Background
Facts of the case
Bruce Allan Trevorrow was sent to hospital with stomach problems in 1957, at the age of 13 months. Two weeks later, he was removed from hospital and placed in the care of a foster family — an act authorised and arranged by an officer of the APB. He was kept in the care of the foster family until the age of 10 years, despite frequent requests by his mother that he be returned, which caused him a range of ongoing emotional and physical problems.
Arguments from the plaintiff
Mr Trevorrow contended that the State had, at various times, been his legal guardian and therefore owed him a duty of care, which it had breached by removing him from his parents. He also argued that the breaches were committed when the State had already received legal advice that it did not have the authority to remove Aboriginal children unless certain procedures were complied with.
The duty of care
In tort, a duty of care is a legal obligation to ensure the safety or well-being of another. As the governing body in charge of Mr Trevorrow's wellbeing, the State had owed him a duty of care under tort.
Details of the judgment
Gray J made various findings in Trevorrow that led him to the conclusion that, not only had Mr Trevorrow established that the State owed him a duty of care, but that it had been breached.
The APB was an emanation of the State
Gray J found that the APB's function, management, objectives and affairs were always tied to and controlled by the State. As a result, the APB was an extension of the State, meaning that the State was liable for any liabilities of the APB [525].
The State did not have the power to remove Mr Trevorrow from his parents
The finding that the State did not have the power under the legislative framework to remove Mr Trevorrow from his parents was established by balancing the rights of parents at common law with the intention of Parliament [454]. This legislative framework consisted of the State Children Act 1895 (SA), the Aborigines Act 1911 (SA), the Aborigines (Half-Caste Children) Bill 1921 (SA), the Aborigines (Training of Children) Act 1923 (SA), the Maintenance Act 1926-1937 (SA), the Children's Protection Act 1936 (SA) and the Aborigines Act 1934-1939 (SA).
At common law, parents have the right to exercise care and control over their children. Gray J noted that if this fundamental right is to be displaced the legislation must show that this is the Parliament's intention [445]-[454].
Crucially, no intention to grant powers of separation to the State were evident. In fact, Gray J found that acting as the guardian over children was only relevant for the protection of Indigenous children, not their removal [458]-[462].
Findings of wrongdoing
Gray J held that the foster care that Mr Trevorrow had been placed in was better classed as imprisonment that had resulted from his removal from his parents. As this was done without consent, the imprisonment was unlawful [991]-[992].
As Mr Trevorrow's legal guardian, the State had owed him a duty to look after his best interests, which included giving him full information about his removal from his parents and legal advice he could seek. The State's failure to do this meant that it had breached its duty to Mr Trevorrow [1001]-[1006].
The State was also held liable in negligence, Gray J holding that it had been reasonably foreseeable that some form of harm would arise from the removal. Important factors of the case were Mr Trevorrow's vulnerability and the State's control over his situation. These factors led to a finding that the State had owed and subsequently breached its duty of care to Mr Trevorrow. Damages were awarded for all wrongdoing [1046]-[1062]. Mr Trevorrow was awarded $525,000 in damages [1239].
Significance
Some academic commentary suggests that Trevorrow has limited precedential value. More specifically, there are concerns that Bruce Trevorrow was an 'ideal plaintiff', which could make it difficult to use the case as legal authority for Stolen Generations litigation more broadly (Buti, 2008). The nature of Mr Trevorrow as an 'ideal plaintiff' is largely due to the fact that he was taken from his family without their consent and placed with a foster mother, while his siblings remained with their parents. This meant that the upbringing he'd had could be directly contrasted with the upbringing of his siblings, who did not develop problems of the same nature that he did, which meant that the Court was more readily able to notice the harm and attribute the source of the harm to the removal.
Pre-Trevorrow
Courts have long resisted imposing common law duties which may lead to 'floods' of claims. These concerns are often accompanied by an unwillingness to find against statutory authorities, due to concerns that they'll adopt defensive practices and not take positive actions to 'help' others out of a fear of being sued. Since many of the harms complained of in Stolen Generations negligence actions were suffered by almost all Stolen Generations victims, claims of a common law duty owed by authorities to children in these cases have been particularly vulnerable to both 'floodgates' and 'defensive practices' analysis (Buti, 2008).
The Court in Trevorrow did not focus on considerations such as the likelihood that floodgates would open, or that defensive practices would arise [1027]. Instead, the case was an indication that the stolen generations regime had caused pain and loss and that this pain and loss deserved compensation.
Post-Trevorrow
The fact that Mr Trevorrow may have simply been the 'ideal plaintiff' means that it may be difficult to look to Trevorrow as precedent for future Stolen Generations litigation (Buti). There is also further difficulty in that courts have typically adopted an approach towards liability of statutory authorities to stop them from adopting defensive practices, such as not engaging in positive actions to help individuals (Buti).
Nevertheless, it is an important development, as it highlights that the harm caused by Stolen Generations policies may warrant compensation.
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