A V ROMAN CATHOLIC ARCHDIOCESE OF WELLINGTON AND OTHERS [2009] 1 LRC 211
Child abuse compensation – Vicarious liability and duty of care
FACTS:-
The Claimant was born in 1959. Due to an unstable family background, she was placed at the age of seven in 1968 at an orphanage run by the Sisters of Mercy and educated at a primary school. She alleged physical and emotional abuse whilst she was there.
By the end of 1972 attempts were being made to arrange foster care for her. She left the orphanage in May 1973 and she attended a secondary school until 1977 as a boarder. She also lived during that time at a foster home in the school holidays. She was sexually abused during a placement with a foster carer in 1968 to 1970, by a Mr S during a summer placement in 1972 to 1973, by a Mr N and by her maternal grandfather between 1974 and 1977.
The director of the Catholic Social Services and social workers employed by that agency were involved in the Claimant’s care. The manager of the orphanage was also the director of Catholic Social Services.
The Claimant commenced proceedings in 2001 against the Sisters of Mercy and Catholic Social Services for negligence claiming that they owed her duties of care encompassing protection of her physical safety.
The case came before the New Zealand Court of Appeal.
HELD:-
Justice William Young P considered the Child Welfare Act 1925, which provided for the committal of children who were in need of care and attention by the state. Under that Act, the state could delegate its functions to private organisations such as the Defendant. Young J also considered the Child Welfare Amendment Act 1927, which provided directly for children’s homes operated as private institutions. Section 2 defined a “controlling authority” as any person or persons, society or body corporate having control of the administration of the home. Reference was also made to the Child Welfare (Forms and Procedure) Regulations 1926.
The orphanage was set up in 1952 and was run by the Sisters of Mercy as the controlling authority. One Father McCormack was the manager of the orphanage, acting in his capacity as director of Catholic Social Services in the Wellington Archdiocese.
Under section 12 of the 1927 Act the State could assume control of that child for such period and on such terms as might be agreed. The relevant section in this case was Section 13, under which certain legal responsibilities were placed on the person assuming control of a child by agreement. The Claimant’s mother had placed her with the Sisters of Mercy, whereas the only direct dealings between the mother and Father McCormack related to the receipt of family benefit and Father McCormack’s attempts to persuade the Claimant’s mother to take her back into her care. The Court of Appeal was not persuaded that any such Section 13 agreement was entered into in this case by any of the parties. Both the Claimant’s mother and the Sisters of Mercy (and Father McCormack) would have been surprised in 1968 if it had been suggested that the informal arrangement involving the Claimant’s placement with the orphanage carried the consequences identified in Section 13 of the 1927 Act. This was a temporary arrangement that carried on for over five years.
Young J also had reservations as to whether vicarious responsibility for Father McCormack’s actions as the manager of the orphanage should lie with Catholic Social Services. The Sisters of Mercy ran the home and Father McCormack’s “appointment” as managed by the Archbishop (as part and parcel of his appointment as director of Catholic Social Services) would not have been of legal effect under the 1927 Act unless it was in substance adopted or acquiesced in by the Sisters of Mercy. It was clear on the evidence that his appointment was so adopted or acquiesced in with the result that he was properly regarded as having been the manager. However the scheme of the 1927 Act associated the manager with the controlling authority (the Sisters of Mercy) which suggested that if Father McCormack had incurred a tortious liability, that liability would have fallen on the Sisters of Mercy rather than Catholic Social Services.
In relation to the sexual abuse, the trial judge had found that the Claimant had been sexually abused by two care providers organised by either Catholic Social Services or the Sisters of Mercy. There were also further incidents of sexual abuse which might well have occurred after the 1st April 1974 involving a Mr N and the Claimant’s maternal grandfather.
The Claimant relied on a Court of Appeal authority, S v AG [2003] NZCA 149 to the effect that the state was liable vicariously for sexual abuse of children by foster carers under the 1925 Act.
However Young J said that the Claimant was precluded from claiming compensatory damages under the Injury Prevention, Rehabilitation and Compensation Act 2001, although she was covered by the accident compensation scheme.
