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Supreme Court of New South Wales=(1)The limitation period in relation to the plaintiff’s proceedings is suspended by reason of the plaintiff’s disability from the day she turned 18 until the end of 2003. (2)In the alternative, the plaintiff is granted an extension of time within which to commence proceedings against the defendants up to and including 2 May 2008. (3)Costs are reserved. =LIMITATION PERIOD – victim of sexual abuse by step-father – action against State of NSW and Department of Youth & Community Services case worker – failure to report abuse to Police – claim of breach of duty – whether suspension of limitation period due to disability – whether extension of time should be granted – ss 52, 60G and 60I of theLimitation Act 1969

Sexual Abuse: A Journal of Research and Treatment

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DC v State of New South Wales[2012] NSWSC

State Library of New South Wales, Sydney, Aust...

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142 (1 March 2012)

Last Updated: 5 March 2012

 

Supreme Court

New South Wales

 

Case Title:
DC v State of New South Wales
[2012] NSWSC 142
Hearing Date(s):
21, 22 & 23 November 2011
Decision Date:
01 March 2012
Jurisdiction:
Before:
Harrison AsJ
Decision:
(1)The limitation period in relation to the plaintiff‘s proceedings is suspended by reason of the plaintiff’s disability from the day she turned 18 until the end of 2003.
(2)In the alternative, the plaintiff is granted an extension of time within which to commence proceedings against the defendants up to and including 2 May 2008.
(3)Costs are reserved.
Catchwords:
LIMITATION PERIOD – victim of sexual abuse by step-father – action against State of NSW and Department of Youth & Community Services case worker – failure to report abuse to Police – claim of breach of duty – whether suspension of limitation period due to disability – whether extension of time should be granted – ss 5260G and 60I of theLimitation Act 1969
Legislation Cited:
Child Welfare Act 1939
Crimes Act 1900
Crimes (Public Justice) Amendment Act 1990
Criminal Law Act 1967 (UK)
Limitation Act 1969
Limitation of Actions Act 1974 (Queensland)
Cases Cited:
A v Hayden [1984] HCA 67(1984) 156 CLR 532
Brisbane South Regional Health Authority v Taylor[1996] HCA 25(1996) 186 CLR 541
Cain v Doyle [1946] HCA 38(1946) 72 CLR 409
DC v State of New South Wales [2010] NSWCA 15
Drayton Coal Pty Limited v Drain (NSWCA, 22 August 1995, unreported)
Guthrie v Spence [2009] NSWCA 369
Harris v Commercial Minerals Limited [1996] HCA 49(1996) 186 CLR 1
Holt v Wynter [2000] NSWCA 143(2000) 49 NSWLR 128
Kotulski v Attard [1981] 1 NSWLR 115
Locklier v State of New South Wales [2009] NSWSC 746
New South Wales v Harlum [2007] NSWCA 120
Olive v Johnstone [2006] NSWCA 21
Petty & Maiden v R [1991] HCA 34(1991) 173 CLR 95
Saunders v Jackson [2009] NSWCA 192 State of New South Wales v Bennie [2005] NSWCA 172
Sydney City Council v Zegarac (1998) 43 NSWLR 195
Sykes v Director of Public Prosecutions [1961] 3 All ER 33
TB v State of New South Wales [2009] NSWSC 326
Texts Cited:
The Oxford Nurse’s Dictionary
Category:
Procedural and other rulings
Parties:
DC (Plaintiff)
State of New South Wales (First Defendant)
Carolyn Quinn (Second Defendant)
Representation
– Counsel:
AS Morrison SC with K Pryde (Plaintiff)
I Harvey (Defendants)
– Solicitors:
Graham Jones Lawyers (Plaintiff)
Crown Solicitors (Defendants)
File number(s):
2008/289325
Publication Restriction:

JUDGMENT

 

  1. HER HONOUR: TB and DC are sisters. Both TB and DC have filed (on 22 November 2011) an amended notice of motion seeking, firstly, a declaration that the plaintiff/applicant was in time to commence proceedings on 2 May 2008 due to s 52 of the Limitation Act 1969; and secondly, in the alternative, an order that time be extended under ss 60G and 60I of the Limitation Act .

 

  1. The first defendant is the State of New South Wales (“the State of NSW”). The State of NSW is vicariously liable for the acts and conduct of the second defendant. The second defendant was employed by the Department of Youth & Community Services (“YACS”), now the Department of Community Services (“DOCS”), as a district officer at the Blacktown office.

 

  1. TB was born in July 1967 and DC in October 1970. Their parents separated when they were very young. After the separation their mother met and subsequently married their stepfather “J”. Thereafter, J began to sexually abuse both girls. They complained to their mother on numerous occasions, but the abuse continued. As described below, once YACS became involved the second defendant was put in charge of their case.

 

  1. In April 2008 TB and DC commenced proceedings against the defendants, raising causes of action based on the defendants’ allegedly negligent failure to exercise the power to report these matters to the Police.

