facts proved at trial is a more appropriate means of determining whether there is a duty of care than considering every factual possibility across the wide spectrum of these pleadings.

   Proximity
   The two broad fields of inquiry in determining whether it is just and reasonable to recognise a duty of care in new situations are the degree of proximity or relationship between the alleged wrong-doer and the person who has suffered damage, and the assessment of other policy considerations bearing on the existence of a duty of care in that class of case.
   Proximity was, it seems, accepted by the Crown in the High Court. However on the argument of the appeal it was submitted that the degree of proximity was insufficient considered on the basis of analogy with decided cases, competing moral claims and an absence of assumed responsibility towards Mr Prince as a 14 year old young person.
   The substantial argument to the contrary which we prefer may be put very shortly. Governmental agencies discharging statutory functions are often performing professional tasks. The Department of Social Welfare Act 1971 provides for the appointment of such social workers as necessary for the effective and efficient carrying out of the functions of the department. The 1974 Act is directed to the care and protection of children and young persons. The class of persons for whom the statutory protection was enacted is clear. The discharge of the particular function calls for the exercise of special social work skills and responsibilities. There is a professional relationship between social worker and client child or young person. Children and young persons are seen as vulnerable. Because of their youth and immaturity they cannot assert their own rights and needs. Others must do it for them. Just as it is right that the department and its professionals have a generalised duty under the statute to promote the wellbeing of children and young persons (s3), so, too, when exercising their statutory powers in respect of a particular child or young person they assume a responsibility to that child or young person (s4). And the duty to consider a complaint of neglect is specific to the particular child or young person, the subject of the complaint (s5). While a deprived child or young person may have no particular expectation that the department will seek to assist him or her, given general community expectations reflected in the statute it is not unreasonable to conclude that a child or young person is to be regarded as implicitly relying on the department and its officers to consider complaints that they are in need. Finally, it is readily foreseeable that inadequate consideration of complaints that a young person is neglected might cause harm. A young person who is the subject of the complaint is directly within the contemplation of the departmental officer receiving the complaint. The complaint here was that this 14 year old was neglected or likely to be neglected by his parents. In such a case the officer must have known that failure to give adequate consideration to the complaint and take any appropriate action might increase the risk of harm. For its part the department is not in a position to say that the imposition of a duty of care would expose the officer and the department to a burden out of proportion to their moral culpability.

   Wider policy considerations
   The 1974 Act is the starting point. It sets the framework within which the department carries out its functions and the department and social workers discharge their duties and exercise their powers. The positive duties imposed by s5 are of central importance. It is the duty of the Director-General “to take positive action and such steps under this Act as in his opinion may assist in preventing children or young persons from being exposed from unnecessary suffering or deprivation”. The Director-General is required to be pro-active in preventing children and young persons from suffering harm. He or she is also required to take appropriate steps under the Act to attain that end with the decision as to which of those steps to take being a matter for the Director-General’s judgment. In pursuance of that duty s5(2) requires the Director-General to “arrange … for prompt inquiry where he knows or has reason to suspect that any child or young person is … suffering or likely to suffer from … inadequate care or control” (para (a)). The subsection also requires the Director-General to inquire into any allegation that a young person who is being cared for away from his or her parents or guardian is not being properly cared for (para (c)).
   Those specific duties cannot be put aside or excused as if they were generalised duties to the community at large. The duty contended for here arises only when a specific complaint is made to the department in relation to a particular young person. They are matters of obligation, not the exercise of discretionary power.
   The stated purpose of the Act is to provide for the care and protection of children at risk. The department is charged with the administration of the Act and by necessary implication is responsible for establishing and maintaining systems and processes to enable it to perform its statutory functions and duties and exercise its statutory powers and within that framework facilitate the exercise by its social workers of their statutory responsibilities and powers. That being so it is also argu

   Comment by MurrayBacon — Mon 26th May 2014 @ 5:17 pm

2. 

   arguable that the department was required to develop processes to allow for the proper and timely consideration of allegations that children or young persons were being neglected or at risk in order to respond to any allegations under s5(2)(c) and to determine whether the threshold requirement of s5(2)(a) was met, namely that the Director-General or a social worker carrying a delegated responsibility “knows or has reason to suspect” that the young person concerned has suffered from or was likely to suffer from inadequate care or control. If that threshold is met the Director-General is required to arrange for prompt inquiry. If the result of that inquiry, supported as it is by the power to seek warrants under s7, (or of the inquiry under para (c)), is that a social worker “reasonably believes” that the young person is “in need of care” as that expression is relevantly defined in s27(2), the social worker may make a complaint under the section requiring the young person to be brought before a Children and Young Persons Court. Other steps may be taken to deal with the situation where it is reasonably believed that a young person is in need of care, e.g. providing financial or other assistance to a care giver to assist in overcoming deficiencies in the care (s5(2)(b)), and seeking a warrant to remove the young person from his or her surroundings (s28(1)) and thereafter following the statutory steps. But the statute does not contemplate that nothing at all need be done by the department where its responsible officer reasonably believes that the young person is in need of care. The complaint proceedings could result in the young person being placed under the guardianship of the Director-General or under the supervision of a social worker and the statute also contemplates earlier removal of a young person from an unsatisfactory environment. It follows that the responsiveness of the department and its systems to an allegation of neglect is a crucial step in the statutory process.

   That statutory scheme does not lead inevitably to a conclusion that there was a common law duty of care to take proper steps to investigate allegations of neglect and thereafter to take such further and successive steps as the circumstances required. The question is whether it is just and reasonable to superimpose a common law duty of care on the department in relation to the performance of its statutory responsibilities for the protection and care of children and young persons. But, given the conclusion that proximity is satisfied, the statutory framework within which the department and its social workers act is consistent with the imposition of a common law duty of care. The narrow argument is that liability may arise where the person charged with the responsibility either unreasonably fails to carry out the duty to consider the matter or reaches a conclusion so unreasonable as to show failure to do its duty.

   Given the important features of the 1974 Act which we have been emphasising, it cannot be said that a common law duty of care in these terms would cut across the whole statutory scheme. At that early triggering step a specific positive duty rests on the Director-General. At that step it does not require participation with other agencies. The duty suggested does not conflict with any other duty by the department and its officers. On the contrary it enhances it.

   In the Bedfordshire case Lord Browne-Wilkinson at p739 emphasised that the question whether there is a common law duty, and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done. In the various respects we have been discussing the Children and Young Persons Act 1974 is clearly distinguishable from the statutes before the House of Lords in the Bedfordshire case and the statutes under consideration in the large number of cases (but few in the child protection field) canvassed in argument. Little is to be gained from a point by point comparison. Also, the rescue cases are not comparable because in those cases any statutory framework was very different from the 1974 Act.

   There are other policy considerations to be considered although we would not weigh them as heavily in this case as the scheme and policy of the 1974 Act. First, the difficulty and delicacy of the social worker’s task and its judgmental nature are relevant. Intrusion into the family has to be handled with tact in the interests of the child or young person. The social worker must also have regard to the advantages of not disrupting the family environment and to the advantages and disadvantages of other options for the care of the young person. Clearly a plaintiff would have difficulty in establishing that an assessment made by a social worker fell outside the bounds sanctioned by professional opinion. Nevertheless considerations of that kind cannot absolve the department and social workers from the responsibility of considering and responding to specific complaints with professional skill and care.

   Next, the Solicitor-General submitted that the imposition of a duty would or could cause the department and social workers to adopt a more cautious and defensive approach to their duties. He drew our attention to a considerable body of professional literature on that point and to the recognition of it in the Bedfordshire case (see also Barrett v Enfield London Borough Council [1997] 3 WLR 628, 636 and 638). But like lawyers and doctors, social workers are professionals. At that triggering step (and at other steps) they should be expected to have shouldered willingly a standard of reasonable skill and care that their private sector counterparts were expected to discharge. And in the absence of any data as to potential claims based on the roles and responsibilities of the department and social workers under the 1974 Act, which was replaced eight years ago by a very different legislative scheme, it would be unwise to give any particular weight to the resource implications of allowing for a common law duty of care.

   Finally, and as pointing against the imposition of a duty, there are the obvious difficulties of reaching conclusions as to causation and damages. Clearly any such claims would be very difficult to establish. That in itself cannot, we think, be adequate justification for ruling out the possibility of any claim for negligence whatever the circumstances.

   For these reasons, on the pleadings as they stand, we would not strike out the cause of action in negligence.

   The 1983 complaint: breach of fiduciary duty

   Anderson J accepted there was a fiduciary relationship between the department and Mr Prince as a child and then as a young person, but he concluded in effect that there was no describable fiduciary duty to match the arguably present common law duty of care in receiving and responding to the complaint that Mr Prince as a young person was at risk.

   The duty of the fiduciary, here the department, is to act in the child or young person’s best interest and with the utmost good faith towards that child or young person. Essentially for the same reasons as apply in respect of the cause of action in negligence, we consider that the matter should be allowed to go to trial to allow the factual concerns and considerations to be investigated.

   Result

   The appeal and cross-appeal are allowed, each only in part. The court is unanimous as to the adoption issues and in the result the causes of action pleaded by Mr Prince and Ms Gardner are or remain struck out. As to the 1983 complaint and in
   accordance with the views of the majority the causes of action pleaded survive the striking out application.

   If any questions of costs arise counsel may submit memoranda.

   Solicitors:

   Crown Law Office, Wellington, for appellant

   Judith Collins & Associates, Auckland, for respondents

   IN THE COURT OF APPEAL OF NEW ZEALAND CA 192/96

   BETWEEN THE ATTORNEY-GENERAL

   Appellant

   AND R D PRINCE and R V GARDNER

   Respondents

   Coram: Richardson P
   Henry J
   Thomas J
   Keith J
   Tipping J

   Hearing: 10 and 11 September 1997

   Counsel: Solicitor-General J J McGrath QC and W G Liddell for Appellant
   R S Chambers QC for Respondents

   Judgment: 25 November 1997

   __________________________________________________________

   JUDGMENT OF HENRY J

   __________________________________________________________

   I have had the advantage of reading in draft the judgment of Richardson P. As regards all the causes of action which relate to the adoption proceedings I am in agreement with the conclusions and reasons expressed and have nothing to add. I have however reached a different conclusion in respect of the two causes of action based on the allegation that nothing was done in response to a complaint made in late 1983 that neither of Mr Prince’s adoptive parents were looking after him, and were not prepared to do so. The causes of action are based on negligence and breach of fiduciary duty. The factual background alleged in the pleading is set out in Richardson P’s judgment, and need not be repeated. It foreshadows establishment at trial of a deprived and distressing childhood. Mr Prince would have been 14 years of age at the time the complaint now in question was made to the Department of Social Welfare. For what to my mind are understandable reasons, there is no cause of action alleging breach of statutory duty in respect of this matter.

   Negligence

   The issue before this Court is whether the pleading discloses that Mr Prince was owed a common law duty of care. The relevant paragraphs in the statement of claim are:

   21. AT about the end of 1983 Jane Richards of Auckland advised the Department of Social Welfare (hereinafter called ‘DSW’) that neither Mr Prince nor Mrs Prince was looking after the First Plaintiff or was prepared to look after him.

   22. DSW did nothing.

   23. THE First Plaintiff thereafter, although still a young person, had to look after himself as best as he could, and thereafter mixed in inappropriate circles and became for a time a ‘street kid’.

   24. DSW, in its failure to do anything about the advice it received as referred to in paragraph 21 above, was negligent.

   Particulars

   (1) It failed to investigate the complaint adequately or at all.

   (2) It made no attempt to exercise its powers under the Children and Young Persons Act 1974.

   (3) It failed to take any steps to ensure that the First Plaintiff was adequately housed, educated, and cared for.

   25. AS a consequence of that negligence, the First Plaintiff’s life was seriously and detrimentally affected in that, in his crucial teenage years, he:

   (a) had no home or home life;

   (b) had no adult caring for him in any way;

   (c) had no one responsible for his continued education and guidance;

   (d) eventually ended up in prison;

   (e) suffered impairment of his personal and intellectual development;

   (f) suffered emotional abuse.

   The breaches of duty can only be sourced to the Children and Young Persons Act 1974, and in essence the claim is for unreasonably failing to exercise statutory
   powers, or perhaps for exercising them without due care. The scheme and the relevant provisions of the Act are helpfully set out in Richardson P’s judgment, and it is sufficient for my present purpose to refer, but in that context, to s5(1) and (2) and to s27(1) which provide:

   S5(1) and (2)

   (1) It shall be the duty of the Director-General to take positive action and such steps under this Act as in his opinion may assist in preventing children or young persons from being exposed to unnecessary suffering or deprivation or from becoming seriously disturbed or from committing offences.

   (2) In pursuance of the duty imposed on him by subsection (1) of this section the Director-General shall arrange –

   (a) For prompt inquiry where he knows or has reason to suspect that any child or young person is –

   (i) Suffering or likely to suffer from ill-treatment or from

   inadequate care or control; or

   (ii) By reason of his behaviour, causing serious concern

   to his parents, guardians, or teachers:

   (b) For the provision of such assistance, whether financial or otherwise, as the Director-General considers reasonable to any parent, guardian, child, or young person or to the person for the time being having the care of the child or young person where, in the opinion of the Director-General, such assistance is likely to assist in overcoming deficiencies in the care of the child or young person or to improve the behaviour of the child or young person

   (c) For inquiry into any allegation that any child or young person who is being cared for, whether by the day or intermittently or continuously, away from his parents or guardians is not being properly cared for or is being cared for under conditions that are not suitable for his training or development.

   S27(1)

   Any member of the Police or any Social Worker who reasonably believes that any child or young person is in need of care, protection, or control may make a complaint under this section requiring the child or young person to be brought before a Children and Young
   Persons Court to have the matter heard and determined in accordance with the provisions of this Act.

   A young person is considered in need of care, relevantly for present purposes, if:

   (a) His development is being avoidably prevent[ed] or neglected; or

   (b) His physical or mental health, or his emotional state, is being avoidably impaired or neglected; or

   (c) He is being, or is likely to be, neglected or ill-treated; or

   (d) His parent or guardian or the person for the time being having care of him, –

   (i) Has failed or is failing to exercise the duty and care of

   parenthood; or

   (ii) Is unable or unwilling, to carry out the duty and care of

   parenthood.

   The assertion is that the powers (or duties as they are framed in s5) should have been exercised in such a way as to prevent the detrimental consequences that are set out in para 25 of the Statement of Claim. That assertion recognises the basic formulation of the duty of care in the tort of negligence – a duty to take reasonable care to avoid foreseeable harm. It is, in my view, important at the outset of the inquiry to identify the duty being propounded. Put shortly, the duty contended for here is to take reasonable steps by exercising statutory powers to terminate the inadequate care and control to which Mr Prince was then subjected. In my view it is inappropriate to confine consideration to the issue of inquiry into a complaint. It is Mr Prince’s case that steps should have been taken to protect him. It must follow that the contention is there was a duty to protect. Performance of the duty would require inquiry as a first step, but also required would be subsequent action if protection was to result. On its own, failure to inquire is insufficient and, in the absence of a failure to take reasonable consequential follow up action, falls short of establishing entitlement to damages. Section 5(2) itself recognises that the duty to inquire promptly is one to be exercised in pursuance of the overall duty imposed by subs (1), and is therefore part of it.

   Although proximity in relationship as between the Department and Mr Prince in the sense required for the tort of negligence was argued in this Court, I am satisfied that the test is met in the circumstances, again for the reasons set out by Richardson J. The crucial enquiry there is whether wider policy considerations are such that it is just and reasonable to impose this duty of care. As I understand the position, it is common ground that there is no comparable New Zealand case where such a duty has been imposed, and the question is whether this extension should be recognised.

   I accept that the question must be considered on the assumption that there may be justiciable issues, for example a failure to consider the complaint at all, or the unreasonableness of the failure to take steps to remove Mr Prince from the care of his adoptive parents. I also accept that the enquiry must be on ‘a worst case scenario’, and if the appellant is to succeed it will be because the conclusion is that whatever was done or was not done in this case (matters presently unknown), no duty is imposed. In this context the true factual situation would seem to be relevant to the question of breach, rather than existence, of a duty of care.

   The procedures available to the Department to provide protection for a child or young person in a case such as the present are important. If the result of an inquiry is that a social worker reasonably believes the child or young person is in need of care, a complaint may be made under s27. If complaint is made, there is a Court hearing. The Court is empowered to appoint the Director-General as guardian of the child or young person, or to place the child or young person under the supervision of the Director-General. Removal from the care and control of parents is in the hands of the Court. Procedural requirements are laid down, including the need for a report from a social worker (s41), and in the case of a child a probable initial referral to the Children’s Board (s27(2A)). The importance of this framework, which includes the possible involvement of police, teachers, doctors and others, is twofold. First, it demonstrates that the avoidance of harmful consequences such as those pleaded here involves a carefully constructed and integrated process, resulting ultimately in the Court taking the final necessary steps in the exercise of a discretion. Second, if a duty of care is imposed on the Department, it would be logical to apply it not only to the specific obligations in s5(2)(b) and (c), but also to the general obligations set out in s5(1) and to other statutory duties or powers given for the purpose of ensuring protection of children and young persons who are in need of care and control.

   So far as the Department is concerned, it is significant that under s5(1) the duty of the Director-General is to take such positive action and steps under the Act as in his opinion may assist in preventing certain consequences. That wording would seem to detract from the argument for grafting a common law duty of care on to the statutory powers.

   There are several factors which in my view point strongly against the imposition of this particular duty, namely

   (1) removing or remedying the status of being in need of care protection or control lies ultimately with the Court, a process which involves inter disciplinary input;

   (2) there are likely to be difficult areas of judgment and evaluation, with a possible need for prompt decisions on those;

   (3) conflicting interests may require consideration;

   (4) potential tortfeasors may act defensively, to the possible ultimate detriment of the young person;

   (5) the problems of linking the damage claimed to any breach of duty must be substantial, if not in many cases overwhelming;

   (6) breaches of duty are likely to be historical, with resulting difficulties in ascertaining the relevant facts;

   (7) the width of the duty.

   As against those, factors which justify the imposition of the duty include:

   (1) the need to provide a remedy for a wrong – the wrong being the failure to carry out a statutory obligation;

   (2) the lack of alternative accountability on the part of those entrusted with the statutory duties – those suggested by the appellant, namely recourse to judicial review or by way of complaint to the Ombudsman, appear to be of marginal value; the significance of the Office of Commissioner for Children under the 1989 Act must be doubtful;

   (3) public expectation, which is probably closely associated with accountability.

   I accept that these three are significant, and cannot be treated lightly. However when weighed in the overall balance, they do not lead me to the conclusion that it is just and reasonable to impose the duty I have tried to identify. In reaching this conclusion, I am also mindful that in this particular case all that is contended is that
   express statutory powers have not been exercised, either at all or with care. Yet it is accepted that an action for the tort of breach of statutory duty does not lie. Of course that is not and cannot be determinative. It is however in my view relevant when the whole scheme of the legislation is considered.

   It is important to remember that we are concerned not with negligent acts or omissions incidental to carrying out the statutory duties or powers, but with carrying them out in a negligent manner, including a negligent failure to carry them out at all. The distinction is important, because if the claimed common law duty is not recognised, it does not mean that all careless conduct is protected from civil liability. For example a social worker would be civilly liable if a young person’s property was damaged as a result of the worker’s negligent driving of a motor vehicle when transporting the young person in the course of assisting in the execution of a warrant obtained under s28(1).

