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This judgment concerns the construction of s 27(1)(b) Personal Injuries Proceedings Act 2002 (“PIPA”). The appellant was a former child resident at St George’s Home for Children between 1973 and 1980. He claimed to have been sexually abused by the superintendent, Reverend M, and others while a resident of the Home. The appellant sought an order, pursuant to s 27(1)(b) of the PIPA for the first respondent to disclose all information about complaints relating to M made by other residents of the Home. Overturning the finding of the primary judge, the Court of Appeal (Fraser and Morrison JJA and Lyons SJA) held that s 27(1)(b) was not confined to information that had a causative effect on the alleged incidences of sexual abuse.
Fraser and Morrison JJA and Lyons SJA
20 August 2021
An orphanage, known as the “St George’s Home for Children” (“the Home”) was in the 1970s to 1980s run by the first respondent. , . The appellant (“SDA”) was a resident of the Home from November 1973 to March 1980. Reverend M (“M”) was the superintendent of the Home when the appellant, aged 10, first started living there. M retired 11 months later in December 1974. , .
Almost 45 years after M’s retirement, SDA claimed that he was sexually abused while living at the home, by staff and older residents, including by M. , . SDA sought disclosure under s 27(1)(b)(i) Personal Injuries Proceedings Act 2002 (“PIPA”) in relation to this claim. , . The terms of the application were that the first respondent disclose:
“… all information about a report, complaint, warning, concern or investigation regarding any act of sexual or physical abuse on a child committed or alleged to have been committed by [M] at [the Home] between 18 December 1963 and 10 January 1975.” .
Therefore, the request for disclosure sought information dating back 10 years prior to SDA’s time at the Home.
The first respondent sought to resist the application to provide any information about the complaints made against M on the basis that such information was not “circumstances of, or reasons for, the incident”.
Decision of the learned primary judge
The learned primary judge held, as summarised by Fraser JA at , that:
(a) “the [first] respondent is not obliged to provide information in response to a request under s 27(1)(b)(i) which relate to prior similar incidents, unless it can be demonstrated that the prior incidents have causative effect, in the sense of being a strand in the rope of causation”;
(b) “it cannot be considered that information received 25 years after the fact could have had any bearing on what the first respondent did or did not do at the time of the incident, nor could it be said to have put the first respondent on notice of the risk”; and
(c) there was “a lack of causative effect between the information sought and the incident …”
Section 27(1)(b) relevantly provides that a respondent must, if requested to do so, provide a claimant with “information that is in the respondent’s possession about the circumstances of, or the reasons for, the incident” (underlining added).
Reasons of the Court of Appeal
The issue on appeal was whether disclosure under s 27(1)(b) is confined to information about prior incidents that have a causative effect on the alleged incidences of sexual abuse. The Court of Appeal held that s 27(1)(b) was not confined in this manner. , .
With respect to the meaning of “information”, Fraser JA (with whom Lyons SJA) agreed held that M’s complaints were “information” but as the complaints were made 45 years after the alleged sexual abuse, M’s complaints were not information “about the circumstances of, or reasons for” that alleged sexual abuse. . Therefore, Fraser JA held that “the only potential candidate for information of that description comprises the statements made about M in the complaints”. .
Justice Fraser held that the meaning of “the circumstances of” and “the reasons for” in s 27(1)(b) must be construed by reference to the claimant’s notice of claim. . SDA’s notice of claim provided that the respondent was vicariously liable for the conduct of its employees, including M and that the first respondent breached its duty to take reasonable care by:
(a) “failing to take specific steps alleged to be reasonably necessary to protect the residents” from sexual abuse; and
(b) placing M in a position to be able to take advantage of SDA. –.
Ultimately, Fraser JA held that information about the content of any prior complaints made to the respondent “is capable of being regarded as information about the reasons for” the alleged abuse of SDA. This is because that information could “bear upon” the question whether the first respondent could have taken steps to prevent the alleged sexual abuse of SDA. . Further, information of prior complaints would also tend to show that the first respondent contributed to the “circumstances of” the alleged sexual abuse by putting M in a position of authority. .
Justice Morrison, who agreed with the orders but who wrote separately, held that there were two categories of information for the purposes of s 27(1)(b), namely:
(a) information that relates to “what happened” (i.e. the circumstances of the alleged sexual abuse); and
(b) information that relates to “why it happened” (i.e. the reasons for the alleged sexual abuse). –.
His Honour held that the approach of the learned primary judge was too narrow. . Information about prior complaints may be relevant to explain the first respondent’s failure to act to prevent SDA suffering abuse. . As his Honour explained a prior complaint may have “put the Diocese on notice as to M’s actions”. .
A Hughes of Counsel