 

  1. On 28 April 2009, in TB v State of New South Wales [2009] NSWSC 326, Mathews AJ struck out both TB and DC’s statements of claim on the basis that there was no reasonable cause of action. On appeal in DC v State of New South Wales [2010] NSWCA 15, the Court of Appeal allowed the appeal and set aside the orders of Mathews AJ dated 28 April 2009. Both matters were remitted to the Common Law division for determination, including the determination of the motions filed by TB and DC seeking an extension of the limitation period. It is these motions that I will deal with in this judgment. I have taken the approach that, while there are many common facts to both TB and DC, in some respects their matters differ. Hence, I have written two separate judgments.

 

  1. The Court of Appeal granted TB and DC leave to file a further amended statement of claim within 28 days, which they did, on 17 March 2010.

 

  1. I note that the Court of Appeal discharged the non-publication orders made by Mathews AJ on 16 March 2009 to the extent that they referred to the second defendant. However, for convenience, I will adopt the pseudonym “CQ” in this judgment.

 

Factual background

 

  1. I gratefully acknowledge and adopt some of the facts summarised by Mathews AJ in her judgment. For the purposes of this application, I have taken the plaintiffs’ cases at their highest and have referred to evidence that, if these matters go to trial, will be subject to challenge.

 

  1. TB is the oldest of three siblings. Next is DC who is three years younger than TB. They have a younger brother B.

 

  1. TB was first sexually abused by J in 1974-1975 when she was about eight years old. DC’s abuse commenced not long afterwards when she was only five years old. It commenced in each case with vaginal fondling and moved on to full penile oral and vaginal intercourse. It took place on a frequent and regular basis, notwithstanding that the plaintiffs’ mother had been told on several occasions what her husband was doing to her daughters. Sometimes J photographed the girls in sexual positions. He was also prone to visit physical violence on the girls, sometimes inflicting visible injuries.

 

  1. In April 1983, TB telephoned YACS and complained about J’s sexual and physical assaults upon herself and her sister. On 20 April 1983, the second defendant, CQ, interviewed TB at her school. The second defendant was put in charge of the case and a three page typed record of interview was prepared. On 22 April 1983, two days later, the second defendant interviewed DC and a similar typed record of interview was prepared. Both girls complained that their stepfather had been sexually assaulting them.

 

  1. On 28 April 1983 the second defendant spoke to the plaintiffs’ mother, who confirmed that she already knew what was happening in the household. On the same day the plaintiffs’ mother was interviewed by CQ in the presence of Steve Frost, Assistant Senior District Officer. A section of the typed record of interview relating to physical abuse of the plaintiffs was read to the mother who acknowledged an awareness of such conduct.

 

  1. On 2 May 1983 the second defendant, as informant, had the matter put before the Cobham Children’s Court (“the Children’s Court”). Each of the plaintiffs was charged with being a neglected child within the meaning of the Child Welfare Act 1939. On 6 May 1983, four days later, the second defendant had a lengthy conversation with both TB and DC. On 9 May 1983, the matter again came before the Children’s Court when both plaintiffs were released into the care of their mother.

 

  1. On 20 June 1983, a further hearing took place before the Children’s Court. For the purpose of those proceedings CQ prepared a lengthy report in which she described the complex family dynamics and the trauma suffered by the two girls. The report listed nine issues of concern in the family, including “J’s longstanding history of inappropriate sexual behaviour and sexual offences”. The report went on to say that it was considered “vital” that the girls be “protected from the possibility of further abuse and from living in fear of abuse”. The report recommended that the plaintiffs be released into the care of their mother upon the condition that they not reside with J, and that contact between them and J occur only if they requested it, such contact to occur away from the family home and its grounds. The girls were to attend counselling as recommended by CQ. Given the complexities in the family situation, it was suggested that the matter come back before the court after three months, thereby enabling an opportunity for “such assessment and evaluation to be conducted by the professionals already involved with the family before a firm recommendation can be made”.

 

  1. It seems that shortly after this hearing (23 June 1983) J left the family home and went to live in rented premises in Blacktown. Notwithstanding the conditions of the remand, he frequently returned to the family home and resumed his assaults of the plaintiffs. Moreover, the plaintiffs’ mother often took them to visit J at his rented accommodation, where sexual assaults also took place.

 

  1. On 15 September 1983 CQ interviewed J who freely admitted having sexually interfered with both plaintiffs. On 19 September 1983, CQ prepared a lengthy report for presentation before the Children’s Court. She noted in her report that J had been making frequent visits to the home. She expressed great concern about this as the visits had been very distressing, especially for TB. She said that DC’s emotional distress seemed to be expressed in covert ways such as bed wetting and that her behaviour was typical of sexual abuse victims of her age. Nowhere in this extremely detailed report is there any reference to the plaintiffs having been sexually assaulted by J during the remand period. The report concluded by saying that further assessment would be necessary in order to clarify many of the family issues.

 

  1. On 19 September 1983 there was a further hearing before the Children’s Court. On this occasion the plaintiffs and their mother were independently represented by solicitors. It is both plaintiffs’ evidence that they were never in attendance in the courtroom. Mrs J’s solicitor objected to the continuation of the conditions restricting the plaintiffs’ contact with their stepfather. The Magistrate declined to adopt this approach, expressing surprise that Mrs J would prefer the word of “a person with criminal convictions” over that of her own two daughters. The Magistrate emphasised that the interests of the children were the paramount consideration and said that the children would be allowed to remain at home only “on the basis that he does not attend the home at all”. The matter was adjourned until 24 October 1983. A psychiatric report in relation to the children was sought in the meantime.