   I return to what I consider to be a proper identification of the common law duty, which highlights its extreme nature. Mr Prince is seeking damages for in effect having suffered bad parenting after 1983, something for which his parents are not liable. I am not persuaded that the Act was seen as creating such a liability on the part of the Department and its officers. It is also a liability which for compensation purposes must exclude personal injury, even though personal injury will frequently be a feature of the lack of care envisaged by the Act as requiring attention. Ill-treatment certainly includes the infliction of personal injury, and is something expressly covered in the very provision relied upon (s5(2)(a)(i)). Yet liability for personal injury was removed only two years previously by the 1972 Accident Compensation legislation. It would seem unlikely that in 1974 a new but limited liability for harm, likely to be extremely difficult to separate out from personal injury in many cases, was envisaged. The overall indications are, in my judgment, to the contrary.

   In the course of argument some reliance was placed on s41(8) of the Act as indicating common law liability for negligence at least on the part of a social worker, was envisaged. It states:

   Any Social Worker who furnishes, and any principal or head teacher who supplies, any report under this section shall not be under any civil or criminal liability in respect thereof unless he has acted in bad faith or without reasonable care.

   It was introduced by the 1982 amendment. The reason is not evident from a reading of the Parliamentary Debates. I do not think it lends weight to the argument in favour of imposition of the duty. Under s41(7) a social worker can, or can be required by a Judge, to report in respect of a complaint under s27. The social worker can for this purpose obtain information from a principal or head teacher. The subsection does not purport to create any criminal liability. Neither does it purport to create civil liability. It simply gives protection unless there has been bad faith or lack of reasonable care. Any cause of action in the civil area must be found elsewhere. Examples could be defamation and disclosure of confidential information. The provision is entirely consistent with the absence of a common law liability attaching to
   the powers and duties imposed by the Act including the provision of a report by a social worker – indeed it could hardly have application to such a liability, which by definition envisages the absence of reasonable care.

   I have not found it necessary to embark on a consideration of the case law – the issue is really to be determined on a consideration of the statute itself. Cases such as X (Minors) v Bedfordshire County Council [1995] 2 AC 633 are helpful but of limited assistance when it comes to an evaluation of the New Zealand 1974 Act, and what is or is not to be seen as an appropriate extension of existing duty of care situations. In my judgment it is not just and reasonable to impose on the Department an actionable duty of care of the kind presently proposed.

   Fiduciary Duty

   There is an alternative claim based on breach of fiduciary duty. In the particular circumstances I do not think that can succeed. Again, the only allegations are the same as those pleaded in the claim for negligence. Bad faith as such, evidence of which would have to be available to a plaintiff before it can properly be pleaded, is not alleged. In my judgment the present allegations cannot found an action based on breach of fiduciary duty. Even assuming the Department comes into a fiduciary relationship with every child or young person who comes under its jurisdiction, the existence of that relationship cannot impose duties of care which are not otherwise actionable under the general law.

   Conclusion

   For the above reasons I would strike out all causes of action.

   Solicitors

   Crown Law Office, Wellington, for Appellant

   Judith Collins & Associates, Auckland, for Respondents

   IN THE COURT OF APPEAL OF NEW ZEALAND CA 192/96

   BETWEEN THE ATTORNEY-GENERAL

   Appellant

   AND R D PRINCE and R V GARDNER

   Respondents

   Coram: Richardson P
   Henry J
   Thomas J
   Keith J
   Tipping J

   Hearing: 10 and 11 September 1997

   Counsel: Solicitor-General J J McGrath QC and W G Liddell for Appellant
   R S Chambers QC for Respondents

   Judgment:

   __________________________________________________________

   JUDGMENT OF TIPPING J

   __________________________________________________________

   When a defendant carelessly causes foreseeable harm to a plaintiff, the law must decide whether the defendant should compensate the plaintiff for the harm caused. That question depends on whether the defendant owed the plaintiff a duty to exercise reasonable care to avoid that harm. How then does the law decide whether a duty of care was owed in the particular circumstances?

   The primary considerations are proximity and policy. If statutory provisions are responsible in whole or in part for placing the plaintiff and the defendant in a relationship of sufficient proximity, those provisions will be an important ingredient in deciding whether in policy terms the relationship so created supports the existence of a common law duty of care. So it is in this case. We are concerned with relationships created in two statutory environments; first the Adoption Act 1955 and second the Children and Young Persons Act 1974.

   I agree with the conclusion arrived at by Richardson P, and for the reasons he gives, that all the causes of action arising out of the adoption of Mr Prince in 1969 must be struck out. The overriding consideration of policy on this aspect of the case is that, subject to the terms of the Adoption Act itself, adoptions are intended to be final, for better or for worse. The Act does not grant, and implicitly militates against, challenges direct or indirect to the adoption itself, or to the process by which it was brought about, by means of the tort of negligence. Thus Mr Prince has no cause of action in tort for the harm he claims to have suffered as a result of the alleged negligence of the social worker or workers involved in his placement for adoption.

   Similarly, Ms Gardner has no cause of action for the harm she claims to have suffered because she was given what she says was erroneous information about the parents who would adopt her baby son. While at first glance her claim for negligent misstatement might be thought to fall within conventional Hedley-Byrne principles, the case is novel in relation to the nature of the damage she claims to have suffered; and in any event the identified policy consideration of finality overwhelms whatever prima facie entitlement to relief she may be thought to have. The claims for breach of fiduciary duty must fall with the claim in negligence. As pleaded, they add nothing more to the negligence claims. The asserted characterisation of the duty as fiduciary cannot convert an unsustainable claim at common law into a sustainable claim in equity.

   While the environment created by the Adoption Act 1955 points strongly against recognising a duty of care in tort, the position under the Children and Young Persons Act 1974 is in marked contrast. The allegation is that Mr Prince suffered harm as a result of the failure of the Department of Social Welfare to investigate and follow up a complaint by a third party about how his parents were looking after him. There was clear proximity between Mr Prince and the Department. In the present context the Department’s raison d’etre was to prevent harm of the type Mr Prince claims to have suffered. Section 5 of the Children and Young Persons Act 1974, being the statute in force at the relevant time, cast on the Director-General of Social Welfare a duty to take positive action and such steps as in his opinion might assist to prevent harm of the very kind of which Mr Prince complains. The fact that the positive action and steps required of the Director-General were in a sense conditioned by his opinion, cannot assist him because it must be implicit he would exercise reasonable care in forming his opinion.

   The Act gives the Director-General certain powers. They must have been given in the expectation that they would be exercised in aid of his statutory duty to take positive action. I see the statutory environment as supporting the imposition of a common law duty to perform the statutory duties with due care and likewise to exercise the statutory powers with due care for the protection of those to whom the duty was owed. Specifically, I consider that the statutory framework supports a common law duty to investigate with reasonable care a complaint that a child was not being looked after properly. That duty was owed to the child. It was clearly foreseeable that a failure to exercise care might lead to that child suffering harm, or further harm. It is true that careful investigation would not in and of itself obviate that harm unless follow-up action were taken. Whether one addresses that follow up action
   by saying that there was a further duty to take reasonable care in that respect, or as a facet of causation, need not be finally decided.

   Clearly it will not be enough for Mr Prince to show carelessness in the failure to investigate. He will also have to show that such carelessness caused him qualifying harm. Specifically he will have to show by direct evidence, or by a legitimate process of inference, that had reasonable care been taken at the investigation stage, the harm which he claims was caused by its absence would, on the balance of probabilities, have been avoided. This will involve an enquiry into what would probably have happened if the complaint had been properly investigated. There will be large issues in this area and in the area of damages, both of which are inherently difficult. Those difficulties should not, in my view, in the circumstances of this case negate the very existence of a duty of care. Any damage covered by the Accident Compensation legislation will have to be excluded. The pleadings appear to have been drawn with that point in mind.

   Henry J has identified a number of factors which militate against a duty of care on this aspect of the case. I acknowledge their force, albeit I see some of them as problems relating to causation rather than duty. Notwithstanding those matters, the overriding policy factor for me is that the Act placed a positive duty on the Director-General to take action to avoid the sort of harm of which Mr Prince complains. A breach of that duty as a statutory duty is not asserted. However, I consider that if such breach was careless and caused harm, the person damaged is entitled, at least prima facie, to a remedy at common law. Thus the present causes of action should not be struck out in limine without a full appreciation of the facts of the case.

   To the extent possible, the law should reflect the reasonable expectations of the society it serves. To hold that the Director-General owed no common law duty of care in present circumstances would, in my judgment, not only fail to meet society’s reasonable expectations, but would cause legitimate concern as to why the breach of an express public duty afforded no private remedy to a person for whose benefit the public duty existed in the first place. It is for these reasons that I agree with what Richardson P has written on this aspect of the case.

   In summary, I would strike out all the adoption causes of action but leave standing the causes of action based on the 1983 complaint.

   Solicitors
   Crown Law Office, Wellington, for Crown
   Judith Collins & Associates, Auckland, for Respondents

   Comment by MurrayBacon — Mon 26th May 2014 @ 5:19 pm

3. 