Young J now considered the case of S v AG. In that case, a child had been placed by agreement in the care of the State. The State had in turn placed the child in the hands of foster carers who sexually abused him. Blanchard, McGrath, Anderson and Glazebrook JJ in the Court of Appeal had said that foster parents should be regarded as agents of the State and that by employing the doctrine in Lister v Hesley Hall Ltd [2001] UKHL such abuse was sufficiently connected with the purpose of parenting for which the placements were made. Tipping J in the same court agreed but preferred to avoid the language of principal and agent, but rather he proceeded on the basis that the relevant duties of the State were non-delegable.
Young J said that the Court of Appeal had already concluded that there was no section 13 agreement and consequently Father McCormack did not have any legal status in relation to the Claimant, which was equivalent to her status between the Claimant and the State. In S v AG the majority of the court held that there was a Section 12 agreement despite some informality in the underlying arrangements. Therefore S v AG was distinguishable.
However the de facto position of the Sisters of Mercy and Father McCormack appeared to be similar to that of the State in S v AG. Nonetheless the approach in S v AG would not be applied. In the absence of a section 13 agreement, the Sisters of Mercy and Catholic Social Services had no statutory control over the Claimant. Rather, they were fulfilling the obligations of the Claimant’s parents to maintain her. Their duties of care were conceptually different from those in S v AG. The orphanage was not set up to provide care for children in the school holidays, and the Sisters of Mercy did not supervise any such placements. The same considerations applied to Father McCormack. The caregivers were not his agents or performing a duty which by statute was vested in him. Therefore there was no principled basis on which to impose vicarious liability.
In relation to physical abuse meted out by nuns, Young J agreed with the findings of the judge. The level of corporal punishment at the primary school was at the high end of what was acceptable at the time, but the nuns who taught there were professions who acted accordingly. The orphanage was well run and on the whole, was a reasonably happy place. Whilst there was some inappropriate corporal punishment, the overall pattern of the judge’s findings suggested that such incidents must have been the exception and not the rule.
In relation to emotional harm, it was necessary to look at the scope of the duty on the Sisters of Mercy and Catholic Social Services, who had acted in loco parentis towards the Claimant. Young J considered various authorities on the issue. The fundamental position was that parents did not owe a duty to use reasonable care in the way in which they bring up children. So claims for damages for bad parenting would not entertained.
However in the case of Barrett v Enfield LBC [1999] 4 LRC 473 Lord Hutton had said that a local authority was in a different position to a child from its natural parents, insofar as it had trained social workers at its disposal and moreover it had to make decisions about fostering and adoption, which a parent might never need to take. Also in the case of Phelps v Hillingdon LBC [2000] 4 All ER 504, Lord Nicholls had addressed the issue of whether teachers owed a duty of care to pupils. He concluded that such a duty would exist, but the existence of such a duty should not be regarded as furnishing a basis on which generalised “educational malpractice” claims could be mounted.
In this case, there were policy reasons that pointed away from the imposition on the Sisters of Mercy and Catholic Social Services, a duty of care that extended beyond that of a parent.
On the other hand, it was not difficult to envisage situation which might be thought to call out for legal intervention. The proposition that those running a children’s home were entitled to use mental cruelty, was unattractive. Similarly there might be liability if the child was subject to emotional bullying or had associated with a gang of criminals.
Young J said that there were three controlling considerations:-
In this context it would be possible to impose on those providing or supervising the institutional care of children a duty to take reasonable steps to avoid the emotional harm associated with either their own behaviour or problems of which they were aware or ought to have been aware. Against that background, the Claimant’s concerns about the way in which she was treated fell under four general areas of complaint:-
In relation to a) the Court of Appeal agreed with the judge’s general finding that the standard of care provided by the nuns was excellent by the standards of the day and was not abusive. This aspect of the case did not succeed.
In relation to b) there was limited documentation, which was consistent with an absence of substantial oversight in relation to the Claimant by Father McCormack and Catholic Social Services. The Court of Appeal had already concluded that there was no section 13 Agreement, and therefore it followed that the Sisters of Mercy and Catholic Social Services were the agents of the Claimant’s mother. The Claimant could not sue her mother for deciding that she should live in the orphanage and that at least raised the question of whether the Sisters of Mercy and Catholic Social Services could be sued for implementing that decision. It was difficult to see how the Sisters of Mercy or Catholic Social Services could be regarded as negligent in relation to the period prior to the end of 1971, by which time it was becoming increasingly unlikely that the Claimant’s mother would resume day to day control of her children.