 

  1. In a relatively brief report prepared for the hearing on 24 October 1983, dated 21 October 1983, CQ said that the family situation remained generally unchanged. There was no reference to any further contact between the plaintiffs and their stepfather, J. Also prepared for the hearing on 24 October 1983 was a report from Ian Skead, a psychologist with the Cobham Clinic, relating to both TB and DC. No transcript is available of the proceedings on 24 October 1983. It would appear that both plaintiffs were released into the care of their mother with the same conditions as before.

 

  1. Earlier in 1983, J had been charged with the rape of his 15 year old son’s girlfriend, for which he was ultimately convicted and sentenced to four years jail in 1985. J also had 2 previous convictions for indecent assault on boys. As CQ noted in a report of 20 June 1983 (ref 238):

 

“[J] has a longstanding history of sexual offences, being sentenced to imprisonment in 1963 and 1968 for several sexual offences. Some of these related to molesting a child (male). In the mid 1970s he began sexually abusing [TB] and then [DC]. [J] has been recently charged with rape with violence of Wayne’s (his son’s) 15 year old girlfriend. He is due to appear in court on 1 August 1983. It appears [J] has had a continuous and longstanding history of dysfunction (sic) sexual behaviour. For this reason there is great concern for the physical and emotional safety of the children …”

 

  1. On 7 November 1983 and 17 July 1984, there were two further hearings before the Children’s Court. However nothing turns on these.

 

  1. DC spent periods of time in foster homes and also in detention centres. She did not return to live with her mother until 1985, by which time her mother’s relationship with J had come to an end.

 

  1. When DC was 14 years old she was placed before the Children’s Court as being uncontrollable. She was remanded to Cobham, followed by a stay at Minda for a few weeks and then Raby Detention Centre for a few months.

 

  1. DC recalls that in 1983 or 1984, while she was staying in foster care, J was arrested by the Police in relation to the sexual assault of a woman at the Blacktown RSL Club where he was working as a security officer. DC remembers him being taken into custody. She also remembers that at this time she asked CQ why J could not be charged in relation to his sexual and physical assault on her and TB. CQ said to DC words to the effect, “it can’t be done because TB was not mentally capable of coping with the stress of it”.

 

  1. In cross examination DC gave evidence that in 1983 or 1984 she wanted to see J in the holding cells at Blacktown Police Station. She says that she asked CQ to take her to see J. She wanted to go there because “I had this sick need to see the man in gaol.” She remembers CQ being with her and she has a clear recollection of what CQ was wearing. DC said that CQ had a shirt on, a jumper and she had a medium brown bag like a briefcase . DC recalls that she and CQ walked from the Blacktown district office down to the Police station (T68). They were accompanied downstairs to the Police cells by a policeman in a suit who was probably a detective. DC says that she saw J sitting on the right hand side of the cell and that she can visualise the cell. DC cannot remember what he was wearing but he was sitting on the right hand side of the cell and there were bars and they were navyish blue colour (T79).

 

  1. DC was aware that J was charged by the Police in 1983 with having sexually assaulted his son’s 15 year old girlfriend. She was very angry and upset that J could keep on sexually assaulting her but he was not being reported to the Police. DC says that she felt so desperate that she was not being looked after and protected. DC says that at no time did CQ or anyone involved with YACS tell her that what J had been doing to her should be reported to the Police. In 1983 and into 1984 DC was not interviewed by any Police officer about J’s conduct. She was not aware of a unit called the Child Mistreatment Unit of the NSW Police (T70.42).

 

Events after 1984

 

  1. In 1992 DC married her first husband with whom she went on to have two children. The first in 1995 and the second in 1997. In 1998 DC and her husband separated and in about 1999 they divorced. In 1999 DC commenced another relationship and the couple had a child in 2001.

 

  1. In 1994, DC went to Blacktown Police Station to lodge a complaint about J having sexually and physically assaulted her. She went to the Police because she was constantly being given a hard time by her mother in relation to J. DC had repeatedly complained to her mother over the years about J’s sexual and physical abuse of her and TB but their mother would always say words to the effect “You are liars”. DC had had enough of her mother’s attitude.

 

  1. DC says that at the Police station she initially spoke to a uniformed officer on the front desk. He arranged for her to speak to a detective. The detective sat her down and asked a few questions and for J’s full name. She told the detective what she knew about J’s criminal record. The detective went away and when he came back said, “He is not on the system”. DC persisted, without success, in telling the detective that J was in fact on the system. She became very upset and felt that she was getting nowhere so left the Police station. She was upset and felt that she was not able to take the matter further at that time. She was also pregnant with her first child.

 

  1. In 2000, DC’s mother reported to DOCS that DC’s partner was sexually abusing her daughter. This resulted in an investigation of DC’s partner at a time when DC was pregnant with her third child. The allegation was later dismissed. This conduct of DC and TB’s mother drew DC and TB closer together. It proved to be the catalyst for DC and TB to pursue J for what he had done to them.

 

  1. DC, like TB, requested copies of her files from the Children’s Court. On 17 May 2001, DC was provided with copies of her files.