   S v ATTORNEY-GENERAL
   —– (2002) 22 FRNZ 39 —–
   High Court, Wellington (CP253/96)5-9 November, 12-16 December 2001; 1 February 2002Ronald Young J
   Tort – Negligence – Liability – Plaintiff was one of eight children – Placed with S family for purposes of adoption which never actually took place – Mr and Mrs S later separated – Plaintiff remained in Mrs S’s care – Plaintiff physically, sexually, and emotionally abused by caregivers and their son during childhood – Suffered from post-traumatic stress disorder as an adult – Sued Attorney-General as representative of State – Also sued for breach of fiduciary and statutory duties – Claimed vicarious liability for assault and battery – Sought compensatory and exemplary damages – Accident Rehabilitation and Compensation Insurance Act 1992, s 8(3), 63(3); Adoption Act 1955, s 6; Child Welfare Act 1925, ss 12, 13, 16, 43; Crimes Act 1961, s 128; Education Act 1964, ss 121, 122; Infants Act 1908, ss 46, 47; Limitation Act 1950, ss 2(2), 4(1), 24, 28(c).
   Equity – Fiduciary relationships – Breach – Plaintiff was one of eight children – Placed with S family for purposes of adoption which never actually took place – Mr and Mrs S later separated – Plaintiff remained in Mrs S’s care – Plaintiff physically, sexually, and emotionally abused by caregivers and their son during childhood – Suffered from post-traumatic stress disorder as an adult – Sued Attorney-General as representative of State – Also sued for breach of statutory duties and negligence – Claimed vicarious liability for assault and battery – Sought compensatory and exemplary damages – Accident Rehabilitation and Compensation Insurance Act 1992, ss 8(3), 63(3); Adoption Act 1955, ss 6; Child Welfare Act 1925, ss 12, 13, 16, 43; Crimes Act 1961, s 128; Education Act 1964, ss 121, 122; Infants Act 1908, ss 46, 47; Limitation Act 1950, ss 2(2), 4(1), 24, 28(c).
   The plaintiff, B S, was born in 1958. He was one of eight children of Mr and Mrs G, and was known as CG. In May 1959 Mrs G became mentally unwell and was admitted for treatment at a psychiatric institution. Mr G could not cope on his own, and other arrangements had to be made for the care of the children. The Child Welfare Division of the Education Department (“Child Welfare”) placed the four girls in a welfare home in Dunedin. A local Presbyterian Minister, Reverend J, arranged for the boys to be placed in homes within the local community. B S was placed with a Mrs J, and his brothers were placed with other foster parents. B S’s brother M was placed with Mr and Mrs S. Whether the foster parents held the required licences for the care of children under the age of 6 years was in dispute. The foster parents were to receive the individual child’s family benefit supplemented by a further maintenance payment from Mr and Mrs G.
   By late 1959, Child Welfare developed the view that Mrs J no longer wished to continue as B S’s caregiver. The Js had not received all of the maintenance [ (2002) 22 FRNZ 39, 40]payments from the Gs that they had been promised. In any event, the arrangements had been viewed by the Js as a temporary measure due to the urgency of the situation.
   By early 1960 all the G children were under “preventative supervision”. Financial support was provided for the foster parents through the Needy Family Scheme. Around this time, a Reverend J wrote to the Minister of Child Welfare expressing concern about the children’s situation and suggesting that they be adopted. The Gs recognised that they were unable to cope with eight children and consented to an adoption.
   In 1960, B S and his three brothers were placed with Mr and Mrs S with the intention that the Ss would adopt them. None of the other foster parents had been interested in adoption, and it was seen to be desirable that the boys stay together. However, there were some legal and practical impediments to a successful adoption. The Adoption Act 1955 imposed restraints on placing children under 15 for the purposes of adoption unless there was prior approval from a social worker or a Court order. Furthermore, Child Welfare took the opinion that the Ss’ financial position was not stable enough to go ahead with the adoption at that time. In the meantime, the children remained in the Ss’ care.
   By August of 1963, Child Welfare became concerned about the S household, believing that the marriage between Mr and Mrs S was at an end. The investigating Child Welfare Officer recommended committal proceedings with the children remaining with Mrs S. However, committal proceedings were not in fact taken. By July/August 1964, Mrs S had formally separated from her husband. She began living with the boys in a rented house opposite the T School. They remained there for three years. The Child Welfare file covering this period was sparse, but it was suggested that some of the notes regarding visits to the family had been removed over time.
   In August 1967 the family moved to a new house in K. There were records of five Child Welfare visits to the house within 5 months. Nothing adverse about the housing condition was recorded, despite B S’s claim that it was “disgusting”. Mrs S and the boys moved back to T in July 1968, and then moved to A in May 1969. Between August 1968 and late 1969, there were 15 recorded visits to the family. They moved to Rangiora in early 1974 when B S was 15 years of age. Mrs S had obtained work for M, who was of limited intellectual ability, in a company near Christchurch. B S was not happy about the move, and in 1975 he failed all his School Certificate exams. However, he passed three subjects the following year after changing schools, and gained University Entrance in 1978.
   B S alleged that he was sexually, physically, and emotionally abused during his childhood by Mr and Mrs S and their son, M. He claimed that, before the Ss’ separation, he was beaten by Mr S, and sexually abused by M, who would have been about 30 years of age at the time and of limited intelligence. B S described M chasing and pinning him down before poking him with his penis. B S claimed that he had received weekly beatings from Mrs S after the separation, initially with a dog collar, and later with a curtain rail. He claimed that Mrs S had regularly forced him to touch her in an inappropriate sexual way while sharing her bed in the T house. He complained that he had been forced to complete unreasonable tasks, such as emptying the toilet by digging a hole and lifting out the sewage. He also stated that he was expected to ride 15 miles on his bicycle to work at a market garden on the weekends, and to give all of his pay to Mrs S.[ (2002) 22 FRNZ 39, 41]
   In July 1993, Mrs S died. Her death and funeral had a profound effect on B S. B S discovered that his natural mother had not died in childbirth as he had been told, but had lived until 1982. From this time on he began a gradual process of discovering the facts of his childhood. He began to consider the role that Child Welfare had played in his life. Shortly after Mrs S’s death in July 1993, B S sought a copy of the Child Welfare file. In September/October 1993 he was given a file that was incomplete. Further parts of the file were released in February/March 1994. This was the first time that B S was in a position to assess the link between Social Welfare’s actions and his circumstances. His focus became the abuse he had suffered and the causes, and this resulted in serious episodes of depression. In 1995, B S confronted Mr S and M about their abuse of him. Mr S died in 1996, and in April of that year B S began counselling. Nevertheless, his health continued to deteriorate into the mid-1990s. By 1995, B S decided to try to sue M and the Department of Social Welfare in relation to the abuse. To this end he consulted a lawyer in March 1995. B S notified the department of his intention to sue in April 1996, and filed an application for leave in September 1996. A statement of claim was filed in 1998.
   B S sued the Attorney-General as a representative of the Department of Social Welfare, which inherited State responsibility for those institutions responsible for Child Welfare in the 1950s, 1960s, and 1970s. He alleged that he was at all times under the control and care of the Superintendent and then Director-General of Social Welfare. He alleged against those State institutions, breaches of fiduciary duty, breaches of statutory duty, negligence, and vicarious liability for assault and battery, and negligence. He sought compensatory and exemplary damages.
   Held, dismissing all but one of the plaintiff’s claims, and declining to award damages:
   (1)A cause of action based on assault and battery accrues when the incident on which it is based occurs. The relevant incidents in this case were the occasions of physical and sexual assault that occurred in the late 1960s and early 1970s. A considerable amount of time had passed since the incidents before proceedings were filed. Even though B S would not have known at the time that the sexual contact with Mrs S was inappropriate, he would have realised that this was the case at least by the age of 22 or 23 through his experiences as a young adult. This was still more than 15 years before the commencement of the proceedings, and thus fell outside the limitation period provided in s 4(1) Limitation Act. (p 67, para 138; p 68, paras 140-141)
   (2)B S was not under a disability in terms of s 24(a) Limitation Act at any relevant time. Although he did suffer from post-traumatic stress disorder (“PTSD”), none of his symptoms affected his capacity to solve problems. B S did not suffer from unsoundness of mind to the extent that he was unable to initiate proceedings. As such, the delay could not be excused under s 24(a) and the limitation period provided in s 4(1) applied. (p 69, para 148)
   T v H [1995] 3 NZLR 37 considered
   (3)The cause of action in negligence did not accrue until B S had sufficient information to understand that he in fact had a cause of action, and he had made a link between the abuse he suffered as a child and his psychiatric illness. B S discovered the extent of Child Welfare’s involvement in his life only after Mrs S’s death in 1994. However, he did not make the link between the abuse and his [ (2002) 22 FRNZ 39, 42]psychological and emotional condition until around the time he decided to sue M S and the Department of Social Welfare in March 1995. It was reasonable for B S not to have made either of these connections any earlier than he did. For the purposes of the limitation period, it was appropriate to take the latter of the two link dates. B S notified the department in 1996 and filed an application for leave in September 1996. Both of these dates fell within the 2-year limitation period for commencing proceedings. As such, the cause of action based on negligence was allowed to proceed. (p 71, paras 153-154; p 72, paras 160-161)
   Invercargill CC v Hamlin [1994] 3 NZLR 513 (CA) considered
   (4)It would be wrong to allow B S to claim compensatory damages, as he had been fully covered under the Accident Compensation scheme for his disability arising from PTSD and depression, however they were caused. To let the claim proceed would be allowing B S to “double-dip”. (p 76, para 176)
   (5)The children were effectively abandoned by their parents. Child Welfare was unable to find a family to take lawful responsibility for B S (through adoption), and as a result this responsibility fell to the department. Mrs S was effectively the State’s agent in this matter. Child Welfare recognised that there could be damage done to B S by his caregivers. The fact that the home was monitored and State wardship was considered illustrated the social worker’s acceptance of risk of harm. In these circumstances, there was sufficient proximity to justify a finding that a duty of care existed. (p 78, paras 187, 189-190)
   (6)A duty of care was owed by the defendant to B S. There were no obvious reasons for distinguishing between social workers and other professionals in considering negligence claims. Finding that a duty of care existed in this case would enhance, rather than undermine, any statutory obligations on the State. The floodgates argument could not stand scrutiny, as this case would have little or no precedential value beyond its facts. There were no compelling reasons against a duty of care, but there were clear reasons in its favour. (p 79, paras 192-197)
   (7)There was no breach of statutory duty in this case. There was no cause of action under ss 46 and 47 Infants Act, and no breach with regard to licensing rules. The facts did not establish either the existence of a s 46 agreement, or of maintenance arrears to trigger s 47 powers. The defendant gave proper consideration to s 13 Child Welfare Act. There was no breach of ss 121 and 122 Education Act, and no substantial breach of s 6 Adoption Act. (p 83, paras 212-216)
   (8)The closeness of the relationship between Child Welfare and the Ss was such that vicarious liability should be imposed. If State agencies were not vicariously liable where they dealt with children informally, the statutory regime designed to protect children may be undermined. Even if vicarious liability put an extra burden on the State, it would be justified it if it produced less sexual and physical abuse. There were no compelling policy reasons against vicarious liability, but there were compelling reasons in its favour. As such, the defendant should be vicariously liable for the acts of the Ss in this case. (p 85, para 228; p 86, para 234; p 87, para 238; p 88, para 241)
   (9)On balance, it may have been better for B S if committal proceedings had been commenced, but the decisions made by Child Welfare were reasonably open to them and were properly based on its own view of B S’s best interests. Even if B S had been made a State Ward, there was little reason to suppose that anything different relevant to B S’s complaints would have happened. There was nothing of [ (2002) 22 FRNZ 39, 43]substance to B S’s complaint about the circumstances surrounding the proposed adoption by the Ss. While B S’s work arrangements may have been less than ideal there was nothing in the defendant’s contribution to this which meant that the supervision provided by Child Welfare fell below a reasonable standard. Regarding B S’s change of name, in the social climate of the time it was understandable that the boys came to be known as S, and Child Welfare could not be criticised for not insisting that B S be called G. As B S could not establish any of the grounds raised that the defendant’s actions fell below the standard of care required, the action in negligence had to fail. (p 90, paras 255, 259; p 91, para 264; p 92, para 268; p 94, para 271)
   (10)For the Crown to be liable for exemplary damages, some blameworthiness or complicity on the part of the defendant had to be shown. In this case, the Child Welfare officers made decisions in what they believed to be B S’s best interests, and overall they provided reasonable supervision and care. These were not the actions that exemplary damages were designed to punish. As such, no damages were awarded. (p 94, para 277; p 95, para 279)
   Cases referred to
   A-G v Prince and Gardiner [1998] 1 NZLR 262, also reported as A-G v Prince (1997) 16 FRNZ 258; [1998] NZFLR 145 (CA)
   Bazley v Currie 174 DLR (4th) 45
   Bottrill v A [2001] 3 NZLR 622 (CA)
   Invercargill CC v Hamlin [1994] 3 NZLR 513 (CA)
   Lister v Hesley Hall Ltd [2002] 1 AC 215; [2001] UKHL 22; [2001] 2 All ER 769
   P v T [1998] 1 NZLR 257; (1997) 11 PRNZ 340 (CA)
   S v G [1995] 3 NZLR 681; (1995) 8 PRNZ 465; 2 HRNZ 11 (CA)
   S T v North Yorkshire County Council [1999] IRLR 98
   T v H [1995] 3 NZLR 37 (CA)
   The Queen in Right of British Columbia v CA (1966) DLR (4th) 475
   W v A-G [1999] 2 NZLR 709; (1999) 18 FRNZ 91 (CA)
   Application
   This was an application against the Attorney-General for compensatory and exemplary damages for negligence and breach of fiduciary duty.
   S M Cooper for plaintiff
   H S Hancock and C J Mathieson for defendant
   RONALD YOUNG J (reserved)
   Introduction
   [1] These proceedings concern the liability of the State for the plaintiff’s mistreatment as a child by his foster family during the late 1950s, 1960s and early 1970s.
   [2] The plaintiff was born in 1958, one of eight children of Mr and Mrs G and known as C J “G”. The plaintiff’s mother suffered from recurring bouts of mental illness. She was a regular patient in psychiatric hospitals. Mr G could not cope on his own with eight children. The children were sent to foster families and children’s homes. In mid-1960 the plaintiff and three of his brothers were placed [ (2002) 22 FRNZ 39, 44]with I and M S with the idea that the S’s would adopt the G boys. Mr and Mrs S separated in 1963 without the adoption proceeding.
   [3] Mrs S continued to look after the four brothers until they left her home as young adults.
   [4] The plaintiff says he was sexually, physically and emotionally abused during his childhood by Mr and Mrs S and by M S, Mr S’s son by a previous marriage.
   [5] He now sues the Attorney-General as a representative of the Department of Social Welfare which inherited State responsibility for those institutions responsible for Child Welfare in the 1950s, 1960s and 1970s in New Zealand.
   [6] The plaintiff alleges he was at all times under the control and care of the Superintendent and then Director-General of Social Welfare. He alleges by those State institutions breaches of fiduciary duty; breaches of statutory duty; negligence; assault and battery/vicarious liability; and negligence/vicarious liability. He seeks compensatory and exemplary damages.
   [7] The defendant for her part denies much of the basic factual allegations by the plaintiff and denies any fiduciary or statutory duties or negligence and denies vicarious liability. And as a positive defence she says these proceedings are out of time (the Limitation Act defence), the compensatory damages claim is barred by the ARCI Act and exemplary damages have no application in this case.
   [8] This judgment will deal firstly with the factual issues then the two positively pleaded defences and then the causes of action.
   The facts
   [9] In embarking on an examination of the facts of this case, three factors at least must be kept in mind:
   (1)Self-evidently, memories of what happened 30-40 years ago will be less than perfect. None of the Child Welfare officers who gave evidence (Ms Corcoran, Ms Fisher, Mr Mettrick, Mr Holland and Mr Melhopt) could remember any detail of the plaintiff, or his foster or natural parents.
   (2)What people did and said is to be judged as far as possible against the understanding and proper standards of the time. One must guard against implying the knowledge of today into the facts of yesterday. But this cannot excuse poor or inadequate practice.
   (3)The written recorded provided by the various departments of State concerned with Child Welfare relating to the plaintiff are not complete records of what was said or done on behalf of those agencies.
   [10] It seems common ground that the plaintiff was born into a family of seven siblings in 1958. He was the youngest child and the fourth of four boys. Mr and Mrs G, the plaintiff’s parents, met at the D home, a home for difficult young adults. Mr G found work as a railway shunter in the U area. From subsequent correspondence it seems clear that a local Presbyterian Minister, the Reverend J, and a number of farming families in the area had been concerned about the capacity of Mr and Mrs G to cope with the very large family for some time from the mid-1950s.
   [11] In May 1959 Mrs G became mentally unwell. This was probably part of a longer pattern of mental instability. Thus not long after the plaintiff’s birth Mrs G was admitted to the S psychiatric institution for treatment. Mr G could not look [ (2002) 22 FRNZ 39, 45]after the children. The girls were sent to a Child Welfare home in N. This was arranged through the Child Welfare division of the Education Department (“Child Welfare”), the State agency then responsible for the welfare of children. Mr [sic] Doris Fisher, a Child Welfare officer in U asked Reverend J, the local Presbyterian Minister if he could arrange for the male children to be cared for. Eventually the four boys were placed in homes within the local community.
   [12] The Infants Act 1908 required licensing of adults and their homes who took children under 6 years of age. Child Welfare expected the parents to pay maintenance to the foster family.
   [13] Child Welfare Officers’ manual operating at the time (mid-1959) expected Child Welfare officers to inspect homes and assess the applicant’s character and fitness before a licence was granted. The licence was for a particular house and a particular person for a limited number of under 6-year-old children. Once the licence was granted it remained in force until revoked or until the family left the home.
   [14] The plaintiff was placed with a Mrs J. The other boys were placed with other foster parents. The plaintiff’s brother, M, was placed with Mr and Mrs S.
   [15] The plaintiff alleges that there was no Infants Act licence for any of these placements. He has no complaint about the care he received with the Js for the approximate 10 months he lived with them. He accepts they were good foster parents. Whether the Js were licensed is irrelevant in this case. However, given the Ss were also to be licensed at this time this issue is of importance. The plaintiff’s allegation that there was no licence is based on:
   (i)The absence of records of such a licence;
   (ii)Mrs J’s evidence that she had no recollection of licences or licensing procedure.
   [16] Miss Fisher, a CWO employed during the 1950s and 1960s in R, gave evidence that there was then a clear appreciation and recollection by those who worked in the field of the need for an Infants Act licence. In October 1959 Mr F L Kennedy, the Acting District Child Welfare Officer (“DCWO”), recorded that the department had had to approve the placements of the S children as they were required to license the foster homes under the Infants Act.
   [17] This material would have satisfied me there is nothing of substance in the allegation the foster homes for the boys were not licensed. In saying this I acknowledge the evidence of Mrs J. She could not remember any special licence. That may not be surprising given it is over 40 years since these events. In any event, as I have observed, these local families (the foster families) were no doubt well known in the area and it is possible licences could have been granted without direct inspection by Child Welfare officers. Given the J’s were well known in the area in which they lived and given they had been recommended by the local Presbyterian Minister, Child Welfare officers may have felt there was little need to inquire further. Child welfare considered the placement of the four boys in separate foster homes as a reasonable short-term solution to an urgent problem. While Mrs G was in S their own family could not look after these boys. Foster homes were clearly preferable to a boys home. All involved saw the arrangement as short term. I conclude that the foster homes the boys went to were probably licensed under the Infants Act, including the Ss’.[ (2002) 22 FRNZ 39, 46]
   [18] By October 1960 all the boys were living with foster parents. The foster parents received the individual child’s family benefit of 15 shillings per week. Child Welfare were chasing Mr G who had agreed to pay an additional 5 shillings week maintenance for each of the seven children a total of 35 shillings. An eighth child was attending O School and did not need financial assistance.
   [19] By late 1959 some of the foster arrangements for the children were under threat. That again that was hardly surprising. The original intention and circumstances of the placement were short-term and urgent. The Gs had initially agreed to pay maintenance but it was only paid occasionally, and in any event was inadequate to support the children at their foster placements. By December 1959 this was recognised by Child Welfare. It suggested (internally) that some of those with foster children could be paid Needy Family Assistance (more of this later).
   [20] By late 1959, the department’s file records Mrs J (the plaintiff’s foster parent) was not prepared to keep him much longer. In early November Child Welfare suggested the Ss, who had M, may be prepared to also take C (the plaintiff) at 30 shillings per week each with clothing supplied.
   [21] Mrs J in evidence denied that she had ever told Child Welfare that she was no longer prepared to keep C. However, there is no reason why Child Welfare would be anxious to take C from Mrs J’s care. On the contrary, they had a good stable placement when most needed. It is impossible to reconcile these two conflicting views. Mrs J on the one hand maintained she welcomed C’s continued residence with her, Child Welfare emphasised Mrs J’s desire to have C placed elsewhere. It may be that Mrs J expressed an understandable view to Child Welfare that she had been asked to take C for the short term and now months had passed without a clear idea of the future. It might be Mrs J felt upset by the inadequate financial support, again understandably. And it may be Child Welfare misunderstood her legitimate concerns as a desire to end the foster placement. This of course is simply speculation. But misunderstanding or not Child Welfare clearly thought they had to find a new placement for baby C. And at the same time they recognised if foster parents were to continue to look after the children the State was likely to have to assist financially.
   [22] By late 1959 Mrs G had been in and out of hospital, Mr G’s finances were in a mess, and neither was capable of looking after the children. The possibility of C being placed with M at the Ss’ was discussed and State assistance by way of Needy Family grant for clothing was seen as possible. By late 1959 Child Welfare had approved a grant for clothing for the children. Further support for the defendant’s contention that the boys were fostered in licensed homes can be seen from the case report of 25 January 1960. The report records that the four boys, F, P, M and C (the plaintiff) were in “ILP” homes, departmental shorthand for a licensed home under the Infants Act. It records the house C was in with Mrs J was “ILP” and the house C was soon to go to, the Ss’, was also “ILP”.

   Comment by MurrayBacon — Mon 26th May 2014 @ 5:49 pm

4. 

