Case Note: Analysis of Negligence in Trevorrow v. South Australia

This case note analyzes the negligence aspects of the Trevorrow v. State of South Australia case, focusing on the forced removal of Bruce Trevorrow from his parents by the Aborigines Protection Board (APB). The case examines the APB's duty of care, breach of that duty, and the resulting harm, including psychological damage, depression, and alcohol abuse. The South Australian Supreme Court found the State liable for negligence, misfeasance in public office, and false imprisonment, awarding damages to the plaintiff. The analysis covers the procedural history, arguments from both sides, the court's decision, the ratio decidendi (the legal principle), and obiter dicta (other legal points). The case highlights the breach of statutory duties, the breach of general duty of care at common law, and the implications of false imprisonment and misfeasance in a public office, particularly in the context of the Stolen Generations. The note also references the appeal case, State of South Australia v Lampard-Trevorrow, which further extended the scope of tortious liability, emphasizing the importance of parental consent and the deprivation of liberty.

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Case Analysis
TORT LAW
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Case citation
Trevorrow v State of South Australia1
Facts of the case
In the year 1957, a 13 years old aboriginal boy named Bruce Allan Trevorrow (plaintiff) was
taken to the hospitals as he was facing stomach problems and then after two weeks he was
removed from the hospital and was sent to a foster family. This was an authorised procedure
and was settled on behalf of the Aborigines Protection Board of South Australia (APB) by an
official of the Aborigines Department.
The complainant sustained in that foster family till he was ten years old, despite his natural
mother's frequent requests to APB that her son is returned. The complainant then came back
to love with his original family. The complainant, however, had a variety of mental as well as
physical issues so could stay with his family only for14 months. The rest of his childhood
was spent roaming in and out of organizations of the State. The shifting of the child to the
foster house was done without informing the parents or misleading would be the correct word
here. No shreds of evidence were presented before the judges regarding any medical advice
or shifting of the child to the foster house. The APB had prevented the parents for 8
consecutive years from locating the parents and during that period, the father of the plaintiff
had died. It was decided by the judges that exclusion of the complainant from its natural
guardians had triggered into him a foreseeable harm and then after 8 years when he was sent
back to his natural family he was not even given a chance to say goodbye to his foster family.
This way of returning had caused him psychological damages, which further lead to
depression and alcohol abuse. All these damages had exempted him for the rest of his life and
made him helpless for the rest of his life. The decision was taken in favour of the plaintiff and
was also further appealed2.
Procedural History
Judgment in the case of Trevorrow v State of South Australia was passed by the South
Australian Supreme Court on 1st August 2007. Where it was seen that the plaintiff was an
aboriginal, who was separated from its parents and was shifted to foster house for better care
1 (No 5) 98 SASR
2 Mark Lunney, A History of Australian Tort Law 1901-1945 (Cambridge University Press, 2017) 308.

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and protection but the shifting Board did not take any initiative to check whether the foster
family was appropriate or not3.
Issue
The major issue in the above mentioned scenario was that, whether state was liable under tort
due to removal of the plaintiff from his parents as well as whether defendant be liable under
negligence from breach of duty of care which he owned to the plaintiff.
Arguments
The plaintiff and the defendants made various contentions.
Arguments made by the Plaintiff
 Firstly, both of the duties i.e. ordinary and the judiciary duty of the complainant was
infringed by the Aboriginal Protection Board present in the States of South Australia
which was clearly been argued here in the case scenario.
 Secondly, plaintiff contented, these infringements which were undertaken along with
the actual knowledge, considering that the State received legal advice in both 1949
and 1954 that it had no power to remove aboriginal kids unless certain processes were
followed.
Arguments made by the Defendants
 It was argued by the offender that the accused was not separated illegally form its
legal guardians, here Aboriginal Protection Board was considered as its lawful parents
and thus no liability could arise out of any complaint made under this head.
 It was further also argued by the defendant that according to section 35 of the
Limitation Action Act of year 1936 prohibited the plaintiff for, filing a suit under the
law of tort for more than six years after the occurrence of the subject matter.
 Complainant’s claim was dismissed by the State and further stated that all the
statutory expansion of the movements must be allowed under 48th chapter of the
Limitation Act With regard to the complainant's non-statutory allegations, the
defendant asserted to be defending laches.
Decision
3 Pamela Stewart and Anita Stuhmcke, Australian Principles of Tort Law (Federation Press, 4thed, 2017) 722.

