Abuse claim – motion to amend pleadings to include additional defendant…

…novel duty of care

The plaintiff was a ward of the State of New South Wales who was placed into a foster home relationship with a husband and wife, in 1979.

Prior to the plaintiff’s placement in this home, there had been two previous young foster children who had allegedly been abused by the husband at this home, within the knowledge of the wife.

The plaintiff, after being placed under the husband and wife’s care, was then allegedly abused by the husband. The husband was found guilty at trial of this abuse, but subsequently died.

The plaintiff instituted civil proceedings against the State of New South Wales – claiming they had negligently placed her into the foster care situation – and personally, against the husband, for the intentional conduct.

After the husband died, the plaintiff brought a motion to amend her statement of claim to include a claim in negligence against the wife, on the basis that:

1. the wife, with knowledge of the initial abuse of the two boys, owed a duty of care to prevent risks of injury towards subsequent foster children
2. this duty had been breached by the wife in that she:
   
   (a) failed to report the husband’s alleged initial abuse of the two boys to the authorities
   (b) failed to decline the offer of the plaintiff’s foster placement, and/or
   (c) failed to prevent the husband from assaulting the plaintiff.

The wife defended the motion on the basis that the claim was statute barred, and that the claim was not properly pleaded.

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Decision

• plaintiff’s motion dismissed
• however, plaintiff be given opportunity to rectify pleadings and argue limitation issue at any subsequent motion.

Ratio

It was held that the plaintiff’s case against the wife was a novel claim in negligence which may be an incremental development of the common law, which should be permitted to proceed.

However, the plaintiff’s claim in its current form had not been properly formulated or pleaded, and therefore it was only appropriate to decide the argument – about whether the plaintiff’s application should be permanently stayed – after the pleadings had been rectified.

This compensation law casenote appears courtesy of Travis Schultz & Partners (TSP), where the author, James Leggo, is an Associate. As part of the firm’s commitment to providing ongoing legal education, TSP practitioners review relevant judgments and prepare case summaries for the legal profession. A free searchable catalogue of compensation law casenotes is available at schultzlaw.com.au/case-summaries (registration required). The full version of the judgments can be found at austlii.edu.au.