   [23] The report also noted; “Difficulty: Parents inability to care for children unaided”. The recommendation in the report was “two years preventive supervision”.
   [24] Preventive supervision was a concept unknown in any statutory context. It was a device “invented” by Child Welfare. Child Welfare field officer’s manual of the day contains a detailed description of preventive supervision. The definition [ (2002) 22 FRNZ 39, 47]appears in the section of the manual headed “Preventive Work”. The description of preventive supervision contained in the manual (at H77-79) is:
   “PREVENTIVE SUPERVISION”
   “H.77When it is clear at the outset, or becomes clear during handling of a “miscellaneous inquiry” or other investigation arising from any source, that work will be required over a period of more than a month or two, the case should be recorded as one of “preventive supervision”. This is an arrangement, without legal force, which usually depends for its successful operation on the co-operation of the child and family concerned. There are however some cases – particularly those in which neglect or mis-management are involved – where preventive supervision may need to be carried on without the family’s co-operation, or even despite their objections.
   “H.78The methods of case work have been outlined in Part G and it will only be necessary to emphasise that the comments there about working with people, helping them to solve their own difficulties, and making haste slowly, apply here with particular force, except of course to some near-neglect cases, but even in these, efforts must be made to secure co-operation, even if this means slower progress.
   “H.79Since there is no statutory authority concerning preventive supervision, no age limits apply. Young persons of seventeen years and over can, if co-operative, and if it is considered that the officer can assist them, be dealt with on this basis, though such cases are unusual. The Probation Service undertakes preventive work and it may therefore be advisable, where it is felt that this type of supervision may be more appropriate and effective, to discuss the case with the local Probation Officer.”
   [25] And where the need of the children was financial the manual said:
   “H.134 ‘PREVENTIVE SUPERVISION’ RECORDS TO BE PREPARED
   “Generally, all ‘Needy Families’ should be written up as Preventive Supervision cases. If, however, any of the children in the family is already on a status, e.g. Sup. or H, that child should not of course be included for Preventive return purposes; the other children in the family should be placed on Preventive Supervision. It sometimes happens that assistance becomes necessary for a family in which all of the children are the subject of a supervision order. In this case Needy Family assistance may be given, but care should be taken to ensure that, as from the terminating date of the supervision order, the children not on another status are transferred to Preventive Supervision for as long as is necessary or financial assistance is being given.
   “The writing-up of a case usually involves only the preparation of a facing sheet, form E.5/12, which is allotted Preventive Supervision serial numbers (one for each child) as set out in H.80. If, however, there is material which should be recorded but was not relevant to the report recommending Needy Family assistance, this should be incorporated in a supplementary narrative report.”
   [26] Thus by early 1960 all the G children were under “preventive supervision”. Child Welfare provided financial help through the needy family assistance scheme. A case report from the early 1960s contains the following comment by Mrs J L Meggett, Child Welfare officer relating to the Gs:
   “HOME AND FAMILY” [ (2002) 22 FRNZ 39, 48]
   “4.Until the mother’s illness the family was held together by Mr G, himself an ex O boy, who did most of the housework and cared for the children since Mrs G’s intelligence is very low and her housekeeping abilities almost non-existent. Even now Mr G is struggling to clear his debts and support his children in the hope that he will be able to provide a home for them again when his wife is discharged. It seems unlikely that she will ever be able to provide satisfactory care for the children and continuing oversight of the family will be necessary for many years.”
   “IMPRESSIONS AND SUMMARY:”
   “5.There is a strong bond of affection in this family but it is beyond the abilities of the parents to cope with such a large number of young children unaided.”
   [27] By March 1960 the Reverend J (who had arranged the foster parents for the boys) was sufficiently concerned about the children and the actions of Child Welfare that he wrote to Mabel Howard, the Minister of Child Welfare. Reverend J expressed the view (he said of the local community) that the Gs were unable to care for their children (especially the four boys). He suggested the children be adopted. He was concerned the boys were currently in limbo, neither with their parents nor with any other permanent family arrangement. This suggestion for adoption seems to have been taken up with Mr and Mrs G and by early March it was reported to Child Welfare that the Gs would agree to the adoption of the three boys, C, P and F, but wanted M (fostered with the Ss) returned to them. Mr and Mrs G recognised that they were unable to cope with eight children, and thus they consented to adoption.
   [28] The Reverend J’s letter to the Minister sparked a comprehensive report from Miss Fisher, the Child Welfare officer to the DCWO on 17 March. It dealt extensively with the family’s background and their current circumstances. The DCWO commented to the superintendent:
   “2.I think it is quite clear that no effort has been spared on behalf of this family. All concerned have worked hard and conscientiously in the long term interests of the children and parents. I feel that a difficult situation has been well handled, and reflects credibility on all those who come forward to help this family through a serious crisis. Although the parents are somewhat inadequate they are nevertheless fond of their children and cared for them to the best of their ability.
   “3.Mr J’s letter is certainly no reflection of his attitude to us as he has always been most helpful. It is unfortunate that he should choose to write in such terms, and while I appreciate his concern for the future of the children I do feel that he is unnecessarily critical and extravagant in his comments – they have no foundation whatever in fact.”
   [29] As to the adoption Mr Medcalf the DCWO (on 18 March 1960) observed that none of the foster parents of C, F and P were interested in adoption and thus new homes would have to be found for them. He said:
   “2.None of the foster parents who have F, P and C would be prepared to adopt them so that if the parents decide in favour of adoption, new homes will have to be found for them. We will endeavour to place them if the parents wish them adopted but it will not be easy in view of the mental instability of the parents. Would you please discuss the question of religion with the parents when you see them. If they wish to stipulate that the children be brought up in a particular religion that will probably make placements even more difficult to arrange.” [ (2002) 22 FRNZ 39, 49]
   [30] During April the Gs confirmed the three boys were available for adoption. Late in April Mrs G was readmitted to hospital and by 20 April 1960 C (the plaintiff) had been placed with Mr and Mrs S with a view to adoption.
   [31] The criticisms of the plaintiff and the actions of Child Welfare up until and including his placement with the Ss are that the placing of C with Mrs J was without lawful authority in that it was not pursuant to a licence under the Infants Act.
   [32] I have already concluded on balance I am satisfied the Ss did have an Infants Act licence. It may be because of the urgency of the placements the licences were not formally granted before the children were placed. But it is significant that there is no complaint about the Js’ household and the way they looked after C. The Child Welfare was faced with a difficult and urgent problem of placing eight children in some form of reasonable care. They lived in a small rural community with limited alternatives. It is to the credit of those involved that the homes were found for the four boys in the local area.
   [33] The plaintiff criticises Child Welfare support for the foster parents through the Needy Family assistance scheme.
   [34] The plaintiff says this money should have been used to support Mr and Mrs G living together with their children including C. The plaintiff says the Needy Family allowance was effectively used to keep this family apart, rather than its intended function to keep the family together.
   [35] I do not consider these criticisms are supported by the evidence. These factors are relevant.
   (i)The difficulty experienced by Mr and Mrs G was not primarily financial. Although some years previously the Gs seemed to have been paid the Needy Family Assistance, by late 1959 the Welfare Department observed that Mr G’s income was such that they would ordinarily qualify for Needy Family Assistance.
   (ii)The problem for the Gs was Mrs G’s continuing mental health problems and her and her husband’s inability to cope with eight children. Additional money from the State was not going to solve this problem.
   [36] The law required parents to pay for their children’s upkeep where they were placed in licensed homes under the Infants Act. The foster parent’s only support was the child’s family benefit, plus maintenance paid by parents. In this case the 5 shillings per week plus family benefit paid to the foster parents was well short of what was required for the upkeep of each of the four boys. Needy Family Assistance was given to foster parents to help with clothing for the children. In the context of this case State assistance given was humane and appropriate. For the Child Welfare to refuse to help foster parents in such circumstances would have been wrong and objectionable.
   [37] The plaintiff complains that he was left without proper Child Welfare supervision and in legal limbo from late 1959 until May 1960.
   [38] Mrs J said that she did not see a social worker from the time that C was dropped off until he was picked up to take him to the Ss in April 1960. C was subject to preventive supervision from late 1959. The Field Officers’ Manual recorded the expectation of 4-monthly visits by Child Welfare officers to foster homes. There are no records of visits to Mrs J by Child Welfare officers. It is impossible to know whether this is because there were no visits as Mrs J says, or [ (2002) 22 FRNZ 39, 50]simply now no records. I think it probable that there were few, if any, visits by Child Welfare to Mrs J at the time. Clearly this was less than ideal. But for several reasons this can be seen as less significant than perhaps in other placements. Firstly, Miss Fisher’s report of 17 March 1960 in response to the Reverend J’s complaint to the Minister of Social Welfare is informative. The report records that while the local citizens were keen to have the children permanently taken from their parents, Child Welfare were reluctant to do so. They were trying to preserve the possibility of a return by the children to their parents and thus a reunited family. By early 1960 Child Welfare knew of the possibility of adoption. And as Miss Fisher observed the G file had grown from 25 “folios” in May 1959 to 248 folios “by early 1960″. This was an active file getting the active attention of Child Welfare.
   [39] Secondly, Mrs J’s household had been recommended as suitable by the Reverend J who himself was actively interested in the children’s welfare.
   [40] Finally, I suspect that because of the uncertainty surrounding the Gs’ capacity to cope with eight children and the problem of looking after several children (some with perceived intellectual limits) time passed without a firm decision on C’s future until the trigger of Reverend J’s letter.
   [41] While Child Welfare actions during this time may not always have been precisely in accordance with the law, or precisely in accordance with the Field Officers’ Manual, overall they managed a difficult situation well.
   [42] By April 1960 it would have been possible for Child Welfare to have applied to have the children made State wards. Section 13 of the Child Welfare Act 1925 provided as relevant, as follows:
   “13. Committal by Children’s Court. Duty of parent or guardian-
   (1) On the complaint of any constable or of any Child Welfare Officer that any child is a neglected, indigent, or delinquent child, or is not under proper control, or is living in an environment detrimental to its physical or moral well-being, any Justice may issue his summons addressed to any parent or guardian of the child or to any person having the custody of the child, requiring him to appear before a Children’s Court with a child, at a time to be named in the summons, in order that the child may there be dealt with in accordance with the provisions of this Act.
   “(2) If it appears to the Justice to whom a complaint is made under this section that the child in respect of whom the complaint is made is living in a place of ill-repute, or is likely to be ill-treated or neglected, or that for any other reason the child should be forthwith removed from its surroundings, he may issue a warrant authorising any constable or Child Welfare Officer, or other person named in the warrant in that behalf, to take possession of the child and to convey it to any institution under this Act, and to deliver it into the custody any person for the time being in charge of the institution, there to be detained until the matter of the complaint has been disposed of. If in any case it is not convenient or advisable, having regard to the health of the child, or to the distance from an institution, or for other sufficient cause, to place any child in an institution pending the disposal of the complaint, a warrant under this section may authorise any person named there in to receive and hold such child until the complaint has been disposed of, or to make other satisfactory provision for the temporary maintenance and care of the child.”
   And s 16(1) said:
   “16. Superintendent to be guardian-[ (2002) 22 FRNZ 39, 51]
   “(1) On the making of an order committing any child to the care of the Superintendent as hereinbefore provided the Superintendent shall have and may exercise, to the exclusion of all other persons, the same powers and rights in respect of that children as if he were under the provisions of Part I of the Infants Act 1908.”
   [43] The three boys had been effectively abandoned by their parents who said they were prepared to have them adopted. The Gs had not seen the boys since at least October 1959. The G’s could hardly have bonded with C who by April 1960 had lived most of his life without his parents.
   [44] Mr G had not paid all the maintenance he had agreed. Thus neglect and indigence (s 13(1) Child Welfare Act) were probably able to be established. Indeed it is clear that Child Welfare considered at this time and rejected Court proceedings, primarily because it was not convinced an order would be made.
   [45] I cannot see that Child Welfare can be justifiably criticised for the decision not to seek a Court order that the children be made state wards at this time given what it proposed would happen to the children. By May 1960 the four boys had been placed with the Ss with the intention they be adopted by them. Mr and Mrs S had agreed to the adoption. The Ss had already looked after M for some months without apparent complaint. The Ss were probably licensed under the Infants Act. The Ss were able to take all four boys together. Keeping siblings together as far as possible was seen, in 1960, as highly desirable. It may well be seen in the same way today. While the boys would be separated from their sisters it was extremely unlikely all eight could be kept together. And the chances of finding another home which would adopt four of these boys was slim given:
   (1)The mother’s regular admission to a psychiatric hospital.
   (2)The perception that some of the boys were of limited intellectual capacity.
   (3)Significant numbers of babies were available for adoption thus adoption of older children was seen as less attractive.
   [46] I acknowledge in making these observations about the Ss that it seems probable Mr or Mrs (or perhaps Mr and Mrs) J, did express their concern about Mr S to Child Welfare at about the time C was shifted from their residence to the Ss’. Mr J had known Mr S in the army. He had been concerned about his drinking habits and, it is said, passed those concerns on to Child Welfare. There is nothing in the Child Welfare files that records any such complaint. There is no mention of the complaint in any of the correspondence which assesses the Ss’ suitability as either licensees under the Infants Act or as prospective adoptees under the Adoption Act. It seems extraordinary that if the information came to the notice of those dealing with the Ss it was simply ignored. While it could reasonably be said that Child Welfare officers were greatly relieved to find a family prepared to look after the four boys together and thus may have lowered their expectations from the ideal adoptive family it is a significant leap to suggest they would ignore serious information about the suitability of a foster/adoptive parent. My conclusion, therefore, is while accepting that Mr J probably made this complaint to Child Welfare it seems unlikely it reached the notice of those who were dealing with the Ss.
   [47] While an application could have been made to have the children declared State wards by the Court, the legal and practical protections they may have enjoyed needed to be balanced against the belief that all four children would shortly be adopted. Understandably adoption was seen as the preferable course for [ (2002) 22 FRNZ 39, 52]these boys. However, there were some legal and practical impediments to a successful adoption.
   [48] Firstly, the practical problems which were effectively two.
   (1)The Ss had recently purchased a small farm. Mr S’s sole income was from fencing. The Ss were not in a financial position to adopt until the farm was less of a drain on their income. Thus they would need State support for the children and could not be considered as adoptive parents until they could support themselves and the children without State aid.
   (2)Apart from M, the Ss did not know the other three boys, thus an immediate adoption would have been unwise without ensuring the boys and the Ss “bonded”. (Especially important because they were boys not babies.)
   [49] The legal problems revolved around the Adoption Act 1955 and in particular the circumstances under which children could be left with prospective adoptive parents for any length of time.
   [50] The Adoption Act imposed restraints on placing children under 15 years of age for the purpose of adoption unless there was prior approval of a social worker (which lasted for one month) or an interim order of the Court (s 6).
   [51] Section 6, however, did not apply where the child was already in the home or care under an Infants Licence:
   “6. Restrictions on placing or keeping a child in a home for adoption-
   (1) It shall not be lawful for any person to place or receive or keep any child under the age of 15 years in the home of any person for the purpose of adoption, unless-
   “(a)Prior approval has been given by a Social Worker, and that approval is for the time being in force; or
   “(b)An interim order in respect of the proposed adoption is for the time being in force.”
   “(2) Any approval granted by a Social Worker for the purposes of this section shall remain in force for one month after it is granted:
   “Provided that, where application to the Court for an adoption order is made before the expiration of one month from the date of the grant of the approval, the approval shall remain in force until the application is abandoned or dismissed or an order is made by the Court on the application.
   “(3) An interim order may be made by the Court in respect of a child notwithstanding that a Social Worker has refused to grant an approval under this section.
   “(4) This section shall not apply in any case where-
   “(a)The child is in the home pursuant to any provision of the Children, Young Persons, and Their Families Act 1989 or to an order made pursuant to that Act; or
   “(b)The child is in the home pursuant to an order made pursuant to the Guardianship Act 1968; or
   “(c)The child is in the home of one of the child’s parents and a step-parent of the child; or
   “(d)The child is in the home of a relative of the child (not being a relative who, in the absence of special circumstances, is prohibited, by reason of age or sex, from adopting the child).”
   [52] And by s 41(1)(a) of the Infants Act 1908:
   “41. Unauthorised person not to receive infant-[ (2002) 22 FRNZ 39, 53]
   “(1) It shall not be lawful for any person to receive or retain in his care or charge any infant for the purpose of nursing or maintaining it apart from its parents or guardians for a longer period than seven consecutive days, unless-
   “(a)The person is licensed under this Part of this Act as a foster parent” .
   [53] I have concluded already that the Ss’ household was probably licensed under the Infants Act when they first fostered M in late 1959. The licence related to the house and to the foster parents, and was limited to the number of children specified in the licence. The licence continued until revoked. It is not known whether the Ss’ licence was open-ended as to the number of children enabled to be fostered, or whether it specified M only. I note that a Child Welfare officer said his recollection was that the licences were child specific.
   [54] In any event it seems clear given, Mr and Mrs G’s approval for the boys to be adopted (by February 1960), that Child Welfare thought Mrs J did not want to adopt C and thus C was placed with Mr and Mrs S for the purposes of adoption. On 11 May the DCWO, Mr Medcalf, wrote to the DCWO in N saying:
   “4.The people who have C with view to adoption are a very pleasant couple who have an excellent manner with children. They are Seventh Day Adventists. I presume that Mr and Mrs G would have no objection to the child being placed with people of this faith. With such a background as these children have it is not going to be easy to find adoptive parents for them.”
   [55] This seems to confirm that proposition. From the perspective of s 6 of the Adoption Act, it could not be said the plaintiff was already in the care of Mr and Mrs S when placed with them for the purpose of adoption. He was placed in the Ss’ home (which had an Infants Act licence) for adoption. Thus, he was not “already” in the home or care under a licence when placed there for the purpose of adoption.
   [56] The clear purpose of these provisions are to ensure that either the placement in a home for adoption is for limited time before the adoption proceeds or the placement is in a home with people already licensed to care for children for a longer period. The latter was clearly more suitable for the adoption of older children, or a child who had previously been fostered. There the need was to ensure the child would fit into the family. This, for obvious reasons, was not the imperative for new babies who would be subject to s 6(1) restrictions where the placement could only be for one month. Whilst there may have been a breach of s 6(4) of the Adoption Act, the purpose of the legislation was adhered to, and the breach in my view no more than technical. Importantly, the thrust of the provision was still maintained, namely the protection of the child through a licensing system. Thus I can see little that is objectionable in the circumstances under which the four boys were placed with the S family for adoption. It seemed the best option at the time to Child Welfare and it probably was.
   [57] In summary:
   (1)The G parents had effectively abandoned the children and wished them adopted.
   (2)The opportunities for adoption of three and later four sibling boys was modest.
   (3)The opportunities for adoption were reduced even further given the perception of limited intelligence of some of the boys.[ (2002) 22 FRNZ 39, 54]
   (4)The opportunity for adoption was further reduced by the desire to keep the four boys together. This desire was heightened given the boys were already separated from their sisters.
   (5)The S family was prepared to adopt all four boys who were placed with them for that purpose.
   (6)The family had previously fostered one of the boys without complaint and had (probably) been licensed under the Infants Act.
   (7)Although the placement was technically in breach of the Adoption Act it was for the purpose of placements under the Act.
   [58] While Child Welfare officers were required to guard against accepting the Ss’ offer because there was no alternative, the Ss’ offer must have seemed an ideal proposition to them.
   [59] A 23 May 1960 report of Mrs Meggett, Child Welfare officer, observes that the adoption would not be able to proceed for about 2 years because of the Ss’ financial position. It identifies and reports on Ss’ business circumstances and suggests a continuation of assistance on the basis the boys are still subject to preventive supervision. The memorandum from Mrs Meggett went to the superintendent who observed in a hand-written note as follows:
   “If you are sure that committal would not be better (keeping in mind the recent Ministerial inquiry concerning this family) then the proposal is approved on the basis of a board placement which would cost us a good deal more were the children committed. The [Ss] should not regard this arrangement as ensuring approval of or certainty for adoption.”
   [60] Mr Medcalf the DCWO responded to the superintendent that three of the boys were now with Mr and Mrs S and that the DCWO saw no “advantage to be gained by having these children committed as it would be difficult to establish grounds for doing so”. In June, Child Welfare also obtained Mr G’s authority for medical treatment for the boys. Mr and Mrs S continued to express interest in also adopting M who had been with them as a foster child, but had been returned to the Gs when Mrs G had been released from hospital. Mrs G was admitted to hospital again in mid 1960 and by August of that year M was also placed with the S’s for the purpose of adoption.
   [61] The circumstances under which this occurs is revealed in Ms McKay’s (the CWO) memorandum to the DCWO of 22 August, in particular at paras 2, 3, 4 and 5:
   “2.Both parents readily consented to M being placed for adoption with Mr and Mrs S of H. The parents have been aware for some time that M has been fretting for his former foster parents. They said the child does not know his real parents and that in any case it may be quite some time before the family can be together again. Mr and Mrs G were genuinely concerned about M’s health and they feel they are taking the right action in placing the child with Mr and Mrs S.
   “3.The parents have quite a sensible attitude towards this proposed adoption and their child’s future happiness and emotional security means a lot to them. They feel they can never step into the breach now, and both are of the opinion that they will have quite enough to do to rear their three daughters. The parents are satisfied M will have a good home with Mr and Mrs S and it was their suggestion that he go to these people. I do not think they would have considered an adoption placement with anyone else. Both parents assured me that in the interests of M and those concerned [ (2002) 22 FRNZ 39, 55]that they would never think to interfere with the placement. They said the child’s needs must come first and that they would get over the separation from him.
   “4.I communicated with Mr W, Manager of the [DT] Homes who confirmed the fact that M appeared to be fretting very badly, and that the present foster parents were experiencing difficulties with the child. Mr W was prepared to make immediate arrangements for the transfer of this child to Mrs S’s home on Sunday 21st August. Miss Fisher CWO R was advised accordingly.
   “5.Attached herewith consent forms prepared by the DCWO R and signed by the parents for all medical treatment as considered necessary for their children.”
   [62] As to the proposed adoption, Mrs Meggett in a note to the DCWO of August 1960 recorded at paras 4 and 5 as follows:
   “4.Since it may be some time before Mr and Mrs S are able to proceed with the adoptions I recommend they be advised to get their solicitor to obtain the consents of Mr and Mrs G now. This would save raising the matter again with the Gs later, reminding them of their loss and possibly stimulating them into wanting the boys back.
   “5.I also recommend that Mr and Mrs G be informed that the S’s hope to adopt all four boys but that it may be a year or two before this step is taken. There seems no point now in concealing where the other three boys are since M’s whereabouts are known to the Gs and it may be some comfort to them to know that the boys are together and doing well.”
   [63] Mr Medcalf the DCWO agreed with these proposals: Mr Peek the superintendent was concerned to ensure that the Ss really did intend to adopt and the timing of obtaining the Gs’ consent to adoption in relation to the Ss’ application was acceptable to the local magistrate.
   [64] In response to this note from the superintendent Mrs Meggett visited the Ss and reported in her view there was hope the adoption could proceed within 18 months. The Ss were said to be firm in their desire to adopt and the report on the boys’ circumstances was very positive.
   [65] Mr Peek, the superintendent, seemed satisfied with this and suggested the Gs be informed the adoption would not immediately proceed.
   [66] The plaintiff criticised the actions of Child Welfare as follows:
   (1)Child Welfare should have applied for an order for committal of the children once it was clear the Gs had effectively abandoned them.
   (2)The children were unlawfully placed with the Ss with a view to adoption.
   (3)There was inadequate investigation of the Ss as prospective adoptive parents.
   [67] I reject the suggestion that at this time Child Welfare should have applied for a committal order under the Child Welfare Act. I have no doubt that there were grounds in law and on the facts existing on which an order based on indigence could have been made. The Gs had at least financially abandoned responsibility for the children. The children were being supported by the Ss only because they were paid Needy Family Assistance. I also consider that Child Welfare were correct in their assessment that the best for these boys (including C) was to leave them with the Ss with the prospect of adoption. While an order declaring the children state wards would not have stood in the way of adoption there seemed little reason to make such an application. This was a reasonable option taken by Child Welfare.[ (2002) 22 FRNZ 39, 56]
   [68] The Ss seemed to all inquiry suitable foster parents. The boys were altogether. The Gs had consented to their adoption and had authorised any medical treatment as necessary. Child Welfare knew where the Gs lived and if necessary, could consult them as the children’s guardians. Indeed, Mrs Meggett (in contrast to a memorandum of 12 August) had decided by 24 August that the Gs should know the Ss had all the boys but that the adoption might be delayed. It is not possible to know now whether the Gs were in fact informed that the Ss were adopting all four boys, however, there is no reason to suppose that was not done. I have already expressed my view as to the lawfulness of the adoption placement.
   [69] I am also satisfied that Child Welfare properly investigated the Ss and indeed during 1960 continued to monitor the placement with the Ss. The reports from Child Welfare during 1960 were nothing less than glowing in their assessment of the Ss. P had come to the family with severe behavioural problems. These had stopped. M had pined for the Ss while with his natural parents and was happy to return to the Ss. F was said to be happy and has “no regrets”. And C who had come to the Ss as an 18-month-old was said to have settled well and be a happy and attractive child.
   [70] It is difficult to see what more could be expected given the problems of placing these boys previously identified. By the end of 1960, therefore, there was an expectation the Ss would be in a position to apply for an adoption in 1961 or 1962 at the latest.
   [71] Mr Peek in discussing adoption, made it clear the Ss could not assume they would be able to adopt even once they could afford to do so financially. This was no doubt expressing no more than a truism that adoption could not be guaranteed because a Magistrate would make the decision. However, what had to be realistically accepted is that the longer the boys were left with the Ss the more difficult it would be to shift them. By accepting the delay caused by the impecuniosity of the Ss Child Welfare was effectively narrowing the options for the boys. It is difficult to know whether Child Welfare recognised this. But the other side of this proposition was the reality that there were few acceptable alternatives for the boys, and certainly none as agreeable as the Ss appeared to be.
   [72] Child Welfare reassessed the Ss’ financial position in December 1960, in June 1961 and in December 1961. The Ss’ financial position had not changed and heavy expenditure on the farm was expected during 1962. Mrs Cochran the Child Welfare officer observed in a memorandum to the DCWO R as follows:
   “3.It would be difficult to find a home to take these four children, particularly where the foster parents would definitely be anxious to adopt. There is no doubt that the boys are loved and wanted members of this family and I recommend that the rental subsidy continue for a further six months.”
   [73] Preventive supervision was extended which allowed Child Welfare to support the children living with the Ss through the Needy Family Assistance programme.
   [74] A further assessment was made in February 1962. By this time Mr S considered he needed a further 2 years of State help before he could apply for an adoption order.
   [75] By early 1963 Mr and Mrs S’s marriage was under stress. Child Welfare reported the children seemed well and settled. From August 1960 (after M’s [ (2002) 22 FRNZ 39, 57]return) to early 1963 there are six reports from Child Welfare on the Ss’ situation and the children’s welfare including C’s. During this time Mr and Mrs S changed both the Christian and surnames of the boys. C, the plaintiff in these proceedings had his name changed to B S. This seems to have been entirely the decision of Mr and Mrs S. Rather confusingly Child Welfare continued to refer to the boys as Gs while the Ss changed their names to S. More of this will be mentioned later.
   [76] By August 1963 Child Welfare were concerned about the S household. The concern was summarised in the memorandum from the Mr Mettrick the DCWO, R to the Superintendent on 5 August 1963. Mr Mettrick seems to accept the marriage between the Ss was probably at an end. His conclusions can be summarised as follows:

   “(1)Mr S’s assessment that Mrs S had been a good mother to the children.
   “(2)Mrs S’s acceptance that she could not now adopt the children but wished to continue to care for them.
   “(3)The children were seen by Child Welfare as a happy family unit with Mrs S and as having made good progress.
   “(4)The following problems were identified:
   “(a)uncertainty over whether the Gs knew the adoption had not gone ahead
   “(b)that the children had no attachment to the Gs and used the name S; and
   “(c)the Gs were unlikely to either want or be able to take the children back.”
   [77] Mr Mettrick recommended committal proceedings with the children remaining with Mrs S. Mr Mettrick saw some problems with committal proceedings, including a requirement the boys’ name be returned to “G”. He acknowledged Mrs S would for the future require State support for the children. At the end of Mr Mettrick’s memorandum there are some written notes from (amongst others) the superintendent. They are not distinct. Mr Mettrick gave evidence he considered the note from the superintendent said, “With reluctance with children doing well it’s a cheaper proposal than committal”.
   [78] Committal proceedings were not in fact taken. Mr Mettrick was asked in cross-examination whether he took into account the “cost” of such a decision (whether to proceed with the committal or not). He said he did not believe cost was a factor in his decision on committal. He said he would normally have discussed all the facts of the case with his colleagues and that would have helped in his decision. He accepted, though, the comment of the superintendent was to encourage him not to seek committal and that the cost saving was seen as attractive.
   [79] By October 1963 Mr and Mrs S were still living together although the marriage was clearly at an end. Mr Mettrick had visited Mr G and reported to the superintendent in 1963 that Mr G thought the children were adopted. He told Mr G of the Ss and the children’s situation. Mr G was happy for the children to remain where they were. Mr Mettrick reported that Mr G’s main concern seemed to be to avoid having to take the children back.
   [80] By April 1964 Mr Mettrick was able to report that a local doctor had seen Mr and Mrs G who wanted Mrs S to have full care of the children. The Gs made it clear they could not cope with the children and “as they have never seen them [ (2002) 22 FRNZ 39, 58]since the children were placed with the S’s they do not consider any further contact advisable. They do not appear to have any emotional ties with the four boys.”
   [81] By July/August 1964 Mrs S had formally separated from Mr S. She began living with the boys in a rented house opposite the T School. It is appropriate at this stage to interpolate the evidence of the plaintiff. When the Ss began finally living apart, the plaintiff was 5 years and 8 months old. He says that prior to the Ss’ separation he was physically abused by Mr S and sexually assaulted and physically abused by M S.
   [82] In particular he recalls assaults by Mr S on Mrs S. He recalls Mr S beating M S and hitting himself and his brothers. As to M S’s sexual assault, the plaintiff described it in his brief of evidence in this way:
   “8.During this time at the S’s, M S exhibited very strange behaviour. He would chase me around the house and would pin me on the ground with my arms spread out. He would kneel on top of me and bring his penis out. Sometimes I was facing the ground and sometimes I was facing up. His penis was poking me. I would scream and yell and my mother would come running out and scream at him to get off. The weight of his knees on top of me was very painful.
   “9.When I was about 5 1/2 years old, not long after starting school, M S had me pinned down and my trousers off. I yelled and screamed. This time my mother was really angry, she actually attacked M S with the broom. He had put his penis in my bottom.”
   [83] At that time M S would have been 30 years of age and of limited intelligence. The plaintiff said in cross-examination that he believed he had been subject to anal intercourse by M S and that this occurred on more than one occasion. The defendant submits I should have doubts about whether these events, particularly the sexual assaults, actually occurred. Clearly caution is required when assessing an allegation of sexual assault 35-plus years ago, especially where the Court is reliant on a memory of a 5-year-old child.
   [84] The plaintiff’s memory of the incidents involving being pinned on the ground by M S and M S exposing his penis seemed more vivid than the descriptions of anal intercourse. It seems probable that anal intercourse between an adult and a 5-year-old boy is likely to cause the boy significant pain and probably physical damage, especially considering the suggestion that it occurred on more than one occasion.
   [85] I have no doubt at all that the plaintiff was physically and sexually assaulted by M S. He is able to describe the events in some detail. There was nothing I heard or saw that made me suspect that the plaintiff was other than genuinely trying to recall events as honestly as he could. I am less certain about the reliability of the allegations of anal intercourse by the plaintiff. For the purpose of this case, the distinction between what M S clearly did do (indecently assault the plaintiff) and what he may have done (have anal intercourse) is not of significance. In saying this I do not doubt the genuineness of the plaintiff’s belief that this happened to him. I am concerned, though, about the lack of detail regarding the allegation of anal intercourse, the fact that the number of occasions grew from the one described in his evidence at para 9 and the plaintiff’s response in cross-examination that these sexual assaults involving anal intercourse occurred on a number of occasions. In assessing whether the events occurred, as I have said at [ (2002) 22 FRNZ 39, 59]the beginning of this judgment I take into account the passage of time that has passed and the age of the plaintiff at the time.
   [86] The plaintiff has described his impression of his pre-August 1964 environment as “unhappy”. The violence seems to have been mainly from M S with some from I S. Mrs S was looked upon by the plaintiff as someone who protected him.
   [87] The plaintiff says that when the Ss separated a review of the position and future of the children should then have taken place. The plaintiff says he should have been made a State ward. This, he says, would have given him financial advantages, clarified his legal status, ensured a close check on his circumstances and clarified the name he was to be called. He complains that the decision not to make him a State ward was motivated by saving money.
   [88] The plaintiff points out that when Mrs S and the boys shifted to T the Infants Act licence would have lapsed. I accept the licence would have lapsed, it was specific to a particular house. The Child Welfare file is silent as to whether or not a further application was made and granted. I have no doubt that if such an application had been made by Mrs S, it would have been readily granted by Child Welfare. They had nothing but praise for her care of the children. It is impossible to know now whether further application for an ILP licence was made. The file is not complete. I note the licence was only required for a further 4 months of C’s life given he was 5 years and 8 months when Mrs S left T. Thus, while there may be doubt about whether Mrs S was committing an offence under the Infants Act by having plaintiff with her for a period of 4 months without a licence, this was no more than a technical oversight. There can be no doubt that Child Welfare would have granted a licence given their observations that Mrs S was an excellent parent to the boys.
   [89] All the Child Welfare officers called to give evidence rejected any suggestion that they would have let money influence their decision on committal proceedings. Having seen them give evidence, I accept they were all genuinely motivated to do their best for the children in their care. I accept they would not have let financial advantage to the State push them from the proper path. The observation by the superintendent relating to the cost advantage had the flavour of an attractive consequence rather than a direction. And the economics of the arrangement were raised by management not the local operative who had the decision to make.
   [90] I accept the criticism of the plaintiff that there was insufficient appreciation of, or understanding by, Child Welfare of the importance to the plaintiff of having a guardian who could participate in his life. There was no real consideration of the guardianship issue in the reports or correspondence of Child Welfare. Nor in cross-examination did the Child Welfare officers show a real appreciation of the importance of the function of a guardian to a child. Thus this important function did not seem to feature in the factors to be balanced by Child Welfare in deciding whether to apply for committal. As has been observed, there was no reason why Mrs S could not have continued to look after the plaintiff after a committal order.
   [91] It is proper that Child Welfare were concerned that the stigma of committal proceedings could upset the arrangements with Mrs S. They were also conscious of the social attitudes at the time. Being a state ward carried a substantial stigma. It [ (2002) 22 FRNZ 39, 60]seems clear that State agencies were most reluctant to apply for a committal order. It was used “sparingly”.
   [92] In February 1964 the plaintiff had started school at H. By late in 1964 he and his family shifted to T and he began attending T School.
   [93] The plaintiff and his family lived in rented accommodation at T for 3 years until the shift to K in August 1967. During these 3 years the Child Welfare file is sparse. The written material can be summarised as follows. Eleven memoranda typically from the local Child Welfare officer to the superintendent seeking continuation of the Needy Family Assistance or money for clothes. During these 3 years there are notes recording renewal of preventive supervision. There are no direct reports of any visits to the S household nor any reports on the welfare of the children. It is clear that the Child Welfare file is not complete. Child welfare officers gave evidence of how a Needy Family or preventive supervision file would typically look while in operation. They said that during and after each visit by Child Welfare officers the officer would make a hand-written note in his/her notebook about the visit. This note would subsequently be typed and put on the relevant file. They observed that the file from 1964-67 had none of these notes. Their view was that in purging this file it is probable the CWO notes were removed and discarded for this period.
   [94] There are 3 aspects of evidence relevant to CWO visits to the Ss’ household during this time.
   (1)The plaintiff’s evidence. Self evidently it is difficult for the plaintiff to recall now what happened between 34 and 37 years ago when he was a young boy. His recollection is of Ms Fisher visiting in 1965.
   (2)The officers’ manual suggested that there should be approximately 4-monthly visits to the household.
   (3)Child Welfare workers who gave evidence were confident that there would have been regular visits throughout the time the plaintiff was with Mrs S. For example Ms Cochran who worked in Child Welfare and then Social Welfare from 1957 to 1989 believed she would have visited the family and reviewed the Ss’ situation about every 3 months. She accepted children on preventive supervision would be less of a priority than State wards but there would be regular visits all the same. Miss Fisher who was a CWO and a senior CWO from 1946 to 1969 in the R office thought Child Welfare would visit the home about every 3 months.
   [95] A number of the internal memoranda record that Mrs S was seeking clothing grants for the boys, suggesting at least some form of contact between Child Welfare and the S family. There are records of visits before and after 1964-67 to the S household by CWOs which illustrate regular visits. Mr Elder was the BWO (Boys Welfare Officer) for the region during this time. He was described by Mr Mettrick, his supervisor, as a reliable and conscientious social worker. Mr Mettrick rejected any suggestion that the S family had been hardly visited over this period of three to four years. It is of significance that from 1967 Mr Elder recorded an intense and regular regime of visiting the family.
   [96] I can see no evidence that on balance convinces me that suddenly these children were abandoned by Child Welfare during 1964-67. It is clear that a regular and proper eye was kept on Mrs S’s financial circumstances as is reported in the correspondence. Regular assessments of family income and expenditure and [ (2002) 22 FRNZ 39, 61]the boy’s clothing needs were made. It is inconceivable that regular visits to the family suddenly ceased for the three-to-four-year period. Indeed, apart from the lack of direct written notes of the visits all the evidence points towards visits occurring. On balance I am satisfied they did continue.
   [97] It is during this time through until 1967 that the plaintiff says Mrs S’s regular Friday night beatings began. He described them in this way at para 17 of his brief:
   “During the time at T my mother seemed to change. Previously at H, it was I and M S who did the bullying and scared the hell out of me. My mother Mrs S would tell us to have a bath. She would yell for us to get out. Just after we would get out, she would suddenly burst into the bathroom and say that you are due for your weekly. A weekly meant that we would get a thrashing. She would turn me around and lay into my back, backside and upper legs with a black dog collar which had studs on it. I got beatings with this dog collar until I was about 14 years of age.”
   [98] I have no reason to doubt the plaintiff’s evidence in this regard. His evidence was detailed and consistent throughout his evidence in chief and cross-examination. I accept these events occurred as described by him. I will return to the question of whether they could reasonably have been known about and/or prevented by Child Welfare later in this judgment.
   [99] In August 1967 the family shifted to a new house in K. The plaintiff described the condition of the house in this way.
   “The house at K was disgusting. The kitchen and the lounge were one room together, with a large coal range in it. There were only 2 bedrooms. My 3 older brothers stayed in one bedroom. I stayed in Mrs S’s bedroom and slept in her bed. The bedroom was too small to have another bed. Outside was the smelliest toilet, it was a big hole in the ground with a tin shed quite a distance from the house.”
   [100] The family lived in this house until the shift back to T in July 1968. During the year at K the plaintiff describes his “weekly” beatings with the dog collars as becoming more severe.
   [101] At this time Mrs S’s sexual abuse began, he describes it in this way:
   “In 1967, not long after I had turned 9, Mrs S would come to bed not long after I was in bed and start this strange behaviour. She would take my hand and start rubbing herself. To me it was a sticky hairy feeling and she would make unusual breathing noises. Sometimes I would ask if she was alright and she would say ‘you are just warming me up’. I had not wet my bed when my mother came to bed however when I woke in the morning I had still managed to wet the bed.
   “Masturbating my mother while sleeping in her bed continued until about July 1968, when we shifted back to T. In about February 1968, while we were still at K and not long after school started for the year, Mr Elder from the Social Welfare Department began visiting us.”
   [102] I have no reason to doubt the plaintiff’s evidence about these incidents they are detailed and consistent. I accept the abuse happened as he described.
   [103] Again it is not clear whether the written records of Child Welfare contained all the original information on the file during this time. However, three entries are of particular interest.[ (2002) 22 FRNZ 39, 62]
   [104] Firstly, Mrs S sought money for N (F G) for his high school uniform. This was granted by Child Welfare.
   [105] Secondly, Mr Elder (the CWO) records Mrs S calling into the office on her way home from a holiday in the Marlborough Sounds with the boys.
   [106] Thirdly, the record of a visit by Mr Elder in February 1968 to the K house the full report of which is as follows:
   “G Family 27.2.68GMSE/SACWhen I called at K this afternoon I found X and M at home. I was told that B was in bed with a sore tummy. Mrs S was in town with their pastor helping with missions but was expected home at about 4 pm.Both X and M told me that they were enjoying the new school and that the Headmaster, Mr C, was taking a personal interest in their progress. Both boys said that they enjoyed this school much better than at T. As I did not have the time on this occasion to wait for Mrs S, I told X that I would call again next week and that he should let Mrs S know that I had called today.”
   [107] Mr Elder then records visits to the S household on 7 March, 4 April, 23 May, 13 June, 29 June all in 1968. Thus there are records of Mr Elder visiting the K house on five occasions in 5 months. He makes no adverse comments about the condition of the house. On at least two of the visits Mrs S was not present but the boys were present. Mr Elder had plenty of opportunity to look around the house. I am sure if he thought the living conditions were as bad as described by the plaintiff he would have said something in his report and looked for more suitable housing. All his reports at this time are positive about the boys and Mrs S and nothing adverse about the housing condition is recorded.
   [108] Within a few weeks of Mrs S’s shift back to T in July 1968 Mr Elder visited the house. The notes made by Mr Elder after each visit are exactly the type of notes one would expect to be made in such circumstances. There is no reason to think that Mr Elder suddenly began visiting in March 1968 when the notes start. The regularity of the visits show Mr Elder as conscientious and attentive to the family needs. It seems clear that he had developed a relationship with Mrs S and knew the family circumstances well. I accept that the plaintiff seems to have little recollection of regular visits by Mr Elder, although he does concede some. But I consider there is no reason to doubt that Mr Elder was a regular visitor at the S household.
   [109] Mr Elder’s observations about the boys’ circumstances during this time are all positive. For example Mrs S had arranged for the local pastor to help N with his high school homework, the other boys, including the plaintiff were “going ahead by leaps and bounds” and in Mr Elder’s assessment generally looked well and in good spirits.
   [110] Mrs S and the boys shifted back to T in August 1968, and in May 1969 a further shift to A. In March 1968 Mr Elder had this to say about contact with the Gs by a note of his visit:
   “Everything seems to be going well here at the present time but as the boys were circulating through the house during my visit I didn’t discuss future contact with their [ (2002) 22 FRNZ 39, 63]parents with Mrs S but intend to do so when I next visit and will ensure that I arrive before the boys are home from school.”
   [111] It is difficult to know now what to make of the reference to future contact with the boys’ parents. For example, whether there was a regular discussion with Mrs S about contact with the Gs is impossible to know now. No visits in fact occurred.
   [112] As well as visiting the family Mr Elder regularly monitored the family’s financial circumstances and made recommendations relating to Needy Family Assistance and clothing allowances to his departmental managers.
   [113] Mr Elder’s notes from August 1968 through to late 1969 illustrate the attention he gave Mrs S and the boys. Over this period Mr Elder has recorded approximately 15 home visits. He dealt with such diverse matters as clothing for the children, assisted with school bus fares, provision of 10 hens to the family, holiday arrangements, the provision of a bicycle, rental accommodation in the area, dental treatment for one of the boys and many others. He made observations throughout about the boys, their welfare and their living conditions. During this time the family shifted several times. The explanations for the shifts were, the need for a larger home, better access to public transport, and the landlord requiring a house for his own family. Mrs S was always going to be vulnerable to landlord needs while she was renting.
   [114] By 1969 Mrs S was in receipt of a benefit paid by Social Welfare plus an allowance for the children. Mr S had proved to be unreliable in paying maintenance for Mrs S.
   [115] During this time the plaintiff says Mrs S’s physical abuse continued. He complains about a particular form of punishment introduced by Mrs S at the A residence. Again I have no reason to doubt this evidence. He says:
   “Not long after we shifted to A, Mrs S used some different forms of punishment. When the toilet needed emptying she would, as a form of punishment, make me empty the toilet. I was only 11 when I first started to have to do this. I had to dig a hole and then try and lift the sewage out. I did not have the strength to do it and it would spill all over me. This form of punishment became quite regular. The other form of punishment was that I would get sent to my bedroom to eat only bread and water in the dark.”
   [116] By late 1969 the plaintiff says he was effectively forced to work at a local market garden on a Sunday and to give Mrs S the money he earned. He acknowledges some of his earnings were spent on work clothes for him. He says he rode 15 km there and 15 km back each Sunday on his bike, summer and winter from 1969 to 1974. Child Welfare officers observed that such work was common and often expected from children in rural New Zealand in the 1960s. Children were expected to contribute their wages to the family finances. They did accept that the additional travel by the plaintiff was an unusual burden.
   [117] In the early 1970s the plaintiff says Mrs S told him his birth mother had died and she (Mrs S) had adopted him. The plaintiff says he was still beaten by Mrs S but now by a curtain rail rather than this dog collar. He said that Mrs S “kept saying that if it was the last thing she would do she would teach me to honour my mother and to be obedient”.[ (2002) 22 FRNZ 39, 64]
   [118] Mr Holland was the new Child Welfare officer. He recorded regular visits to the home. It is clear from his reports there were the same financial pressures on the household. He mentions consideration of special schooling being given to some of the boys and continuing to monitor Mrs S’s financial circumstances.
   [119] In late 1970 some concerns were expressed by the headmaster of the local A school particularly about the plaintiff. It is useful to reproduce Mr Holland’s notes of these discussions:
   “2.11.70
   “Mr Y, A School phoned. Doesn’t know the boys status with us but has been a little concerned about them recently and would like to discuss.
   “The older boy is due for secondary school next year which causes some concern because of his limited ability.
   “The second boy B, shows signs of becoming anti. Is anti towards Mr Y who says he isn’t hard on him. Mrs S a bit difficult to talk to. Fears that he may become anti-man followed by anti authority. Mr Y’s will against B’s will now.
   “Have said Mr Holland will call.”
   “5.11.70
   “Called on Mr Y at A School. He was unfortunately attending a meeting at U Intermediate for the day but Mrs Y knew something of the situation as had already been outlined to Miss L. Arranged to call next week after telephoning first from the U Court.”
   “12.11.70
   “Called on Mr Y, Head teacher, A School as arranged. He feels that each of the three boys at school present different problems which could be based on the lack of a male figure in their home background.
   “X, who has grown into a tall well built boy is to attend W BHS next year. He is a very retarded learner and Mr Y feels he will find difficulty settling at a school where little provision is made for the slow learner. While outwardly polite and co-operative X can be boisterous and ill mannered if he thinks he is not being observed. Mr Y has had no indication if Mrs S is going to enrol X and asked if I would check this.
   “B who is in Std 3 is the brightest of the G children and his IQ is estimated at 110. Mr Y feels that he realises his brother’s limitations and that the boys do miss out on what many boys accept as their right. He can be resentful at times and has brought about occasional confrontations with Mr Y.
   “M is described by Mr Y as being ‘dumb but delightful’.
   “Mr Y also asked that the school be furnished with a copy of the boys correct names and dates of birth as the lack of [documents] has caused confusion in the past. I undertook to supply this.
   “I later saw Mrs S and confirmed that she will be enrolling X at W Boys at the appropriate time. No doubt we will have to give assistance with uniforms.
   “In the light of Mr Y’s comments I feel more regular visiting and closer contact with the school will be necessary in the future.”
   “26.11.70
   “Correct names and ages supplied to Mr Y. I agree that visits may have to be increased.”
   â

   Comment by MurrayBacon — Mon 26th May 2014 @ 5:50 pm

5. 