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It was declared by the Supreme Court of South Australia, that the Aboriginal Protection
Board APB was a production of the State and the exclusion of the complainant from his
guardian was considered as ultra-virus. The existence of statutory and equitable limitation of
the acts was rejected, whereas the conduct of the defendant was considered as misfeasance in
the public office and the plaintiff was wrongfully imprisoned. Further, it was seen that the
fiduciary duty of the plaintiff was breached by the State so he was held liable to the
negligence to him, thus he must be awarded some damages. A sum of $450,000 along with
the exemplary damages of $75,000. The plaintiff was provided by a measure of remedy and
relief4.
Ratio
The judges took this decision because the plaintiff had lost his capacity of earning and the
exclusion was illegal and the State removed the child even after knowing all the exact or the
real consequences of it. The state was also seem guilty of false imprisonment which was done
by keeping Bruce into a foster family and this was done without informing any to him or his
natural parents. Duty of care was also broken by the State and was also found guilty of
misfeasance in the public office. Though the cabinet and the ministers were fully aware of the
Aboriginal Act 1934-39 and all the other legal advice given to them by the solicitor of the
crown i.e. a particular procedure must be followed while removing the aboriginal child and
shifting it to another place, but they too breached their duty5.
Obiter
In this case, it was clarified that the knowledge of confinement is not at all required for
making out the tortious liability. There could be no defense for arguing. Basically in this case
where none of the State officials had acted in the prescribed statutory duty to them
Dissent and Evaluation
Breach of statutory duties-under section 3 of the Aboriginal Protection Act of NSW it was
settled that the government has complete jurisdiction only over full-blooded or half-blooded
aboriginals and not over those children who don't come under this category6. The board of
this authority is considered as that relevant State authority which ensures and takes the
responsibility of protecting the people of aboriginality. So if they place an aboriginal child in
4 Francis A. Trindade and Peter Cane, The Law of Torts in Australia (Oxford University Press, 2nd ed.1993) 764.
5 Amanda Stickley, Australian Torts Law (LexisNexis Butterworths, 4th ed. 2016) 749.
6 Carol Harlow, Understanding Tort Law (Sweet & Maxwell, 2005) 194.

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some foster care or other then firstly the permission of the parents is very essential and next
they must properly inquire and satisfy itself that the removal of the child is done for the moral
and physical benefit of the child or the better interest of the child7. But in this case, it was
seen that the parents of the child removed had no information about its removal. So the
placement will be considered as unlawful and while removing the child no adequate inquiry
was conducted to see the suitability of the child or the home's environment, no consent of the
parents, etc.8
Breach of the general caring duty at common law- as mentioned in the case scenario of
Trevorrow it was found that the negligent duty of care was only inferred by the court and
before that, no denial of express or implied duty was found to be existing. So it must be noted
down that the recovery of duty of care while exercising the statutory power is not newly
inbuilt in common law as it is present for centuries9.
False imprisonment- it is that situation where the person's liberty is restrained unlawfully. In
Aboriginal, it was very common as its children were been placed into homes without
checking proper compliances i.e. deprivation of liberty and falsely imprisoned. In the above
case of Trevorrow, it was seen that the State failed to prove that the removal was unlawful.
Thus, in this case, the court had rejected the wrongful detention's findings by stating that the
State had committed a breach of duty. Here the court had assumed that mother had an idea or
information of the document’s affirmation as the child was incapable of taking its own
decisions10.
Misfeasance in public office-Many times the Board of the Aboriginal Protection fails to meet
up with the basic requirements of complying its duties with due care and this was recognized
under the Empowering Act. This is done in the situation when the State officials fail to
comply with the required inquiries for satisfying itself the done removal was for the better
interest of the child and its welfare benefits. The case of Trevorrow was considered to be the
first one in which the litigations were raised by the stolen generations in the public office as
the cause of action11.
7 Corrie Goodhand and Peter O'Brien, International Tort Litigation in Australia: Assault, False imprisonment,
Malicious Prosecution and Related Claims (Federation Press, 2015) 201.
8 James Goudkamp, Tort Law Defences (A&C Black, 2014) 270.
9 Peter Cane, Key Ideas in Tort Law (Bloomsbury Publishing, 2017) 128.
10 Kit Barker and Peter Cane, The Law of Torts in Australia (Oxford University Press, 5th ed. 2010) 855.
11 Francis A. Trindade, Peter Cane and Mark Lunney, The Law of Torts in Australia (Oxford University Press,
4th ed. 2007) 858.

