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Accusations of Abuse in Institutions

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Otago Daily Times
February 6, 2002

Damages claim arising from foster family's abuse disallowed
NZPA

Wellington: A man who, in a landmark case, sued the Government for a total of $700,000 after he was sexually, physically and emotionally abused in foster care, has lost his fight in the High Court at Wellington.

In an 84-page written decision yesterday, Justice Young said the child welfare officers of the time had acted in what they believed to be the best interests of the man, known only as Mr S.

In the 1950s Mr S and his three brothers were abandoned by their natural parents. Their mother was psychiatrically ill and she and their father were not able to look after their eight children.

The boys were eventually placed with a local family, who agreed to adopt them when their finances improved. However, within a few years that couple split, leaving the woman to care for the boys. Mr S claimed that, as he and his brothers continued to be foster children, and were not made wards of the state, they did not receive a high level of protection.

Mr S gave evidence that he was sexually, physically and psychologically abused by the couple and the man's adult son from an earlier marriage.

He claimed he was forced to masturbate the woman, with whom he had to share a bed, was force to have anal sex with the man's son and was physically beaten by the man.

In later years he was also beaten by the woman, who imposed a "weekly" punishment of lashings with a studded dog collar, and made him empty the household sewage tank as a punishment.

The woman died in 1993 and the man in 1996.

In 1996, Mr S filed the lawsuit against the Attorney-general, as the representative of the Social Welfare Department. His claims included breaches of fiduciary and statutory duty, negligence, assault and battery. He sought $700,000.

Justice Young ruled Mr S's claim for damages for assault and battery and sexual abuse were barred by statute as they were filed too late. He said for them to have been considered they should have been filed by 1987-88.

Mr S was assessed by ACC in 1996 and found to be suffering from a 69% disability resulting from the effects of childhood sexual abuse. Between 1997 and 1999 he was off work and received weekly compensation payments.

A psychiatrist called to give evidence at the hearing told the court that Mr S had suffered from post traumatic stress disorder for most of his adult life. This had been as a result of the sexual, physical and psychological abuse he suffered as a child.

Justice Young said it was clear Mr S had been compensated by ACC for the sexual abuse and to award any extra compensatory damages would allow him to effectively "double-dip". He did not believe Child Welfare had done anything which allowed, or failed to prevent harm to Mr S.

"I have concluded that child welfare officers were faced with a series of choices affecting [Mr S's] life. They made those decisions in what they believed to be the best interests of [Mr S].

"Overall, Child Welfare provided reasonable supervision and care. These are not the actions which exemplary damages are designed to punish," Justice Young said. -