   [136] Where damage is not an element (here assault and battery), the cause of action arises when the plaintiff reasonably understands he has not given free and considered consent.
   [137] The defendant says that I should treat the negligence, breach of statutory duty, and fiduciary duty actions as effectively assault and battery cause of action. I do not accept this submission. The plaintiff’s case can be characterised in this way; that the defendant by its negligence/breach of statutory/breach of fiduciary duty allowed the plaintiff to perpetuate the abuse which in turn caused the plaintiff’s psychiatric disability. While the assault and battery are essential elements of these causes of action they are no more than part of it. I reject that approach.
   [138] I have reached the conclusion that the cause of action based on assault and battery must fail as being statute-barred, but the actions in negligence, breach of statutory duty, breach of fiduciary duty are not so barred.[ (2002) 22 FRNZ 39, 68]
   [139] Firstly dealing with assault and battery. This causes of action accrues when the incident upon which it is based occurs, or at least the action that underlies the causes of action occurs. Here the sexual and physical assaults. The period is extended to the plaintiff’s majority. It will be extended further if the plaintiff can establish that he did not give free and considered consent to the events.
   [140] In this case the plaintiff knew at the time and has always known of the sexual and physical abuse which are the essence of the causes of action. His evidence on this was clear. He fought both M S and Mrs S when they assaulted him. He tried to get away. He did not consent. And with M S’s sexual abuse he describes fighting to get away and the fact that M S was too strong and pinned him to the ground. The plaintiff does not claim nor suggest in his evidence that he did not understand what was happening to him, nor does he claim that he consented to the assaults in any way. Indeed, as an example, he gave evidence that as he got older he was able to effectively fight off Mrs S’s assaults with a dog collar who then switched to a curtain wire. The plaintiff has always been aware of these events, and that he did not consent to them indeed he was understandably indignant that they were perpetrated on him.
   [141] Mrs S’s sexual abuse is in a rather different category. While clearly the plaintiff did not like the experience he did not understand it was sexual abuse or what it meant until his early adulthood. I accept that he did not understand the true import of her abuse of him when it happened. He described it as uncomfortable and something that he disliked. Given the act complained of it would have required some participation by him. However, I am certain that by the plaintiff’s early 20s when his experience of life as a young adult included employment and university study for a Bachelor of Education degree he understood what had happened and that what happened was wrong. Indeed, while he was reluctant in his evidence to truly concede this, I am in no doubt at all by the age of 22 or 23 in 1980 or 1981 he was well aware that he had been sexually abused by Mrs S and that sexual contact between them was wrong and inappropriate. This was still 15 years or more before the proceedings were filed. Thus the only aspect of lack of true consent was “cured” by his knowledge by early 1980-81.
   [142] The Court of Appeal in P v T [1998] 1 NZLR 257; (1997) 11 PRNZ 340 (CA) at p 260; p 343 said:
   “The cause of action in battery accrued when force was applied to P’s body without her consent. The only reasonable conclusion from P’s own evidence is that both elements were satisfied when the incident occurred. In para 8 she deposes to the physical act of force against her. Clearly she was aware of the first factual ingredient. She continues: ‘I held my arms up and called out “no” ‘. She was not consenting to what was happening to her. At the time of the incident she was not consenting and as an adult knew that she was not consenting. On the facts it is an uncomplicated case. It does not raise any question as to reasonable discoverability. Indeed, it is inapt to speak of later discovering what she had known at the outset.”
   [143] This case is similar. It does not as far as the assault and battery cause of action is concerned raise any issue of reasonable discoverability other than the sexual abuse by Mrs S. The discovery of its true meaning would have occurred to the plaintiff within a few years of him turning 20 years. By this time therefore the cause of action accrued. Thus the latest for filing these proceedings would have been 1987-88. On this basis the plaintiff’s claim is barred by the Limitation Act.[ (2002) 22 FRNZ 39, 69]
   [144] The plaintiff says even if it is found under this section that he filed his assault and battery cause of action outside the time allowed by the Limitation Act time is extended because of the plaintiff’s disability.
   Limitation Act/disability
   [145] The plaintiff claims that his delay in issuing proceedings is excused because he was under a disability (s 24(a) Limitation Act). Pursuant to s 24 a right of action accrues when the person ceased to be under a disability.
   “24. Extension of limitation period in case of disability-
   “If, on the date when any right of action accrued for which a period of limitation is prescribed by or may be prescribed under this Act the person to whom it accrued was under a disability,-
   “(a)In the case of any action in respect of the death of or bodily injury to any person, or of any action to recover a penalty or forfeiture or sum by way thereof by virtue of any enactment where the action is brought by an aggrieved party, the right of action shall be deemed to have accrued on the date when the person ceased to be under a disability or died, whichever event first occurred; or
   “(b)In any other case the action may be brought before the expiration of 6 years from the date when the person ceased to be under a disability or died, whichever event first occurred,-
   “Notwithstanding that, in any case to which either of the foregoing paragraphs of this section applies, the period of limitation has expired:”
   [146] Section 2(2) of the Limitation Act provides:
   “(2)For the purposes of this Act, a person shall be deemed to be under a disability while he is an infant or of unsound mind.”
   [147] In T v H [1995] 3 NZLR 37 (CA) Hardie Boys J at p 49 in considering s 2(2) said:
   “I have no doubt that one who from established psychiatric or psychological causes is unable to bring him or herself to initiate proceedings is to that extent of unsound mind and so under a disability while that condition lasts.”
   And Tipping J p 61:
   “A plaintiff claiming a disability by way of unsoundness of mind must, in my judgment, show two things: first that the alleged unsoundness pertains to a part or facet of the mind relevant to and sufficiently inhibiting the capacity to sue; and second that the alleged unsoundness results from a demonstrable and recognised mental illness or disability rather than being just an inability to face up to the process of suing. In short the plaintiff must show that he or she was relevantly disabled by unsoundness of mind.”
   [148] In my view the plaintiff does not suffer from unsoundness of mind in the sense referred to by the Court in T v H (supra). The evidence of Dr Crawshaw which is effectively unchallenged is that the plaintiff suffers from PTSD (post-traumatic stress disorder). He says the accused has suffered from this disability for all of his adult and probably some of his teenage life. The plaintiff and Dr Crawshaw’s list of symptoms include excessive alcohol consumption, poor employment record, inadequate personal relationship, depression, avoidance of [ (2002) 22 FRNZ 39, 70]child memories, memory flashbacks and others. None of these symptoms relate directly to the plaintiff’s capacity to analyse and solve a problem. Indeed in this area the plaintiff seems to have functioned well. To illustrate the point the plaintiff held down a significant position with I for almost 8 years, typically with high praise for his performance. He passed School Certificate, gained University Entrance and passed two credits at university. While he had a somewhat erratic job performance he was a person capable of handling a good quality job with expertise. He was well organised and well thought of. He was able to express his own opinion firmly about issues. And most significantly when he did recognise he had a right to sue Mr S, M S, Mrs S and Social Welfare, he did so with skill and determination. He persisted in obtaining access to his Social Welfare file. He sought further legal advice when the initial advice told him could not sue. He tracked down and spoke to Child Welfare officers who looked after his family in the 1960s. Then he instructed counsel to bring and conduct these proceedings. This was during a time when Dr Crawshaw and the plaintiff said his PTSD had become more acute. There is no evidence that plaintiff’s PTSD or his depression inhibited his capacity to sue at all. At the very time when his PTSD and depression may be seen to be at its worst he was able to bring together the facts which constitute his case and to instruct counsel and to institute proceedings. I therefore conclude that the plaintiff was not under a s 24 disability at any relevant time.
   Negligence/breach of statutory duty/breach of fiduciary duty
   [149] The plaintiff says that for two reasons these causes of action did not accrue until early 1995.
   (a)Until February 1995 he did not have sufficient information to understand he had a cause of action against the defendant; and
   (b)Until about February or March 1995 the plaintiff had not made the link between the abuse he had suffered as a child and the psychological conditions he suffered as an adult.
   [150] In each of these causes of action once the “duty” and the “breach” are established the plaintiff must show a causal connection with any proved psychiatric disability (the damage).
   Child Welfare connection and insufficiency of information
   [151] The plaintiff says he did not have sufficient information about Child Welfare’s involvement in his life to understand that he may have a cause of action against them until early 1995. In July 1993 Mrs S died. Her death and her funeral clearly had a profound effect on the plaintiff. It was then he says he began for the first time to consider the role Child Welfare had played in his life. Shortly afterwards in July 1993 the plaintiff sought a copy of the Child Welfare file. It is clear the plaintiff had problems in obtaining the full file from Social Welfare. It is clear that the file the plaintiff was given in September/October 1993 by the defendant was incomplete. Further parts were released in February/March 1994 (see Mr S’s affidavit of 23 September 1996 which records the date of request as late 1994 and the date of further information in February/March 1995. These dates are not correct. Documents numbered 208, 210, 211, 212, 213 and 216 illustrate the plaintiff is 12 months out in his dates). The plaintiff had most of the Social Welfare file that was available by February/March 1994 and he was in a position to [ (2002) 22 FRNZ 39, 71]assess the link between Social Welfare’s actions and his circumstances for the first time by this date.
   [152] The defendant says that in fact the plaintiff was in a position to make this link by age 20. They say he knew by then he had been adopted, that Child Welfare had been monitoring him, that they had failed to protect him and that the abuse had occurred. I do not accept this analysis of the facts. The plaintiff did know by 20 years of age that he had not been adopted but had been fostered. He did know that Social Welfare had visited over the years. But he did not know, nor I think even imagine what if any role Social Welfare had or should have played in his life. He knew nothing of the circumstances under which he came to be with the Ss, of the proposed adoption, of his natural parents’ attitude, of the consideration by Child Welfare of his legal status or of any decisions Social Welfare made concerning his welfare. Nor had he linked at all his physical and sexual abuse with inadequate Child Welfare action. This was hardly surprising given he knew little or nothing of the facts surrounding Child Welfare’s involvement in his life. And in addition, as I discuss shortly, it was not until about this time in any event that the plaintiff made a connection between the abuse he suffered and his emotional and psychological state.
   [153] Applying the reasonable discovery test (see Invercargill CC v Hamlin [1994] 3 NZLR 513 (CA); and S v G [1995] 3 NZLR 681; (1995) 8 PRNZ 465; 2 HRNZ 11 (CA)) to the plaintiff’s actual discovery of Child Welfare’s involvement in early 1994 I cannot see it could reasonably be said that the plaintiff should have discovered this part of the connection earlier. The link with Child Welfare was of course once removed from the primary source of his abuse the S family and thus less clear. Child Welfare’s involvement in his life was in his eyes no more than an occasional visit during his childhood. A sophisticated appreciation of the link between Social Welfare’s involvement and his abuse was required. And an appreciation that there may be facts to be found relevant to Child Welfare’s involvement in his life was also required. It is hardly surprising he did not consider any such links until the traumatic events surrounding Mrs S’s death.
   Link between abuse and psychological disability
   [154] As well as having sufficient information to understand he had a cause of action against the defendant, the plaintiff had also to make the link between the abuse he suffered as a child and his psychiatric disabilities. The plaintiff says the earliest this link was made was February/March 1995. The defendant says the plaintiff had knowledge of all the essential aspects either by the time he turned 20 years or shortly afterwards.
   [155] A brief history of the plaintiff’s life from his late teens to the commencement of these proceedings is necessary. In addition, part of the evidence of Dr Crawshaw is relevant here. In 1980 the plaintiff enrolled for a Bachelor of Education at M University. He passed two units part time. In 1981 he worked for T and as a petrol pump attendant. He was fired from both jobs. Between 1982 and 1985 he was a L management trainee. In 1986 he began a photolithograph apprenticeship but by 1988 this was terminated. In the meantime he was drinking heavily. He married in 1987 but the marriage did not last beyond a year. In 1989 he was hired and fired as a purchasing officer for D. In 1991 he began working for I and worked continuously for them until 1997. He then left I and for 15 months [ (2002) 22 FRNZ 39, 72]received ACC weekly payments as a result of a disability arising from his sexual and physical abuse.
   [156] In 1993 he attended his mother’s funeral. He discovered then that his natural mother had not died in childbirth as Mrs S had told him but had lived until 1982. From this time on he began a gradual process which discovered the facts of his childhood and began dealing with his psychological disabilities. In 1995 he confronted Mr I S and M S about their abuse of him. In 1996 Mr I S died. And in April 1996 the plaintiff began counselling.
   [157] It is clear from 1978 to 1993 the plaintiff had a number of problems coping with his day to day life. These included excessive alcohol consumption, problems with keeping employment and unstable relationships. After Mrs S’s funeral as his focus turned to the events of his childhood his mental health deteriorated. He had serious episodes of depression and a lengthy period off work. His focus after 1993 became the abuse he had suffered and the causes. This contributed to his deteriorating health in the mid-1990s. No doubt this abuse was at the background of his unstable and unhappy adulthood to that time.
   [158] Dr Crawshaw a forensic psychiatrist has prepared two reports for the Court pursuant to s 100 of the Judicature Act. He also gave evidence and was cross-examined about his conclusions. I am conscious in assessing Dr Crawshaw’s evidence that this is not trial by expert and that I must bring an independent analysis to his evidence and especially his conclusions. The thrust of the defendant’s criticism of Dr Crawshaw’s evidence is that it is effectively irrelevant because the plaintiff knew at 20 years of age all the elements of the cause of action. Dr Crawshaw concluded that the plaintiff had PTSD and has had from time to time moderately severe depression. He believes there is strong evidence that the plaintiff’s adult problems with PTSD and his depression have their origins in his childhood and emotional, physical and sexual abuse. Dr Crawshaw reports that understandably the plaintiff had tried his best to have a normal life and avoid talking or thinking about his childhood experiences. He believes that the plaintiff did not understand the link between his problems as an adult and his childhood until he began counselling. The need for and decision to have counselling in turn was triggered by the death of one of his abusers Mrs S. Dr Crawshaw says this is a common reaction to the death of an abuser.
   [159] Dr Crawshaw considers that PTSD has prevented the plaintiff from making the connection between his childhood abuse and his mental health problems. He said:
   “95.1I have previously concluded that [the plaintiff] has PTSD. This is a condition that is characterised not only by severe and often incapacitating psychological symptoms but as part of the condition there is an avoidance of triggers and reminders of the trauma. As part of the trauma syndrome [the plaintiff] sought to avoid his memories and anything that might trigger the memories of his childhood abuse.”
   [160] Indeed Dr Crawshaw considers that PTSD has dominated the plaintiff’s adult life. I see no reason in the defendant’s cross-examination or in a consideration of Dr Crawshaw’s evidence to disagree with these conclusions. Dr Crawshaw was very much alive to the question that his diagnosis was dependant upon the plaintiff telling the truth about his past. I have already found that the [ (2002) 22 FRNZ 39, 73]essence, if not every detail of the plaintiff’s report of his abuse is reliable and credible. The plaintiff’s evidence of his own life as an adult and the developing trauma from his childhood all had for me a powerful fit with reality. I therefore accept Dr Crawshaw’s evidence that it was reasonable for the plaintiff not to have earlier made the link between the abuse and his psychological and emotional condition. I find that the plaintiff in fact had made this link by the time he decided to try and sue both M S and the Department of Social Welfare in March 1995. The fact he was instructing lawyers to sue arising from his childhood abuse clearly illustrates he had made the link. His evidence makes it clear after Mrs S’s funeral in 1993 he began an intense inquiry to find out what had happened to him. He was in part delayed by a lack of factual information from Child Welfare. He began talking to others about what happened to him. This all culminated in his decision to consult a lawyer in March 1995. His realisation of the link no doubt occurred before his actual visit to the lawyer. But for this purpose March 1995 is a proper and appropriate date.
   [161] It is appropriate to take the latter of the two link dates of March 1995. Clearly the plaintiff had to make both links before he could bring these proceedings. Although on the facts of this case it would not have mattered whether the earlier date was taken. As was the custom the plaintiff notified the defendant by letter in April 1996 of his intention to sue, and in September 1996 filed an application for leave. Both of these dates are well within the 2 years from March 1995. Even if the date had been February/March 1994 and the notification of filing the proceedings outside the 2 years, I would in the circumstances of this case have given leave to bring these proceedings. The delay was modest, the plaintiff proceeded as soon as he reasonably could have been expected to discover the cause of action. If the appropriate date for bringing the proceedings is the filing of the statement of claim then I would extend time to that date. I therefore allow the cause of action based on negligence (vicarious liability based on negligence) and breach of statutory and fiduciary duty to proceed.
   Mistake: s 28(c)
   [162] The plaintiff has also claimed that he suffered from a mistake pursuant to s 28(c) of the Limitation Act and thus the period of limitation should not run until he discovered the mistake. The plaintiff’s action is not as s 28 requires “for relief from the consequences of a mistake”. The plaintiff did not attempt to identify any such mistake nor relate any mistake to his cause of action here. There is nothing in this ground and I reject it.
   [163] I have therefore concluded that the Limitation Act prohibits the cause of action based on assault and battery (vicarious liability), and I have concluded that the plaintiff may proceed with his claim based on negligence, breach of statutory duty and breach of fiduciary duty.
   Accident compensation/compensatory damages
   [164] The defendant says the plaintiff’s claim for compensatory damages is barred by the Accident Rehabilitation and Compensation Insurance Act 1992 (“ARCI”). The plaintiff sought cover under the ARCI on 20 June 1996 for the psychiatric effects of childhood sex abuse. On 17 September 1996 the plaintiff’s claim for an independent allowance was granted arising from a corporation [ (2002) 22 FRNZ 39, 74]assessment of the plaintiff’s disability at 69 percent. This disability arose as a result of their assessment of the effects of childhood sexual abuse on the plaintiff.
   [165] From 8 July 1997 to 21 February 1999 the plaintiff was off work and as a result of his assessed disability received weekly compensation payments from the corporation based on his previous weekly earnings.
   [166] The process by which the plaintiff has received compensation is as follows:
   (1)The plaintiff it is alleged has suffered nervous and mental shock. Section 8(3) of the ARCI Act provides:
   “8. Cover for personal injury occurring in New Zealand-
   …..
   “(3) Cover under this Act shall also extend to personal injury that is mental or nervous shock suffered by a person as an outcome of any act of any other person performed on, with, or in relation to the first person (but not on, with, or in relation to any other person), being-
   “(a)An act that is within the description of any offence listed in the Schedule 1 to this Act; and
   “(b)An act that was performed in New Zealand, or outside New Zealand where the person on, with, or in relation to whom the act was performed was ordinarily resident in New Zealand when the act was actually performed (even if the person is ordinarily resident in New Zealand on the date on which the personal injury is deemed to have been suffered).”
   (2)Section 63(3) of the Act provides:
   “63. Claims-
   …..
   “(3) For the purposes of this section, where a claim involves medical misadventure or conduct of a kind described in section 8(3) of this Act, the personal injury shall be deemed to have been suffered on the date on which the person first received treatment for that personal injury as that personal injury, being treatment of a kind for which the Corporation is required or permitted to make payments either directly or under an agreement or contract or arrangement under section 29A of this Act, irrespective of whether or not it makes any payment in the particular case.”
   [167] Thus, although effectively all of these events occurred prior to the introduction of accident compensation in New Zealand (1 April 1974) s 63(3) deems the date on which the plaintiff first obtained treatment for the mental or nervous shock (here 1992/1993 at the earliest) as the date on which he suffered the injury for the purpose of cover under the Act. 1992/1993 was the date on which the plaintiff first consulted Dr Dumphy his General Practitioner. The date could also be 1996 when he first consulted a psychologist Ms Cunningham. For this purpose the difference is irrelevant.
   [168] Thus to obtain cover under s 8(3) the plaintiff had to show:
   (1)That he had a mental injury which was suffered as an outcome of an act performed on him by another person.
   (2)The act performed on him was within those offences in the First Schedule to the ARCI Act.[ (2002) 22 FRNZ 39, 75]
   [169] Dr Crawshaw’s evidence was that the plaintiff suffered from PTSD a mental injury as a result of the sexual, physical and psychological abuse he suffered as a child. Thus it seems clear he had a mental injury which was suffered as an outcome of an act performed on him by the other person. The other persons of course were Mr S, Mrs S and M S.
   [170] The act performed on him must be an act which is included in the offences listed in the First Schedule. The First Schedule includes s 128 of the Crimes Act, the offence of sexual violation. Sexual violation relevantly here is defined as:
   “128. Sexual violation-
   (1) Sexual violation is-
   …..
   “(3) A person has unlawful sexual connection with another person if that person has sexual connection with the other person-
   “(a)Without the consent of the other person; and
   …..
   “(5) For the purposes of this section, sexual connection means-
   “(a)Connection occasioned by the penetration of the genitalia or the anus of any person by-
   “(i)Any part of the body of any other person;”
   [171] The alleged sexual assaults by M S and Mrs S come within this section. The section does not require the sexual connection to be between the finger of the perpetrator and the genitalia of the victim. It can be as it was in this case around the other way with respect to Mrs S’s actions.
   [172] The plaintiff says the evidence does not establish that the acts committed between Mrs S and the plaintiff were sexual violation. I reject that. The plaintiff was, in my view, quite clear that he was required to masturbate Mrs S and that to do so he had to touch her genitalia with his finger. The plaintiff says penetration cannot be shown. I reject that. The action that the plaintiff described would have involved penetration of the genitalia in any commonsense view of his description of what happened. There is no doubt that the plaintiff’s description of M S’s actions was covered under s 128.
   [173] While s 128 was not in existence when these events occurred, for the statutory purpose that is irrelevant. For this purpose it is simply a definition of activities which are a prerequisite for a valid claim under the ARCI Act. Thus the plaintiff had cover under the Act for the mental or nervous shock suffered as a result of his sexual abuse by M S and Mrs S. This mental or nervous shock manifests itself in the plaintiff’s PTSD condition and in his periodic mild to serious depression. The corporation therefore accepted that it should provide cover for the plaintiff.
   [174] Clearly part of the PTSD and depression suffered by the plaintiff will be due to the physical assaults by Mrs S and M S and also potentially to the psychological abuse he says he suffered at the hands especially of Mrs S. However, the corporation has not nor could it sensibly only pay a percentage of counselling fees or a percentage of weekly cover because not all of the PTSD or depression was due to the sexual abuse. Once cover was established the Corporation has paid for all counselling and all work absences due to PTSD or [ (2002) 22 FRNZ 39, 76]depression whether the PTSD or depression had in part a cause not covered by the Accident Compensation legislation.