 

  1. In August 2001, both plaintiffs attended Gosford Police Station and reported the sexual assaults to Police. They both provided statements to the Police.

 

  1. In early 2002, DC consulted a psychologist whose name she is unable to recall.

 

On 1 June 2002, DC made a further statement to Detective Senior Constable Cremen at Kincumber Police station.

 

  1. Sometime in late 2002, DC and TB were advised by Detective Senior Constable Cremen to see Richardson Burgin Steer solicitors for two reasons, firstly to seek counselling and, secondly, to lodge a Victims Compensation application.

 

  1. In August 2005, DC commenced counselling with Dr Janina Szyndler, a clinical and developmental psychologist upon referral from Victims Services. She attended counselling with Dr Szyndler on 14 further occasions. Dr Szyndler made a diagnosis of DSM-IV Post Traumatic Stress Disorder (“PTSD”) on the basis of DC experiencing flashbacks, avoidance and increased arousal.

 

  1. DC and TB’s evidence is similar so far as their claims for victim’s compensation are concerned (see Exs 1 & 2). In 2003, they saw a solicitor briefly. He completed their forms and they went back to his office and signed their applications. The form asked “Who reported it to the Police?” to which both answered “DOCS and Victim”. Question 32 asked, “Was there a delay in report to the Police?” They answered, “Yes”. When asked why there was a delay, the answer was that the “Matter was reported to DOCS. Victim is uncertain if it was then reported to Police.” Question 36 asked whether they intended to make a civil claim in relation to the matter. They replied, “No”. Subsequently both received cheques.

 

  1. On 3 June 2004, J was arrested, interviewed and charged in relation to the assaults on TB and DC by Detectives Wink and O’Sullivan.

 

The trial and sentence of J

 

  1. On 1 August 2005, J’s criminal trial commenced. Initially he pleaded not guilty. However, a few days later he asked to be re-indicted. On 5 August 2005 he pleaded guilty to all eight charges outstanding against him. The following is a summary of those charges:

 

1. Indecent assault of TB between 1 January 1974 and 31 December 1974;

 

2. Rape of TB between 1 January 1974 and 31 December 1974

 

3. Indecent assault of DC between 1 January 1975 and 31 December 1975;

 

4. Rape of DC between 1 October 1977 and 1 October 1979;

 

5. Assault occasioning actual bodily harm to TB between 1 January 1978 and 31 December 1978;

 

6. Indecent assault of DC between 1 October 1978 and 1 October 1979;

 

7. Indecent assault of DC between 1 October 1978 and 1 October 1979;

 

8. Indecent assault of DC on 1 October 1978.

 

  1. J’s sentencing hearing was adjourned to 28 October 2005. He was granted bail until that date. DC recalls that an AVO was put in place. She was not sure of the terms but was informed that it covered the areas wherever she and TB lived. From 5 August 2005 until J was taken into custody on 4 August 2006 DC was absolutely terrified that he was going to come around to her home and harm her and her children.

 

  1. Effect of court proceedings on DC

 

  1. Both plaintiffs were present during the District Court proceedings. DC truly believed that she was capable of facing her stepfather and able to stand up to him but it did not go the way she planned (T109.3).

 

  1. DC was determined that she was going to try and be calm. She had a support person with her. Xanax had been prescribed to assist her with anxiety that she might suffer and she took the prescribed amount.

 

  1. She knew that she was going to be giving evidence in the trial and she had been preparing herself mentally to cope. She gave evidence that w hen she went into the courthouse all her composure and self-strength seemed to disappear. DC remembers that she was terrified. She suffered from breathlessness, palpitations and headaches . Seeing J in the courthouse only made her feel worse. It brought back her anxieties and fear of him.

 

  1. When DC was called to give evidence she felt like was going to faint. After she gave her evidence on the first hearing day, she was present at the courthouse during the remainder of the proceedings on 1 August 2005 and on 2, 4 and 5 August 2005. At the conclusion of each hearing day she returned to her home.

 

  1. On 12 September 2006, J was sentenced in relation to the offences by Judge Coorey. After J had been sentenced, he was taken out of the dock and was led away by a court officer. He looked at DC and TB and ran his index finger across his throat.

 

  1. Following J being sentenced DC had what she would describe as “a breakdown”. TB contacted DC’s medical general practitioner in Sydney who wanted DC to be hospitalised. DC refused to go, as she did not want to leave her children. She stayed in at home and unfortunately neglected her clients for a while. She did MYOB bookkeeping. DC says she became hermit-like until she was able to start to pull herself together again. Sometimes she would wake up in the morning, have a panic attack and was unable to leave the house at all that day. She would have to cancel appointments and would not answer the phone. She feels that these problems are becoming worse.

 

  1. As time goes by she continues to realise the ways in which the abuse has affected her life.

 

  1. J has since been released from prison.

 

Legal advice

 

  1. On 6 March 2007, both plaintiffs attended a conference with Dr Morrison SC, who advised them for the first time that they might have a cause of action against the two defendants. The solicitor’s file note of this conference (and other later conferences) are in evidence (Ex 3). Until then the plaintiffs had assumed that the only person they could sue was J, who was in jail and had little by way of assets.