Slightly different considerations applied for the period from the beginning of 1972 to May 1973. By that time, there had been family proceedings between the Claimant’s parents, and the assumption was that their children would remain in institutions. By this time, the Sisters of Mercy and Catholic Social Services had a large measure of de facto control over the Claimant. With that in mind, the question arose as to whether there was negligence on the part of the Sisters of Mercy and Catholic Social Services from 1972 associated with delays in arranging foster care.
At the beginning of 1972, the Sisters of Mercy would rightly have seen strategic decisions about the Claimant’s future as being the responsibility of the Claimant’s mother and Catholic Social Services. Therefore there was no negligence on their part. As for Catholic Social Services, Young J said that the Court of Appeal could see no discernible negligence. There was no expert evidence to suggest that the delays between the beginning of 1972 and December 1972 and between January 1973 and May 1973 involved negligence.
In relation to c) it was clear from the evidence that Catholic Social Services were taking a reasonably active interest in the Claimant’s family in 1971, and in relation to one of the Claimant’s sisters. The Court of Appeal could see no basis for concluding that the Sisters of Mercy could fairly be regarded as negligent in failing to respond adequately to manifest problems associated with the Claimant’s life in the orphanage.
In relation to d) it appeared that the social work role of Catholic Social Services did not commence until late 1972. The Court of Appeal could see no basis for criticism of the steps that they had taken until the foster care arrangement which commenced in May 1973. If the social work role of Catholic Social Services did begin earlier, then the Claimant’s case faced the now familiar problems associated with the limited options which were available.
The appeal would be dismissed.
Child abuse compensation – Vicarious liability and duty of care
FACTS:-
The Claimant was born in 1959. Due to an unstable family background, she was placed at the age of seven in 1968 at an orphanage run by the Sisters of Mercy and educated at a primary school. She alleged physical and emotional abuse whilst she was there.
By the end of 1972 attempts were being made to arrange foster care for her. She left the orphanage in May 1973 and she attended a secondary school until 1977 as a boarder. She also lived during that time at a foster home in the school holidays. She was sexually abused during a placement with a foster carer in 1968 to 1970, by a Mr S during a summer placement in 1972 to 1973, by a Mr N and by her maternal grandfather between 1974 and 1977.
The director of the Catholic Social Services and social workers employed by that agency were involved in the Claimant’s care. The manager of the orphanage was also the director of Catholic Social Services.
The Claimant commenced proceedings in 2001 against the Sisters of Mercy and Catholic Social Services for negligence claiming that they owed her duties of care encompassing protection of her physical safety.
The case came before the New Zealand Court of Appeal.
HELD:-
Justice William Young P considered the Child Welfare Act 1925, which provided for the committal of children who were in need of care and attention by the state. Under that Act, the state could delegate its functions to private organisations such as the Defendant. Young J also considered the Child Welfare Amendment Act 1927, which provided directly for children’s homes operated as private institutions. Section 2 defined a “controlling authority” as any person or persons, society or body corporate having control of the administration of the home. Reference was also made to the Child Welfare (Forms and Procedure) Regulations 1926.
The orphanage was set up in 1952 and was run by the Sisters of Mercy as the controlling authority. One Father McCormack was the manager of the orphanage, acting in his capacity as director of Catholic Social Services in the Wellington Archdiocese.
Under section 12 of the 1927 Act the State could assume control of that child for such period and on such terms as might be agreed. The relevant section in this case was Section 13, under which certain legal responsibilities were placed on the person assuming control of a child by agreement. The Claimant’s mother had placed her with the Sisters of Mercy, whereas the only direct dealings between the mother and Father McCormack related to the receipt of family benefit and Father McCormack’s attempts to persuade the Claimant’s mother to take her back into her care. The Court of Appeal was not persuaded that any such Section 13 agreement was entered into in this case by any of the parties. Both the Claimant’s mother and the Sisters of Mercy (and Father McCormack) would have been surprised in 1968 if it had been suggested that the informal arrangement involving the Claimant’s placement with the orphanage carried the consequences identified in Section 13 of the 1927 Act. This was a temporary arrangement that carried on for over five years.