   [175] The plaintiff has now established an entitlement to a permanent disability payment. This is said to compensate him for further expenses or costs he may incur arising from his PTSD or depression. This percentage disability at 69 percent has not been reduced because part of the PTSD or depression arose from causes outside those covered by the Act.
   [176] These factors convince me that it would therefore be wrong to allow compensatory damages to be claimed by the plaintiff. The plaintiff has been in effect fully covered under the Accident Compensation scheme for all his disability arising from PTSD and depression however caused. To now let his claim for compensatory damages proceed would allow him to effectively double-dip. The plaintiff’s claims for compensatory damages must therefore fail.
   Negligence
   [177] The plaintiff’s cause of action in negligence is based on the Superintendent’s assumption of the plaintiff’s care and control, and the duty of care said to arise from that assumption of care and control.
   [178] The duty of care is expressed both generally and specifically. The general is expressed by the plaintiff in his statement of claim as:
   “53.By virtue of the Superintendent’s assumptions of the plaintiff’s care and control, he and those acting with his authority, owed the plaintiff a duty of care to:
   “(a)Act with due expertise, skill and care in making any decisions which affected the plaintiff’s wellbeing, care and development” .
   Paragraph 53 as pleaded obliges the defendant to “ensure” the plaintiff was placed in a stable, secure and safe living environment. Of course no one can ensure such a thing. The duty pleaded in para 53 is so wide as in the context of this case to be almost meaningless.
   The general dates pleaded effectively revolve around the supervision of the Ss’ care of the plaintiff from 1959 until 1974.
   And the particular involves Child Welfare acting with skill and care when:
   (1)Placing the plaintiff with the Ss (I assume both initially and after the Ss’ separation);
   (2)Investigating allegations of concern about the plaintiff’s care given by others.
   [179] The defendant says in reply:
   (1)The superintendent/Director-General did not assume legal responsibility for the plaintiff’s care and control;
   (2)The decisions being challenged here were all decisions involving social worker discretion and unless it can be shown they were so unreasonable as to be outside the scope of the discretion no duty exists;
   (3)There is a lack of sufficient proximity;
   (4)Policy factors are against the imposition of a duty.
   [180] In A-G v Prince and Gardiner [1998] 1 NZLR 262, also reported as A-G v Prince (1997) 16 FRNZ 258; [1998] NZFLR 145 (CA) at p 268; p 265; p 151 the Court observed:[ (2002) 22 FRNZ 39, 77]
   “The issue is whether a claim in negligence may lie. The ultimate question is whether in the light of all the circumstances of the case it is just and reasonable to recognise a duty of care by the defendant to the plaintiff. That depends on consideration of all the material facts in combination. It is an intensely practical question. For almost 20 years, and drawing on Anns v Merton London Borough Council [1978] AC 728, we have found it helpful to focus on two broad fields of inquiry. The first is the degree of proximity or relationship between the alleged wrongdoer and the person who has suffered damage. That is not a simple question of foreseeability as between parties. It involves consideration of the degree of analogy with cases in which duties are already established and reflects an assessment of the competing moral claims. The second is whether there are other policy considerations which tend to negative or restrict – or strengthen the existence of – a duty in that class of case. . .” .
   [181] A repeat of some of the essential facts is necessary. In mid-1959 the plaintiff and his seven siblings were unable to be cared for by their parents. The State was self-evidently going to have to accept responsibility for these children. Indeed, the Infants Act 1908 required that any children under six who were being looked after other than by their parents had to be in a house and with a person licensed under the Act. Thus the State mandated that the plaintiff either had to be cared for in a licensed home (which the State licensed) or the State would take responsibility for the child under the Child Welfare Act (s 12, s 13).
   [182] The Infants Act required that a child under the control of the superintendent could be placed either in: a State institution, a private institution (typically religious) or in a “suitable home”. The initial placement of the plaintiff with Mrs J was unobjectionable both legally and factually. I have already reached conclusions about Infants Act licensing.
   [183] By 1960 it was clear the plaintiff’s natural parents had effectively abandoned him in the sense they could not care for him and agreed that he be adopted. The plaintiff’s placement with the Ss in 1960 was for the purpose of adoption and it was authorised only because of the Infants Act licensing.
   [184] The Infants Act required licensing of homes and people caring for infants. The Superintendent was expected to be satisfied about the character and fitness of the applicant foster parent and the suitability of the home (s 43). The foster parent was required to keep a record of the placement. The licence could be revoked at any time. The foster parents could only receive payment from the parent as approved by the superintendent or as paid directly by the superintendent if the parents defaulted.
   [185] The Adoption Act sets out a process, controlled by the State, for the adoption of children. The Act prohibited children being placed in homes for the purpose of adoption unless Child Welfare had approved a placement and for no longer than one month (s 6(1) and (2)). Such restrictions did not apply where the child was already in the home for care under s 41 of the Infants Act (by way of a licence). Clearly the Adoption Act was concerned to ensure that children were not kept in homes without the adoption as anticipated proceeding unless they were in a home and with people who had been checked and approved (infant licensing).
   [186] From mid-1960 I am satisfied the State assumed responsibility for the care of the plaintiff (in fact if not always in law) because:[ (2002) 22 FRNZ 39, 78]
   (1)The placement of the plaintiff up until the end of 1964 had to be with a person and in a house that was State sanctioned unless adoption occurred earlier. (Infant Act licensing.)
   (2)When the plaintiff turned 6 years coincidentally the Ss separated. At this stage Child Welfare supervision under the Infants Act ended as did the prospect of adoption by the Ss.
   (3)Again the Child Welfare exercised “control” over the plaintiff’s situation. It obtained the consent of the Gs to the continuation of the Ss looking after the plaintiff. However, the State still had effective control of the children.
   (4)Child Welfare knew that the Gs knew nothing of the Ss’ circumstances and thus were reliant on the State for its assessment of the S’s as suitable parents/caregivers.
   (5)Child Welfare knew that the Gs had effectively abandoned the plaintiff and expected Child Welfare to do its best to find the plaintiff suitable living conditions.
   (6)Child Welfare considered and rejected applying for a committal order for the plaintiff. There were grounds to apply for such an order. Child Welfare exercised its control by deciding the advantages of State wardship did not outweigh the disadvantages here.
   (7)Child Welfare knew it could remove the plaintiff from Mrs S’s custody at any time.
   [187] Throughout the defendant’s case it was suggested that Child Welfare had no responsibility for these children. Their case was in part that the children were placed with the Ss by the Gs and Child Welfare were really observers keeping an eye on what went on at the Ss. I reject that. These children were effectively abandoned by their parents. They became a State responsibility although that did not alleviate the Gs’ responsibility (at least, economic) for them. However, the State clearly had the responsibility to ensure these children were properly looked after. The fact it chose not to seek a committal order cannot and does not mean the State had no responsibility. Mrs S was nominated by the State to look after the children. She accepted the nomination. The State identified her as a suitable person and the State placed the children with her to look after. The State undertook supervision of her care of the children. Mrs S was at the State’s request, undertaking the State’s responsibility of care for these “abandoned” children.
   [188] The decision not to apply to make the plaintiff a State ward in 1964 was unwise. In saying this I acknowledge the making of an order by a Court was far from certain. However, it would be inappropriate if the Crown could benefit (by resisting a duty) because of an unwise decision not to apply to have the plaintiff declared a State ward. I stress that a powerful argument for the existence of a duty arises here because the State elected to look after the plaintiff in an unorthodox way. As a result many of the statutory or practical protections were not necessarily present, eg state wardship, adoption.
   [189] The defendant’s position seems to have been primarily based on the proposition that when the Gs were seen in 1964 they said they were happy for the Ss to continue to look after the children. The Gs did not know the Ss. They were dependent for information from the State about the Ss. The Gs’ primary concern was the fact that they could not look after these children and that someone suitable needed to. Their assessment of the Ss as suitable was entirely dependent upon the [ (2002) 22 FRNZ 39, 79]information provided by Child Welfare and no more than acceptance of the State’s assessment.
   [190] To return to the test in Prince and Gardiner (supra). In this case the relationship between the plaintiff and Child Welfare is close. This was a child who was abandoned by its parents at less than one year of age. It was Child Welfare that decided where and with whom the plaintiff could live and it was the Child Welfare in the particular circumstances which undertook the responsibility of oversight of where the plaintiff lived. Child Welfare had been unable to find the plaintiff a family which would in law accept responsibility for him (adoption) and thus it fell to Child Welfare to accept this responsibility. Their agent in these circumstances was Mrs S. It was Child Welfare that decided (at least after 1964) that guardianship issues and Mrs S’s status would remain ambiguous through the use of preventive supervision. Child Welfare recognised that there could be damage to the plaintiff by his caregivers. The fact that they monitored the home, considered State Wardship, reported on the health and welfare of the plaintiff, discussed the plaintiff’s conduct with their school and reacted to expressions of concern about the plaintiff’s conduct all illustrate the social worker’s acceptance of risk of harm. I am satisfied therefore on the facts of this case there is sufficient proximity to justify finding that a duty of care existed.
   Negligence/policy factors
   [191] In considering policy factors it is proper in this case to keep in mind the unusual set of circumstances. While the combination, of an abandoned child, a failed placement for adoption, one prospective adoptive parent continuing care, and the special family characteristics (the number of children and the intellectual impairment) and the abuse, may not be unique it is likely to be highly unusual.
   [192] The defendant’s contention that all of the defendant’s decisions involved social worker discretion is clearly correct. However, while that is relevant to whether there is a breach of a duty of care it is difficult to see its relevance as to whether a duty of care exists or not. Clearly social workers in any given situation will have a range of options. They like other professionals will need to analyse the facts, consider the legal alternatives and make a judgment about what is best. The fact that at the end of the process a judgment is to be made does not mean there can be no duty of care. The law reports are full of duties of care being found in exactly such circumstances. The Court’s function will not be to second-guess the decision but to ensure proper care is taken in finding the facts, understanding the alternatives and reaching decisions. I can see nothing in this submission of the defendant which counts against a duty of care. Indeed while recognising the complexity and importance of decisions regarding Child Welfare there are no obvious reasons for distinguishing between social workers and other professionals.
   [193] Finding a duty of care in this case will enhance rather than undermine any statutory obligations on the State. It will properly emphasise that there was a real choice to be made by the State between doing nothing and doing something for the plaintiff. In this case Child Welfare decided against State intervention in the legal status of the children (eg State wardship) and opted for an informal regime (preventive supervision). It effectively took the risk on the plaintiff’s behalf.
   [194] As to the floodgates argument it is of course impossible to know how many children were placed with families and suffered sexual and physical abuse. And it is difficult to know how many were in a similar or analogous situation to [ (2002) 22 FRNZ 39, 80]the plaintiff. Part of the floodgates argument is that if significant numbers of claims are made this may change social work practise in unattractive ways. This case is concerned with a statutory regime and social work “norms” of 30-40 years ago of little relevance to today. And if social work practice did allow large numbers of children to be sexually and/or physically abused by State-approved caregivers then (subject to an historical perspective) some remedy seems appropriate. The proposition that because there may have been many (I stress “may”) poor decisions resulting in much harm to children as a reason to avoid responsibility is not convincing.
   [195] In cases such as this occurring decades ago, the defendant’s floodgates argument cannot stand scrutiny. Finding a duty of care exists in this case will have little or no precedential value beyond its unusual facts. Most of the defendant’s other concerns under this heading are effectively another side of the floodgates argument. In cases such as this occurring decades ago there are problems of evidence and proof. Records may be poor, memories dim. However, there is no reason why these issues as in this case cannot be dealt with on a case by case basis. Nor does a conclusion that a duty of care exists here have any relevance to contemporary social work practice. This will be governed typically by the statutory regime that applies at the time the actions under scrutiny occurred.
   [196] In my view there are no compelling policy reasons which argue against a duty of care here. There are clear reasons to impose a duty of care.
   [197] I am therefore satisfied that there was a duty of care owed by the defendant to the plaintiff as set out in paras 178 and 179 of this judgment.
   Breach of fiduciary duty
   [198] The plaintiff pleads that because the superintendent and then Director-General of Social Welfare assumed power over the plaintiff they were in a fiduciary relationship with the plaintiff. This duty the plaintiff says was broadly to look after the plaintiff in a responsible way by ensuring he had a “stable secure and safe living environment”. These “duties” while not identical to those pleaded in the negligence cause of action are effectively the same. The plaintiff submits that the question of whether a fiduciary exists is effectively the same question as arising from the policy considerations which support or detract from a duty of care to be imposed on Child Welfare in this case. Because of the view I have expressed in this judgment on the policy questions and because of my findings of fact in relation to a breach of the duty of care I do not consider a detailed judgment on whether there is a fiduciary duty here is helpful. My factual findings make it clear that even if such duty existed there would not have been a breach.
   Breach of statutory duty
   [199] I take a similar view of breach of statutory duty although there are some different aspects. Of the breaches alleged, I have reached factual conclusions which can be summarised as either a finding of no breach or a minor breach of no significance with respect to s 13 Child Welfare Act; ss 121-122 Education Act; and s 6 of the Adoption Act. I deal with ss 46 and 47 Infants Act argument in full. The mere fact that the defendant may have breached a statutory obligation does not mean a private law cause of action arises. However, because of my view of the [ (2002) 22 FRNZ 39, 81]facts I need not consider this aspect in detail. Because of the statutory regimes I would not have found a private law duty in any of the statutes in any event.
   Section 46/47 Infants Act
   [200] During the plaintiff’s time with Mrs J and with the S’s, the plaintiff claims Mr G had an agreement with Child Welfare to pay 5 shillings per week maintenance for the plaintiff in terms of s 46 of the Infants Act 1908. The plaintiff says Mr G failed to make these payments or at least by the time the plaintiff was placed with Mr and Mrs S these maintenance payments were in arrears.
   [201] Thus the plaintiff says pursuant to s 47 of the Infants Act 1908 the superintendent was deemed to be the plaintiff’s guardian until such time as all arrears of maintenance were paid. The plaintiff alleges the arrears were never paid but the superintendent failed to exercise any guardianship obligations.
   [202] Section 46 and s 47 state:
   “46. Provisions as to maintenance moneys-
   (1) No payment or reward shall be made or given to or received by a foster parent in respect of any infant except in pursuance of an agreement approved by the Superintendent or other person authorised by the Minister.
   “(2) If default is made in payment of any sum payable under any such agreement, the amount thereof, or such part of that amount as the Superintendent thinks fit, may be paid to the foster parent by the Superintendent, and shall be recoverable by the Superintendent in the manner provided by section fifty-one hereof;
   “Provided that no such payment shall be made by the Superintendent after the child attains the age of fifteen years, or is removed from the foster home, or dies.
   “(3) Where any such agreement is for payment of a lump sum, such lump sum shall be deposited with the Superintendent or other officer as aforesaid and not paid to the foster parent, and in such case the foster parent shall be entitled to receive from the Superintendent out of the sum so deposited a weekly payment of such amount as may be agreed between the Superintendent and the foster parent:
   “Provided that, save as aforesaid, no payment out of the sum so deposited shall be receivable by the foster parent after the infant dies or is removed from the foster home; and the residue then remaining in the hands of the Superintendent shall be applied from time to time, as the Superintendent thinks fit, in the maintenance of the infant or in the payment of any medical or funeral expenses incurred in respect thereof; and any moneys not required for any of those purposes shall be repaid to the person by whom the said sum was so deposited.”
   “47. Superintendent to have powers of guardian-
   “When and so long as any sum of money recoverable by the Superintendent by virtue of the last preceding section remains unpaid, he shall have and may exercise, to the exclusion of any other person, the same powers and rights in respect of the child on whose behalf the said sum was paid as if he were the guardian of such child appointed by the Supreme Court under Part I of this Act, but the powers and rights so conferred upon him shall cease when the child attains the age of fifteen years.”
   [203] For three reasons I am not convinced ss 46/47 applies to the facts of this case:
   (1)I do not consider on the balance of probabilities the plaintiff has established that there was a s 46 agreement.[ (2002) 22 FRNZ 39, 82]
   (2)If there was such an agreement I am not satisfied on the balance of probabilities there were arrears of maintenance beyond the time the plaintiff was placed with the Ss.
   (3)I am not satisfied that s 47 in any event is intended to bestow general guardianship rights on the superintendent in such circumstances.
   [204] As to (1) s 46 requires that no foster parent received payment in respect of an infant except pursuant to an agreement approved by the superintendent. There is evidence that Mr G agreed with Child Welfare to pay 5 shillings per child per week. There is no evidence whether it was approved by the superintendent or indeed anyone else so authorised. And given the proposed adoption, from April/May 1960 Child Welfare does not seem to have sought any maintenance payments from that date on. Thus the only period during which there could have been a s 46 agreement is from 1959 when the plaintiff was based with Mrs J through to April 1960 when he went to the Ss. In October 1959 Mrs Meggett, Child Welfare’s officer, recorded that Mr G had agreed to pay 5 shillings per week per child and supply clothing for the children. She recorded by that date that Mr G was £22 in arrears.
   [205] Mrs Chisholm, a psychiatric social worker, intervened to help Mr G to sort out his finances which by October 1959 were in a poor state with £120 of debt. She wrote to Child Welfare and asked for a “moratorium on his debt to your Department”.
   [206] The department responded recording the 5 shillings per week payment agreement, and that the arrears were not due to the department but to the foster parents. By December that year Mr G owed £32 for the boys in maintenance arrears although with Mrs Chisholm’s help he was making regular payments. The arrears relating to the plaintiff were £4. A memorandum of 18 December 1959 from a Mr Donaldson, District Child Welfare Officer, records:
   “Mr G’s affairs have been discussed with him and with Mrs Chisholm and it was decided that an additional 10/- a week should be directed toward board payments for C and M. This may enable you to place these two children in the same foster home as discussed. A Needy Family report will be forwarded to the Superintendent with a request for clothing for the children.
   “There has been a further blow to the already desperate financial position in the form of an accident which Mr G had with the railway jigger he drives. Last week he collided head on with a train, jumped clear to avoid serious injury, but hurt his back. He was to see his doctor the day after Miss Nimmo’s visit and his position was uncertain. He did not appear to be suffering much ill effect and it is to be hoped that he will avoid a period of sick leave. As he will probably be held responsible for the accident he feels it likely that he may be asked to pay damages.
   “Efforts have been made to assist Mr G to reduce his living expenses, which are high considering that he is living alone. He is however unlikely to manage many changes here. He has been consistent in his payments to Mrs Chisholm and last week contributed another £10.”
   [207] By December 1959 Child Welfare had identified Mr G’s total debts (including a reducing debt to Child Welfare) as approximately £90. An application was made on the G’s behalf to the PC to pay off the family’s outstanding debts. In February 1960 a cheque for £80 and one shilling was sent to Mrs Chisholm so she could pay off all the Gs’ outstanding account.[ (2002) 22 FRNZ 39, 83]
   [208] While an agreement to pay 5 shillings per week and later 10 shillings per week for the plaintiff is mentioned there is nothing in the correspondence which suggests this was intended to be a s 46 agreement approved by the superintendent. I conclude that there is no substantial evidence that there was a s 46 agreement.
   [209] Secondly, the fact that the PC fund paid off Mr G’s debts as at February 1960 seems to suggest that there were no arrears by the time of the plaintiff’s placement with the Ss.
   [210] Because of my factual findings it is unnecessary to decide this point. However, I doubt whether s 47 is intended to give the superintendent full guardianship rights (and obligation) with respect to children whose maintenance is in arrears.
   [211] Section 47 seems to subrogate rights of collection of maintenance to the superintendent on behalf of the child. I doubt that it intends to take the extraordinary step to vest full guardianship rights in the superintendent simply because of maintenance arrears.
   [212] In any event in this case the facts do not establish either the existence of a s 46 agreement or the existence of maintenance arrears to trigger s 47 powers.
   Infants Act
   [213] I do not consider there was any breach of the Infants Act with regard to licensing as I have previously observed.
   Child Welfare Act
   [214] I have previously concluded the defendant did give proper consideration to s 13 of the Child Welfare Act. I have previously concluded the plaintiff did provide proper financial support to the S family.
   Education Act
   [215] Nor was there any breach of s 121/s 122 of the Education Act. (see paras 259-263.)
   Adoption Act
   [216] There was no substantial breach of s 6 of the Adoption Act. The Child Welfare did not fail to make proper inquiries of the character and fitness of the Ss or the housing they lived in (s 43 Child Welfare Act) as I have previously found.
   [217] In any event there was nothing in any of these statutes which would have convinced me that they were intended or did give private rights of action.
   Vicarious liability
   [218] Three questions will need to be answered in this case before the question of whether the defendant is vicariously liable for the acts of the Ss is answered.
   (1)Have the Ss committed a tort with respect to the plaintiff?
   @Clearly the answer is yes.
   (2)Did the acts committed by the Ss arise from or out of their foster parent function?
   (3)Is the nature of the relationship between the Ss and Child Welfare such that the State should be vicariously liable?