 

  1. In February 2008, both plaintiffs underwent lengthy psychiatric assessments by Dr Michael Diamond. His report, dated 19 February 2008 in relation to DC, expressed the view that she was not fully aware of the nature of her psychiatric injury until the court proceedings of 1 August 2005. I shall refer to the medical evidence in more detail later in this judgment.

 

  1. On 2 May 2008 TB and DC filed their statements of claim.

 

  1. Currently DC forces herself to behave in that way that appears outgoing. In reality she leads a reclusive lifestyle. She has a few close friends that she knows she can trust. She avoids a lot of public areas because she cannot cope with crowds because she is always watching faces in the crowd. She constantly watches the number plates of motor vehicles and if she becomes aware of seeing the same number plate on several occasions over a few days, she becomes agitated and fearful that the person in the car may be going to do her some harm.

 

  1. There have been occasions when DC has telephoned a very close female friend and told her of her anxiety and agitation and has been told to drive to her house. DC is very cautious about the use of her mobile phone. If the caller’s number does not show up on her phone or she does not recognise the phone number that does show up, she will not answer.

 

  1. Every night without exception she sleeps with a cricket bat next to her. At night before she and her children go to bed, one of the children accompanies her as she makes sure that every door and every window in the house is locked. Her home has security lights that are activated by movement. Closed circuit television has been installed to cover all sides of the property and every night she checks the CCTV system to make sure that it will work if necessary during the night.

 

  1. She has a distrust of men. She has difficulties with sexual relationships. She does not like being touched by a man. If she does have sexual intercourse with a man she feels very restricted in her ability to take part in the sexual act.

 

  1. In the late 1990s she started her first business. She found it necessary to start her own business because she found difficulties in being able to satisfy the normal basic requirements of any employer. It had been difficult to come to work on time, work the normal number of hours per day, be able to attend five days per week and not have intruding anxiety other than work worries. Over the years she has found that about every two to three years that for a period of two months or so she is unable to apply herself to running her business. DC stays at home and will only go out, for example, to do necessary shopping if she is not accompanied by someone that she knows. She will not talk to clients nor answer her front door during this period. This problem impacts on the viability of her business. After the period of two months or so DC has to start to pull herself together again and carry on with trying to pick up her business again and to take part in life.

 

  1. She has significant levels of anxiety, for which she takes medication. She also sweats from her palms when she is feeling anxious. To deal with this, DC wears a long scarf, which she uses to wipe the sweat from her palms. DC currently takes Xanax for anxiety and Cymbalta for depression and anxiety.

 

The pleading in the Further Amended Statement of Claim

 

  1. An Amended Statement of Claim (“ASC”) filed on 16 March 2009 was before Mathews AJ when she dealt with the strike out application. That ASC pleaded the following causes of action against both defendants:

 

  • Negligence
  • Breach of fiduciary duty
  • Misfeasance in public office
  • Criminal misconduct

 

  1. However, before Mathews AJ and before the Court of Appeal counsel for TB and DC indicated that the plaintiffs do not rely on any cause of action other than breach of duty.

 

  1. In relation to the cause of action for criminal misconduct, the judgment of Mathews AJ contains the following at [42] and [43]:

 

” The plaintiffs submit that the defendants’ obligation to report [J’s] offences to the police arose by virtue of the common law offence of misprision of felony, which arguably still existed in 1983.

 

During submissions relating to this claim, [counsel for] the defendants pointed out that the criminal onus would apply to this allegation. I hope I am not misconstruing [counsel’s] response, but I understood him then to say that the plaintiffs did not wish to assert criminal misconduct on the part of the defendants as a separate head of claim. My understanding of the plaintiffs’ case is that they were seeking to rely upon the fact that misprision of felony remained an offence in 1983 to show that the defendants had an obligation to report the matter to the police, thereby giving content to the duty of care which the defendants were said to have owed to the plaintiffs. It was for this purpose only that the plaintiffs sought to rely upon misprision of felony, namely as advancing their claim in negligence … Accordingly, there is no remaining claim for criminal misconduct and I put this matter to one side.” (emphasis added)

 

  1. Subsequently before the Court of Appeal counsel for TB and DC confirmed that the reliance on the common law offence of misprision of felony was merely to “give content to the duty of care” owed by the defendants (see DC v State of New South Wales at [46]), rather than giving rise to a separate claim.

 

  1. The further amended statement of claim (“FASC”) filed on 17 March 2010 appears to rely solely on a cause of action for negligence. Misprision of felony is still relied on to bolster their case that there was a duty of care (FASC [44](f)).

 

  1. TB and DC claim damages, including aggravated and exemplary damages.

 

Extension of time based on disability

 

  1. DC seeks a declaration pursuant to ss 52 and 11 of the Limitation Act (“the Act”) that she suffers from a disability so as time does not run against her for the purposes of the Act.

