Dear Colleagues;
The Full Court of the Supreme Court of South Australia has handed down its decision on the appeal in the "Stolen Generations" case - see State of South Australia v Lampard-Trevorrow [2010] SASC 56 http://www.austlii.edu.au/au/cases/sa/SASC/2010/56.html . The case is the only one so far where civil damages have been awarded to a member of what has come in Australia to be called the "Stolen Generation", Aboriginal children who were forcibly removed from their parents to be placed with white foster-parents or in children's homes.
Bruce Trevorrow was successful at first instance in recovering damages for the psychological impact on him of the removal. The case was a particularly bad one where his parents were not told he had been placed with a foster-family, and to some extent the Aborigines Protection Board went out of their way to not allow his natural parents to see him.
The ruling on appeal was that the APB had acted unlawfully (ie by removing him without the permission of his natural parents they had breached the legislation which gave them their powers.) The findings of the trial judge that they had thereby committed the torts of misfeasance in public office, and negligence, were upheld. However, a finding of false imprisonment was overturned, and the Full Court said that the trial judge had been wrong to also find a breach of fiduciary duty.
Very interesting discussion. On the negligence issue there is a lot of time devoted to the question whether finding a duty in these circumstances would conflict with the statutory responsibilities of the APB, but the court effectively holds that since the alleged duty (to exercise their powers lawfully and in the interests of the children) was exactly what the legislation required, there was no clash. (See eg [367]-[380].) As the court notes, this is not a case of failure to exercise statutory power, but a claim of negligence in doing what the statute required.
The false imprisonment discussion is also interesting. I had found the trial judge's decision interesting but a bit odd, and now I read the Full Court I agree with them that it went a bit far. They affirm that it is not a problem for the claim that young Bruce did not know he was being detained- see [289]ff where they seem to politely doubt that the HL in Bournewood were correct on this point. But his "detention" was not shown because, in effect, it was no more than the control over his movements exercised by any parent over their children. As they say at [307]:
"We do not think it is realistic to describe the care and protection given by the carer of a child as a restraint on the child, in the relevant sense of the term."
There is also an interesting discussion of the type of intention needed to establish the tort of misfeasance in public office, and a suggestion that the Australian standard of "foreseeable" harm may be different to the standard adopted in some UK cases, which may suggest that the harm had to be actually foreseen- see [260]-[264]. But if there is a difference, of course, the SA court adopts the High Court of Australia view in Sanders v Snell.
Regards
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
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