Young J also had reservations as to whether vicarious responsibility for Father McCormack’s actions as the manager of the orphanage should lie with Catholic Social Services. The Sisters of Mercy ran the home and Father McCormack’s “appointment” as managed by the Archbishop (as part and parcel of his appointment as director of Catholic Social Services) would not have been of legal effect under the 1927 Act unless it was in substance adopted or acquiesced in by the Sisters of Mercy. It was clear on the evidence that his appointment was so adopted or acquiesced in with the result that he was properly regarded as having been the manager. However the scheme of the 1927 Act associated the manager with the controlling authority (the Sisters of Mercy) which suggested that if Father McCormack had incurred a tortious liability, that liability would have fallen on the Sisters of Mercy rather than Catholic Social Services.
In relation to the sexual abuse, the trial judge had found that the Claimant had been sexually abused by two care providers organised by either Catholic Social Services or the Sisters of Mercy. There were also further incidents of sexual abuse which might well have occurred after the 1st April 1974 involving a Mr N and the Claimant’s maternal grandfather.
The Claimant relied on a Court of Appeal authority, S v AG [2003] NZCA 149 to the effect that the state was liable vicariously for sexual abuse of children by foster carers under the 1925 Act.
However Young J said that the Claimant was precluded from claiming compensatory damages under the Injury Prevention, Rehabilitation and Compensation Act 2001, although she was covered by the accident compensation scheme.
Young J now considered the case of S v AG. In that case, a child had been placed by agreement in the care of the State. The State had in turn placed the child in the hands of foster carers who sexually abused him. Blanchard, McGrath, Anderson and Glazebrook JJ in the Court of Appeal had said that foster parents should be regarded as agents of the State and that by employing the doctrine in Lister v Hesley Hall Ltd [2001] UKHL such abuse was sufficiently connected with the purpose of parenting for which the placements were made. Tipping J in the same court agreed but preferred to avoid the language of principal and agent, but rather he proceeded on the basis that the relevant duties of the State were non-delegable.
Young J said that the Court of Appeal had already concluded that there was no section 13 agreement and consequently Father McCormack did not have any legal status in relation to the Claimant, which was equivalent to her status between the Claimant and the State. In S v AG the majority of the court held that there was a Section 12 agreement despite some informality in the underlying arrangements. Therefore S v AG was distinguishable.
However the de facto position of the Sisters of Mercy and Father McCormack appeared to be similar to that of the State in S v AG. Nonetheless the approach in S v AG would not be applied. In the absence of a section 13 agreement, the Sisters of Mercy and Catholic Social Services had no statutory control over the Claimant. Rather, they were fulfilling the obligations of the Claimant’s parents to maintain her. Their duties of care were conceptually different from those in S v AG. The orphanage was not set up to provide care for children in the school holidays, and the Sisters of Mercy did not supervise any such placements. The same considerations applied to Father McCormack. The caregivers were not his agents or performing a duty which by statute was vested in him. Therefore there was no principled basis on which to impose vicarious liability.
In relation to physical abuse meted out by nuns, Young J agreed with the findings of the judge. The level of corporal punishment at the primary school was at the high end of what was acceptable at the time, but the nuns who taught there were professions who acted accordingly. The orphanage was well run and on the whole, was a reasonably happy place. Whilst there was some inappropriate corporal punishment, the overall pattern of the judge’s findings suggested that such incidents must have been the exception and not the rule.
In relation to emotional harm, it was necessary to look at the scope of the duty on the Sisters of Mercy and Catholic Social Services, who had acted in loco parentis towards the Claimant. Young J considered various authorities on the issue. The fundamental position was that parents did not owe a duty to use reasonable care in the way in which they bring up children. So claims for damages for bad parenting would not entertained.
However in the case of Barrett v Enfield LBC [1999] 4 LRC 473 Lord Hutton had said that a local authority was in a different position to a child from its natural parents, insofar as it had trained social workers at its disposal and moreover it had to make decisions about fostering and adoption, which a parent might never need to take. Also in the case of Phelps v Hillingdon LBC [2000] 4 All ER 504, Lord Nicholls had addressed the issue of whether teachers owed a duty of care to pupils. He concluded that such a duty would exist, but the existence of such a duty should not be regarded as furnishing a basis on which generalised “educational malpractice” claims could be mounted.
