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District Court 30 April 2021

Perry v Kinnear & Ors (No. 5)

[2021] NSWDC 145

Sexual offences
TORTS NEGLIGENCE

Citation: Perry v Kinnear & Ors (No. 5) [2021] NSWDC 145
Court: District Court of New South Wales
Date: 30 April 2021
Judge: Montgomery DCJ

Background

The plaintiff was adopted as an infant and, following a breakdown in her relationship with her adoptive parents in 2009, went to live with her maternal aunt and uncle. Those relatives were her aunt (second defendant) and uncle (first defendant), who became her registered foster carers. She remained with the family until January 2012, when she left for university.

The plaintiff brought proceedings for damages arising from alleged sexual assaults perpetrated by the first defendant (her foster uncle) during the period she lived in his household. She also sued the second defendant (her foster aunt) in negligence for failing to take reasonable precautions to protect her from those assaults. A third defendant, the State of New South Wales, settled separately before the hearing.

Despite the court working through an extensive analysis of the applicable duties of care, limitation issues, evidentiary standards, and a detailed damages assessment, the plaintiff ultimately failed to establish her case on the facts. Judgment was entered for both defendants.

  • Whether foster carers owe a duty of care in tort to a child placed in their care, given the "parent-like" nature of the relationship
  • Whether the Civil Liability Act 2002 (NSW) applied to the claim against the second defendant, specifically whether s 3B(1)(a) (which excludes the CLA from liability for intentional acts done with intent to cause injury) applied to a defendant whose alleged liability was for failing to prevent a third party's intentional assault
  • Whether the claims were statute-barred under the Limitation Act 1969 (NSW), and whether the plaintiff was under a "disability" sufficient to suspend the running of time
  • Whether the plaintiff established on the balance of probabilities, applying the Briginshaw standard, that the sexual assaults occurred
  • If liability had been established, what damages would have been appropriate (general, aggravated, exemplary, and out-of-pocket expenses), including the apportionment of pre-existing psychological conditions

Decision

Duty of Care: The court confirmed that a duty of care was owed by each defendant to the plaintiff. Drawing on Hahn v Conley (1971) 126 CLR 276, Montgomery DCJ held that while there is no general duty of care arising simply from a parent-child relationship, a duty does arise from the particular situation, specifically where a child is placed in and accepts the care of another person in a position of vulnerability. As foster carers standing in loco parentis, both defendants were subject to that duty.

Application of the Civil Liability Act: The court held that s 3B(1)(a) of the CLA excluded the CLA from operating in relation to the first defendant's alleged intentional sexual assaults. However, the exclusion did not extend to the claim against the second defendant. Her alleged liability derived from her own negligent failure to protect the plaintiff, not from an intentional act performed with intent to cause injury. Accordingly, the CLA governed the second defendant's liability.

Limitation Period: The court considered the limitation defences raised by the defendants. The relevant provisions of the Limitation Act 1969 (NSW) concerning disability and the suspension of time were examined in the context of the plaintiff's psychological condition.

Liability Finding: Applying the heightened standard of proof required for serious allegations under Briginshaw v Briginshaw (1938) 60 CLR 336, the court was not satisfied that the plaintiff had established the alleged sexual assaults on the balance of probabilities. The plaintiff's claims therefore failed on the facts. Judgment was entered for the defendants.

Damages (Assessed in the Alternative): Although the plaintiff did not succeed, the court undertook a detailed assessment of what damages would have been awarded had liability been established. Against the first defendant, the notional award included $200,000 in general damages (discounted by 10% to reflect the plaintiff's pre-existing psychological condition), $30,000 in aggravated damages, $50,000 in exemplary damages, and amounts for past and future out-of-pocket expenses, totalling $363,000. Against the second defendant, who would have been governed by the CLA, non-economic loss was assessed at 30% of a most extreme case ($158,000), with a 10% causation discount, producing a notional total of $23,800.

Orders Made

  • Judgment for the defendants
  • The plaintiff to pay the defendants' costs

Key Takeaways

  • The District Court confirmed that foster carers can owe a duty of care in tort to a child in their care. The duty arises from the particular circumstances of the caring relationship, not from any general principle of parental responsibility.

  • Under s 3B(1)(a) of the Civil Liability Act 2002 (NSW), the exclusion of the CLA applies to the person who performed the intentional act with intent to cause injury. A co-defendant whose liability rests on negligently failing to prevent that act remains subject to the CLA.

  • Serious allegations of sexual assault require the heightened scrutiny described in Briginshaw v Briginshaw. Even where a duty of care is established and limitation defences are addressed, a claim can still fail if the factual foundation is not made out to that standard.

  • Where a plaintiff has a pre-existing psychological condition, courts will discount damages to reflect only the harm causally attributable to the defendant's conduct. In this case, the notional 10% discount applied across both general damages and out-of-pocket expenses reflected the difficulty of differentiating pre-existing from assault-caused harm.

  • Exemplary damages remain available in intentional tort cases falling outside the CLA. The court's notional award of $50,000 reflected the gravity of the alleged conduct and the absence of any criminal prosecution or sentence against the first defendant.

Legislation and Cases Referenced

Legislation:
- Civil Liability Act 2002 (NSW), ss 3B(1)(a), 5B, 5C, 5D, 5E, 16, 21
- Limitation Act 1969 (NSW), ss 11, 14(b), 50C, 50D, 50F, 52
- Criminal Procedure Act 1986 (NSW), ss 279, 293A
- Evidence Act 1995 (NSW), ss 41, 97, 140(1), 140(2)
- Motor Accidents Compensation Act 1999 (NSW), s 109

Cases:
- Hahn v Conley (1971) 126 CLR 276
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Croucher v Cachia (2016) 95 NSWLR 117
- State of NSW v Bujdoso (2007) 69 NSWLR 302
- Cowell v Corrective Services Commission of NSW (1988) 13 NSWLR 743
- McCallion v Dodd (1966) NZLR 710
- Lamb v Cotogno (1987) 164 CLR 1
- MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657
- Kuhl v Zurich Financial Services Australia Ltd & Anor (2011) 243 CLR 361
- Musa v Alzeaiawi [2021] NSWCA 12
- Nguyen v Tran [2018] NSWCA 215
- Adams v Bracknell Forest Borough Council [2004] UKHL 29
- Longman v The Queen (1989) 168 CLR 79
- M v M (1988) 166 CLR 69