   [ (2002) 22 FRNZ 39, 84]Relationship
   [219] The following characterises the relationship between Child Welfare and the Ss:
   (i)The Ss were the agents of Child Welfare in the sense that they undertook Child Welfare’s responsibility to look after these children when their parents had abandoned them.
   (ii)Child Welfare put the Ss in this position by placing the plaintiff with the Ss and leaving him with Mrs S.
   (iii)Given the informal (legal) nature of the placement Child Welfare retained complete control of the children (if they wished to exercise it).
   (iv)The Ss undertook on behalf of the State “normal” parental duty.
   (v)The Ss received no remuneration for these tasks.
   (vi)The Ss received payment (if not always complete) for the plaintiff’s food and clothing.
   (vii)Child Welfare undertook supervision of the “parenting” of the Ss.
   [220] Typically vicarious liability has been held to exist in employment situations. Employers are seen as liable for the acts of employees in the course of their employment. Difficulties have arisen as the relationship of employer/employee has become less well defined. Defining what is “in the course of employment” depends upon questions of perspective and analysis (see Lister v Hesley Hall Ltd [2002] 1 AC 215; [2001] UKHL 22; [2001] 2 All ER 769).
   [221] Distinctions between employer-employee relationship and independent contract relationships are also less clear. Principals may also be liable for the acts of agents where it is seen that it is necessary to protect innocent third parties.
   [222] In this case the facts exhibit some aspects of employer-employee, independent contractor and principal-agent relationships.
   [223] The defendant had the right to stop the Ss doing their “job” at any time. This could be seen to be the equivalent of the right of suspension or dismissal. The exercise of some control by Child Welfare over the way in which the Ss performed their function by regular visits could be seen as employer-employee supervision. On the other hand even regular visiting left Mrs S in charge unsupervised virtually all of the time (eg one visit per month of an hour or so was seen as close supervision). The Ss were not paid for the task and indeed may not even have their out-of-pocket expenses met.
   [224] Overall it is difficult to characterise this as any one of these relationships. However, this was a function (looking after the plaintiff) that Child Welfare was obliged to perform given the plaintiff’s abandonment. It had to either do so itself through a State or private institution or through individual families assuming the State’s obligation as foster parents or as adoptive parents. This analysis brings this relationship more closely into one of principal and agent. The defendants argue that there is no principal and agent relationship here because the State did not appoint the Ss to act as their agents. The defendants argue Child Welfare did not assume any legal responsibility thus there could be no delegation of function. This misses the essential point. The plaintiff was effectively abandoned by his parents in a sense that they made it clear they could not longer look after him. The State then, as it had to, assumed control of the plaintiff. It obtained a foster home for him at the Js; it licensed the Js under the Infants Act; it removed him from the Js when they no longer wished to care for him; it looked for and found a potential [ (2002) 22 FRNZ 39, 85]adoptive parent; it placed him with these potential adoptive parents; it made decisions about continued care and committal proceedings.
   [225] Indeed if the submissions of the defendant are correct the defendant would potentially escape responsibility because of its failure to apply for committal and thus have the plaintiff declared a State ward. There seems little doubt that if the plaintiff had been a State ward those looking after him would at least be considered to be in a principal-agent relationship if not employer-employee or independent contractor. Acceptance of this position would potentially create unattractive incentives for social workers applicable today by analogy to care and protection orders.

   [226] The approach by the Canadian Courts has been to analyse the problem not from the perspective of whether the relationship is characterised as employer-employee or principal and agent but on an analysis of the true nature of the relationship. (See The Queen in Right of British Columbia v CA (1966) DLR (4th) 475 at para 107 and Bazley v Currie 174 DLR (4th) 45. This can be compared with the English position as illustrated in S T v North Yorkshire County Council [1999] IRLR 98.)
   [227] The position of the Ss in every sense, except reward, is similar to cases where the debate is only over whether the carer is an employee or an independent contractor. Typically the payment of a wage or a sum for the performance of the contractor entitles the employer/head contractor to direct the work to be done. It seems unattractive indeed here that the decision of the State agencies not to pay the carer were all the other indicia of an employee-employer or independent contractor situation were present could mean the agency escapes liability. That approach, advocated by the defendant ignores the essence of the relationship between the Ss and Child Welfare and focuses on the formal requirements of employers-employees. I reject that approach. In this case the connection between the authority conferred on the Ss by the State and the abuse could hardly be closer given: Child Welfare placed the plaintiff with the Ss for daily care; Child Welfare had the power to and did control through supervision (and if necessary removal) the actual care by the Ss and the abuse occurred by the very people and in the very house authorised by Child Welfare.
   [228] The closeness of this relationship in my view means that although there can in this case be legitimate debate about exactly how in law the relationship between the defendant and the Ss is defined it should be characterised as one where should other factors be supportive this vicarious liability should be imposed.
   [229] Two further relevant factors. Was the sexual abuse in the course of this “close relationship”? The answer is provided by an analysis of Lister v Hesley (supra) (para 218(2)).
   [230] In Lister (supra) the facts were an employee of the defendant who was hired to look after children sexually abused them. The House of Lords considered that the abuse was in the course of the employees’ function. His function was to look after children and the abuse arose directly from this. The analogy with the current case is clear. The function of the Ss was to look after the plaintiff. They were foster parents who carried out their function at the request of and under the direction of Child Welfare. The abuse arose in the course of this relationship.[ (2002) 22 FRNZ 39, 86]
   [231] The second question is one of policy (see Todd, The Law of Torts in New Zealand (3rd ed), para 221.2). Three policy questions are identified as guidance in such cases.
   (i)A person who employs others to advance his own economic interest should be placed under corresponding liability for losses incurred in the same enterprise.
   (ii)The deepest pocket principle. Employers are more likely to be in a position to compensate an injured party.
   (iii)Promoting the widest distribution of tort losses against which the employer can insure and which is distributed through pricing mechanisms. In one sense a variation of (ii).
   [232] The policy arguments raised by the defendant are:
   (1)Floodgates. A large number of claims tying up social work resources.
   (2)Imp

   Comment by MurrayBacon — Mon 26th May 2014 @ 5:51 pm

6. 

   Murray, I think Benjamin Easton is using ur nom de prune.

   Comment by Phil Watts — Tue 27th May 2014 @ 11:53 am

7. 

   These judges may mangle english rather like The Right Honourable Benjamin, but he has human feeling for babies and children. He understands their vulnerability and that if they are to have a chance to develop properly, that they do need to be protected from emotional neglect and abuse. He understands that effective protection cannot come from the babies and toddlers themselves, but must come from adults who are competent as parents. Thus, ’tis not Benjamin.

   Comment by MurrayBacon — Tue 27th May 2014 @ 12:47 pm

8. 

   no offence intended as all NZ owe u guys for all your tireless work for our children. Just trying to inject a little humour into something thats too ceribral for me.

   Comment by Phil Watts — Tue 27th May 2014 @ 5:11 pm

9. 

   That would be cerebral, but we get your drift.

   Comment by Downunder — Tue 27th May 2014 @ 6:53 pm

10. 

    Yes, there was some drift in my concentration too.

    Comment by Man X Norton — Tue 27th May 2014 @ 7:30 pm

11. 

    very interesting.

    Comment by wendy — Tue 27th May 2014 @ 10:57 pm

12. 

    Keep your eye on the ball (only 1 ball).
    Keep your documents simple and clear, so that even a judge can understand in 2 minutes reading.
    ______________________________________________________________________________________________
    What was the paramount interest being protected by the judges?
    1. Government funds (from which their pay coincidentally is drawn).
    2. Protecting children from incompetent parents, incompetent foster parents and incompetent social workers (very lowly paid, less even than incompetent judges).
    It is all a bit of a worry.
    The System doesn’t seem to be addressing, let alone solving these problems, other than just building more jails?
    “Shout”**** at them! if you want to paramountly protect children.
    [The menz.org.nz website was unable to faithfully reproduce the dribble in the originals, no I am not referring to Benjamin.]
    These judgements do show what you are up against, if you wish to sue the Government, for not protecting the quality of children’s upbringing.
    It seems that the babies must take up arms to protect themselves, I am getting confused? Babies Liberation Army – visions of hundreds of babies with AK47s and belts of a hundred bullets, marching down towards the Supreme Caught, just with a few adults with them to read the street signs along the way, make warm bottles of milk and change nappies when required…
    If I recall correctly, I think Benjamin was a trained Early Childhood Educator? That being so, he probably knew all this stuff 20 years before I did. I only ever studied up these issues, after I had lost almost all control over the upbringing of my children. (Yes, I admit it – I only took child development seriously as a subject – as a knee jerk reaction, too late for it to be useful where it mattered the most to me and mine.)

    ****Damn, just can’t find the footnote……

    Comment by MurrayBacon — Wed 28th May 2014 @ 8:19 am

13. 

    Ben is a fine person, I have helped him get case law for his court cases. He has a brain and knows his stuff. People just struggle with they way he communicates it – I guess. It’s the same on going situation, no one knows and no one cares until it happens to them. I can not see it getting any better until it happens to a few more people.

    Comment by wendy — Wed 28th May 2014 @ 3:27 pm

14. 

    It is several years since I have heard of Ben or had the pleasure of his company. Last I heard he was referring me clients from inside. Ben certainly has a brain but most judges he has engaged with felt he did not know his stuff. Ben is a battler and a strategist but that has all been at great cost to himself and his family.

    Comment by Allan Harvey — Wed 28th May 2014 @ 7:00 pm

15. 

    Ben was gaoled for two months in November last year.

    Comment by Downunder — Wed 28th May 2014 @ 7:09 pm

16. 

    But he didn’t miss the opportunity to protest during the recent royal visit.

    Comment by Downunder — Wed 28th May 2014 @ 7:13 pm

17. 

    Continuing Benjamin’s theme:
    Wellingtonian Interview: Benjamin Easton
    Meet the man who’s cost a council $350,000 + GST [in 2009 and 2010 alone]

    I always warn people that most men suffer more damage from their own lawyer, than the other side’s lawyer and judge put together.

    It seems that Wellington City don’t mange their legal costs professionally and just give an open chequebook to their legal workers. (Maybe their legal manager is getting a big cut back out of the legal bills that they pay, so he is happy for the bills to go as high as the Milky Way? Unmanaged conflict of interest)

    If they are that stupid, fancy then publicly blaming Benjamin for their own stupidity in how they manage their lawyer’s bills?

    Moral of the story – manage your lawyer’s work.
    Only use your lawyer, for things you can’t do yourself.
    If Benjamin was as useless as they like to say, then why do they put two lawyers up against Benjamin?
    (Because their brains and training are at best half as good as his, or they are just loading up a bill from a customer who doesn’t check on the quality of “work” they are doing?

    They complain about Ben, but underneath their smiling crocodile complaints, unfortunately Benjamin is just feeding them, at the cost of the Wellington ratepayer.

    One of Ben’s legal actions that was refused by a judge, if successful would have later saved a bus company employee pedestrian his life (if I remember correctly?). So what Ben says, sure isn’t rubbish at all.
    Not many lawyers could claim either of those…..

    Comment by MurrayBacon — Wed 28th May 2014 @ 10:34 pm

18. 

    Sorry but Ben’s company provided little pleasure to some who were supposed to be on his side. He lacked personal morality and cared nothing about exploiting or harming those he interacted with. His communications were often unintelligible and irrational. He damaged any cause he became involved in. Good luck to him.

    Comment by Man X Norton — Thu 29th May 2014 @ 1:03 am

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