In this case, there were policy reasons that pointed away from the imposition on the Sisters of Mercy and Catholic Social Services, a duty of care that extended beyond that of a parent.
- There were limited financial resources
- There would often be no settled consensus about what constituted best practice in relation to children, in this case the Sisters of Mercy administered a regime of austerity to which (with hindsight) the Claimant was not best suited but that was not a ground for imposing legal liability
- The decision to place the child with the Sisters of Mercy was taken by her mother, and her parents remained her legal guardians.
- The Claimant had come into care in inauspicious circumstances and that was bound to have an effect on her future life.
- There was also the spectre of meritless but hard to defend claims. The Limitation Act was at best a frail shield for Defendants
On the other hand, it was not difficult to envisage situation which might be thought to call out for legal intervention. The proposition that those running a children’s home were entitled to use mental cruelty, was unattractive. Similarly there might be liability if the child was subject to emotional bullying or had associated with a gang of criminals.
Young J said that there were three controlling considerations:-
- In the first place, the children in the orphanage were particularly vulnerable
- There were assumptions of responsibility by both the Sisters of Mercy and the Catholic Social Services, insofar as they had a public face.
- The position of child welfare at the time
In this context it would be possible to impose on those providing or supervising the institutional care of children a duty to take reasonable steps to avoid the emotional harm associated with either their own behaviour or problems of which they were aware or ought to have been aware. Against that background, the Claimant’s concerns about the way in which she was treated fell under four general areas of complaint:-
- Against the Sisters of Mercy, emotionally abusing the Claimant
- Against both the Sisters of Mercy and Catholic Social Services, allowing her to stay at the orphanage so long that she became institutionalised
- Against both above, failing to respond to problems as they became manifest
- Against Catholic Social Services, failing to monitor the Claimant more actively.
In relation to a) the Court of Appeal agreed with the judge’s general finding that the standard of care provided by the nuns was excellent by the standards of the day and was not abusive. This aspect of the case did not succeed.
In relation to b) there was limited documentation, which was consistent with an absence of substantial oversight in relation to the Claimant by Father McCormack and Catholic Social Services. The Court of Appeal had already concluded that there was no section 13 Agreement, and therefore it followed that the Sisters of Mercy and Catholic Social Services were the agents of the Claimant’s mother. The Claimant could not sue her mother for deciding that she should live in the orphanage and that at least raised the question of whether the Sisters of Mercy and Catholic Social Services could be sued for implementing that decision. It was difficult to see how the Sisters of Mercy or Catholic Social Services could be regarded as negligent in relation to the period prior to the end of 1971, by which time it was becoming increasingly unlikely that the Claimant’s mother would resume day to day control of her children.
Slightly different considerations applied for the period from the beginning of 1972 to May 1973. By that time, there had been family proceedings between the Claimant’s parents, and the assumption was that their children would remain in institutions. By this time, the Sisters of Mercy and Catholic Social Services had a large measure of de facto control over the Claimant. With that in mind, the question arose as to whether there was negligence on the part of the Sisters of Mercy and Catholic Social Services from 1972 associated with delays in arranging foster care.
At the beginning of 1972, the Sisters of Mercy would rightly have seen strategic decisions about the Claimant’s future as being the responsibility of the Claimant’s mother and Catholic Social Services. Therefore there was no negligence on their part. As for Catholic Social Services, Young J said that the Court of Appeal could see no discernible negligence. There was no expert evidence to suggest that the delays between the beginning of 1972 and December 1972 and between January 1973 and May 1973 involved negligence.
In relation to c) it was clear from the evidence that Catholic Social Services were taking a reasonably active interest in the Claimant’s family in 1971, and in relation to one of the Claimant’s sisters. The Court of Appeal could see no basis for concluding that the Sisters of Mercy could fairly be regarded as negligent in failing to respond adequately to manifest problems associated with the Claimant’s life in the orphanage.
In relation to d) it appeared that the social work role of Catholic Social Services did not commence until late 1972. The Court of Appeal could see no basis for criticism of the steps that they had taken until the foster care arrangement which commenced in May 1973. If the social work role of Catholic Social Services did begin earlier, then the Claimant’s case faced the now familiar problems associated with the limited options which were available.
The appeal would be dismissed.