 

  1. Section 52 reads:

 

“(1) Subject to subsections (2) and (3) and subject to section 53, where:

 

(a) a person has a cause of action ,

 

(b) the limitation period fixed by this Act for the cause of action has commenced to run, and

 

(c) the person is under a disability, in that case:

 

(d) the running of the limitation period is suspended for the duration of the disability, and

 

(e) if, but for this paragraph, the limitation period would expire before the lapse of three years after:

 

(i) the date on which the person last (before the expiration of the limitation period) ceases to be under a disability, or

 

(ii) the date of the person’s death,

 

(whichever date is the earlier), the limitation period is extended so as to expire three years after the earlier of those dates.

 

(2) This section applies whenever a person is under a disability, whether or not the person is under the same or another disability at any time during the limitation period…”

 

  1. Section 11(3) of the Act defines “person under a disability” as follows:

 

“(3) For the purposes of this Act a person is under a disability:

 

(a) while the person is under the age of eighteen years, or

 

(b) while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of:

 

(i) any disease or any impairment of his or her physical or mental condition…”

 

  1. The effect of these sections is to suspend the limitation period during the period of disability.

 

  1. Given that DC’s causes of action accrued prior to 1990, in my view the applicable limitation period is the six years provided for by s 14 of the Limitation Act Section 18A, relating to personal injury, does not apply to causes of action arising prior to 1 September 1990. The six-year limitation period begins when any disability ends.

 

  1. DC was born on 1 October 1970. She attained the age of 18 years on 1 October 1988. On 1 October 1994, the six-year limitation period would have expired. DC submitted that the limitation period should be suspended until 1 August 2005 by reason of the disability she suffered during that period.

 

  1. The starting point on this topic is Kotulski v Attard [1981] 1 NSWLR 115 where Slattery J stated at 117 to 118:

 

“Section 11(3)(b) is concerned with two classes of person:

 

One who is “incapable” (which conveys the concept of total inability) and the other “substantially impeded in the management of his affairs in relation to the cause of action … by reason of disease or impairment or physical or mental condition.”

 

According to the Shorter Oxford Dictionary to “impede” means to obstruct in progress or action; to hinder or to stand in the way of. Substantially”, in my view, does not mean trivial or minimal, neither does it mean total: see R v Lloyd [1967] 1 QB 175. “Mental condition” which is not defined in the Act is, in my view, a condition of or pertaining to the mind which is the seat of consciousness, thoughts, volition and feelings.

 

It seems to me that the expression “mental condition” is meant to cover the mind’s activities in all its aspects, including the ability to form a rational judgment, or to exercise willpower to control physical acts in accordance with rational judgment. When dealing with the words “unsound mind”, which were not defined in the relevant statute, Lord Denning MR in Kirby v Leather [1965] 2 QB 367, at p 383 said:

 

So here it seems to me in this statute a person is “of unsound mind” when he is, by reason of mental illness, incapable of managing his affairs in relation to the accident as a reasonable man would do.

 

I am of opinion that it is a relevant matter, in the consideration of the question raised by the notice of motion, to have regard to how a reasonable person without any impairment would conduct himself in the management of his affairs. A reasonable person without impairment would be able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice and to give instructions about any action …”

 

  1. The Court of Appeal has approved the principle stated by Slattery J in Kotulski v Attard in a number of cases: see State of New South Wales v Bennie[2005] NSWCA 172; New South Wales v Harlum [2007] NSWCA 120Saunders v Jackson [2009] NSWCA 192Olive v Johnstone [2006] NSWCA 21 at [61] and Guthrie v Spence [2009] NSWCA 369 at [144].

 

  1. Both parties referred to Guthrie as providing guidelines in the factual situation here. In Guthrie , Mr Spence, the plaintiff, was able to attend to his ordinary activities of daily living from the time he turned 18. He had the intelligence and application to complete a university course (with some difficulties), and could maintain employment in a responsible position that required the exercise of specialised skills.

 

  1. In Guthrie , Campbell JA explained at [140]:

 

“[140] In the context in which it occurs in s 11(3)(b), the relevant “affairs” are ones in relation to a particular cause of action. In a general sense, managing one’s affairs in relation to a particular cause of action includes doing the various things that would need to be done if that cause of action were to be dealt with. Thus, it includes seeking advice about whether a civil remedy exists for some perceived wrong, seeking advice about the difficulties, risks, cost and effort involved in pursuing any such remedy and the likely returns, comprehending and evaluating that advice, and, if the decision to commence proceedings is taken, thereafter engaging in the continuing process of co-operation, interaction and decision-making that exists between lawyer and client in running any civil action.”

 

  1. Further, Campbell JA in Guthrie , observed at [178] to [179]:

 

“[178] … It can also be accepted that, if a person is able to manage their affairs in relation to numerous and diverse areas of their life, a good explanation would be called for before one accepted that that person was not able to manage their affairs in relation to some different area of their life. In my view, the medical evidence, and the history of the manner in which Mr Spence has come to deal with the consequences of the assaults, provide that explanation so far as his ability to manage his affairs in relation to dealing with his causes of action concerning the assaults is concerned.

 

[179] The judge accepted, as do I, the medical evidence that Mr Spence suffers from post traumatic stress disorder, that the assaults were the trauma that was, at the least, a significant precipitating cause of the condition, and that avoidance of any form of stimuli or life events which may remind him of the assaults is one of the characteristics of the disorder. The avoidance behaviour is not only a matter of conscious decision on his part. …”

 

  1. In this matter I will consider the medical evidence together with the lay evidence and decide whether it establishes, first, whether or not DC was substantially unable to manage her affairs in relation to the cause of action “by reason of the impairment of her mental condition”; and secondly, whether the evidence establishes that there was a causal link between DC’s mental impairment and her failure to commence proceedings, such as to provide an explanation for DC’s ability to manage her affairs in some respects, but not in relation to the cause of action.