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Appealing case
Background
In the State of South Australia v Lampard-Trevorrow12, case which was the appealing case of
the above-mentioned case so the facts are no different from the earlier one. This case came up
in the year 2010 and extended the tortious liability of false imprisonment even more as
compared from before. It directly links to the dark history of Australia. The undergone
situation of the plaintiff i.e. M. Trevorrow during its childhood is to be considered as the
most essential and unforgettable part of national tragedy i.e. the Stolen Generation.this case
talks about those aboriginal children who face problems due to their caste and suffered due to
racial inequalities.
Issue
The major issue, in this case, was the question that whether M. Trevorrow was falsely
imprisoned by its legal white tutors or not?
Evaluation of the issue
There are three elements of the false imprisonment and those are the claimant was completely
restricted even was not given any freedom of movements, the defendant had an ill intention
behind doing so and lastly, the authority took an unlawful action13. Where in this case the
complete restriction does not mean that the person has to be behind the bars, it could also be
thought of as the confinement which is done in the limited areas. This could also be defined
as that situation from which there could be no way out for the claimant to escape.in this case
it was seen that the child was forced to stay with the white family and was also allowed to go
to the school but was not able to run back to the original parents even if he wanted to14.
Ratio
The raised question was positively responded to by the Supreme Court of Australia. In the
first question, it was seen that "The plaintiff's awareness of the deprivation of the liberty was
not considered as the false imprisonment i.e. one of the essential elements of trot." Though all
the facts of these cases were seen to be very fair for calling for the justice nut the legal
12 (2010) 106 SASR331.
13 Ruth Amir, Twentieth Century Forcible Child Transfers: Probing the Boundaries of the Genocide Convention
(Rowman & Littlefield, 2018) 328.
14 Duncan Fairgrieve, Sarah Green, Child Abuse Tort Claims Against Public Bodies: A Comparative Law View
(Routledge, 2017) 236.

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argument seemed to be a slight difference. Secondly, it was also mentioned that though the
child was getting care and protection that could be the only reason behind saying that the
State was dealing with the child as the child only. Therefore it would not be relevant to say
that the Claimant was not restricted to freedom of movements. The final element of
untruthful custody that the consent of parents was required to remove the child and this point
was mentioned in the amendment of the Aboriginal Protection Act. For above all the reasons
it was made clear that in this case false imprisonment cannot be held relevant.
Decision
But in this case, it was held that a child has complete freedom of movement in the foster care
in which it is placed and also liable to complete care and nutrition just like being the own kid
of that family and this in no sense means any type of confinements.
These cases were considered as the once which directly or indirectly throw light on the dark
history of the Australian civilization and hence enhance or prevent those ill practices to get
repeated back in the present.

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Bibliography
Books
Amir, Ruth, Twentieth Century Forcible Child Transfers: Probing the Boundaries of the
Genocide Convention (Rowman & Littlefield, 2018) 328.
Barker, Kit and Peter Cane, The Law of Torts in Australia (Oxford University Press, 5th ed.
2010) 855.
Cane, Peter, Key Ideas in Tort Law (Bloomsbury Publishing, 2017) 128.
Carol, Harlow, Understanding Tort Law (Sweet & Maxwell, 2005) 194.
Fairgrieve, Duncan, Sarah Green, Child Abuse Tort Claims Against Public Bodies: A
Comparative Law View (Routledge, 2017) 236.
Goodhand, Corrie and Peter O'Brien, International Tort Litigation in Australia: Assault,
False imprisonment, Malicious Prosecution and Related Claims (Federation Press, 2015)
201.
Goudkamp, James, Tort Law Defences (A&C Black, 2014) 270.
Lunney, Mark, A History of Australian Tort Law 1901-1945 (Cambridge University Press,
2017) 308.
Stewart, Pamela and Anita Stuhmcke, Australian Principles of Tort Law (Federation Press,
4thed, 2017) 722.
Stickley, Amanda, Australian Torts Law (LexisNexis Butterworths, 4th ed. 2016) 749.
Trindade, Francis A and Peter Cane, The Law of Torts in Australia (Oxford University Press,
2nd ed.1993) 764.
Trindade, Francis A. Peter Cane and Mark Lunney, The Law of Torts in Australia (Oxford
University Press, 4th ed. 2007) 858.
Cases
State of South Australia v Lampard-Trevorrow (2010) 106 SASR331.

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Trevorrow v State of South Australia (No 5) 98 SASR