 

  1. DC says that the abuse, which she and her sister suffered at the hand of J, had had a major and pervasive impact on her life. DC has tried to cope with the consequences as best she can.

 

  1. DC says that she had behavioural issues in the years, which followed the abuse at the hands of J, which ended in 1984. This behaviour led to several admissions to detention centres. It also included drug use. For many years she did not associate that behaviour as being in any way linked to the sexual abuse at the hands of J. She says that it was probably only in the period leading up to J’s trial in 2005 that she started to become aware of a connection between the behaviour and the abuse.

 

  1. DC says that as far as the abuse itself was concerned, it was something that she had to try and forget about and put out of her mind. Since at least the mid 1990s, she had had a notion of a “little black box” in her mind, in which she stores all the ugly aspects of reality relating to the abuse and its consequences. She can close the box in her mind and give the appearance of functioning quite well on a day-to-day level. However, functioning of a day-to-day level can be a major struggle. She says that whenever she has to confront the contents of the little black box, it jeopardises her emotional stability and she is likely to emotionally unravel.

 

  1. Similar to Mr Spence in Guthrie , since the time DC attained the age of 18 years, she has been able to run her own finances, hold down various jobs, marry and bring up children.

 

  1. In 2005, J’s trial was a catalyst for DC. It brought home to her the seriousness of what had happened to her. DC thought she would be calm and strong. Instead seeing J brought back her anxieties and fear of him.

 

Medical evidence in relation to disability

 

  1. Both parties relied on expert psychiatric evidence. DC relied on the reports of Dr Diamond dated 19 February 2008 and 1 December 2010. The defendants relied upon the evidence of Dr Champion dated 30 September 2011. While Dr Diamond interviewed both plaintiffs, Dr Champion did not have the benefit of interviewing them. Dr Champion adopted the approach of commenting upon Dr Diamond’s reports. There are areas of agreement between the doctors and some areas of disagreement. Dr Champion did not have the benefit of interviewing DC. Both psychiatrists wrote a joint report dated 16 November 2011. At court they both gave evidence and were cross-examined concurrently.

 

  1. On 1 February 2008, DC had a lengthy psychiatric assessment by Dr Diamond. DC says that it was only after reading the report of Dr Diamond that she realised that in trying to contain in her mind or “bottle up” the consequences of the conduct of J that her outward and presenting appearance of being “tough, purposeful and competent” was essentially “bravado”. She became aware that during the interview with Dr Diamond that in describing some of the events that had taken place over the years she “could no longer detach or dissociate [her] feelings from those accounts”. On another occasion she apparently became “frankly dissociated during the course of the interview.”

 

  1. Dr Diamond referred to her suffering from “longstanding symptoms of hyper-arousal and various odd fears or phobia”; “the development of overwhelming hyper-arousal with preoccupation about a sense of vulnerability and lack of safety for herself and her children”.

 

  1. For the purpose of these limitation applications (including the alternative application under ss 60G and 60I) I accept that:

 

  • DC was periodically unable to work particularly in the late 1990s for periods of two to three months. She couldn’t work for an employer due to anxiety.

 

  • She had difficulty going out, she suffered flashbacks, she was angry, agitated and violent. She suffered anxiety and panic attacks and suicidal ideation.

 

  • She felt helpless as her mother served her and her sister up on a platter to the stepfather.

 

  • She has issues concerning people breathing close to her, something being under the bed, going into empty rooms, opening cupboards or toilets if there was no one else in the house and going to other homes to use the toilet.

 

  • She survived by being shut down and keeping her memories in a “black box”, where they stayed.

 

  • She suffered in the pre2005 period from poly substance abuse and drug use. She manifested conduct disorder, substance abuse, depression, dissociation, anxiety disorder, and major behavioural issues. Her adolescent conditions were more dysfunctional and more severe than her sister.

 

  1. Both Dr Diamond and Dr Champion say that DC is presently suffering PTSD. Dr Champion had no difficulty accepting that both TB and DC had a diagnosis of chronic posttraumatic stress disorder that preceded the court case of 1 August 2005 (T122). Dr Diamond gave evidence that he believed that both plaintiffs had all the evidence to support a diagnosis of chronic posttraumatic stress disorder from their childhood when the sexual abuse took place and thereafter, and that there is ample evidence to support that diagnosis although that diagnosis was not made (T118).

 

  1. Dr Diamond’s opinion is that both plaintiffs would have been acutely distressed and impaired at that time, but at times their chronic PTSD is quite quiescent, and at those times they adopted defences of avoidance so that the reminders of the events and the emotions that attached to them were simply being avoided, which means to go down the path that would rekindle those emotions would be resisted. So at those times they may have been capable of doing other things like being employed or running their finances. According to him, those are not good measures of whether or not they suffered an impairment that impeded them to bring a cause of action (T125).

 

  1. Dr Diamond was also of the opinion that there are moments where they become overwhelmed. The memory and the emotional accompaniment to the memory are re-experienced and there is at that point a significant broadening of the conditions. It would become overt at that point but may not have been apparent in the preceding period. It is Dr Diamond’s opinion that one can see people who appear to be functioning not necessarily well but in the general community sense they may be capable of some functioning and they may do that for many years but it does not mean they are not impaired (T127).

 

  1. Dr Diamond continued and said that “in such people there tends to be a high end dissociation potential or examples of avoidance behaviour or emotional numbing around certain particular key issues because these are the behaviours or these are the psychological experiences that allow that person not to be up ended by the effect of trauma all the time” (T127). Dr Champion was “pretty much” in agreement with Dr Diamond on those points (T127).

 

  1. Drs Diamond and Champion both agreed that TB and DC have always suffered from dissociation (Conclave Report of 16 November 2011). The Oxford Nurse’s Dictionary defines dissociation as:

 

“the process whereby thoughts and ideas can be split off from consciousness and may function independently, allowing conflicting opinions to be held at the same time about the same subject …”.

 

  1. It is said to be a defence mechanism, whereby a person may partially cope with an appalling experience by putting it out of their mind and not associating it with their continuing activities.

 

  1. On the topic of disability and the suspension of the limitation period, Drs Diamond and Champion disagree. Dr Diamond says that both TB and DC were disabled by being substantially impeded in the management of their affairs in relation to the cause of action in respect of the limitation period by reason of their mental condition throughout the whole period.

 

  1. The doctors disagree as to whether or not DC was under a disability for the period up until 2008. Dr Champion gave evidence that in his opinion there was not total impairment over time but there were periods when both TB and DC were impaired (T122-123) and they were substantially impeded in the management of their affairs in relation to the cause of action (T124). However, Dr Champion could not specify which periods they were impaired and which periods they were not impaired, as he did not have sufficient information.

 

  1. Dr Diamond gave evidence that when DC tried to report the sexual abuse to the Police in 1994 she was traumatised further because “she had no tracks of making her claim.” Her response to that was to become even less engaged in the process although the effect of that was to worsen her condition (T133).

 

  1. So far as 2000 and 2001 are concerned, Dr Diamond says that DC became more determined and was quite focused on the factual material. She was quite detached from the emotional material but quite focused on righting this wrong and this was where all her energy went. That is where her intent or focus was to bring this injustice to the law. When DC had to deal with her mother’s allegations to DOCS, she dealt with it by trying to establish the fact of the abuse and she did. She reacted to that and again, became quite shut down about it. These realisations are sequential and those would be two landmark moments where there was approach and withdrawal (T133).

 

  1. Dr Diamond was asked if he agreed with Dr Champion’s evidence that, in terms of the capacity to manage affairs, in respect of a legal process such as a cause of action that there were times when she perhaps was not capable of managing but there were times when she clearly was. Dr Diamond replied, that he though there were times when she was more capable of managing her day to day affairs but whether or not she was capable he did not believe she was capable of fully following through a cause of action dealing with the emotional accompaniment. He thought DC was deterred and that she became more shut down when confronted, so it did not enable her fully to pursue a cause of action, as someone without this condition might have been able to do (T133-134).

 

  1. I accept that in 1994 DC approached the Police but was told there was no record of J on the Police system; the matter did not proceed further. She gave the following evidence (T83):

 

“I walked into Blacktown police station and I was informed he had no criminal record and I told them that was incorrect, I could tell them at that time I was aware of charges in the 60s okay, and they went out and had me sitting at the front counter and came back and said there was no record of him having a criminal history whatsoever. I got frustrated. I walked out and within a short period of time I found out I was pregnant.”

 

  1. DC’s evidence in her affidavit that she had been too upset at that time to take the matter further; she had the perception that she had been given the “run around” at Blacktown Police Station.

 

  1. In New South Wales v Harlum , Beazley JA emphasised the affect that a person’s mental impairment might have on the willpower to commence, and continue proceedings, as follows:

 

“[94] … it requires the exercise of willpower to initiate the claim: see Kotulski at 118. In this regard, I consider that it is important to understand that it is not only a question of having the willpower to engage in the task of commencing proceedings. Such an approach takes a far too simplistic view of what is involved in the commencement of an action. In making a decision to commence an action, the person is also making a decision to continue with the claim.

 

[95] Even if a person is able to fulfil each of the requirements contained in the State’s approach, including the making of a decision to instruct a lawyer and to provide instructions, the person may not have the willpower to engage in all that is required to commence an action because of that person’s mental condition.”

 

  1. In Saunders v Jackson Hoeben J (with whom Ipp and Macfarlan JJA agreed) said at [44] – [45]:

 

“A consideration of this question must have regard to the nature of the particular cause of action. This was not an industrial accident or a motor vehicle accident where a decision whether or not to commence and continue with an action is relatively straightforward. The cause of action alleged sexual assault by a family member over many years in the context of a family with considerable prestige in the community and with a distinguished association with the police force.

 

It would take a person of exceptional robustness and strength of character to pursue such a claim in the civil courts even if that person were not suffering from an impairment of her mental condition.”

 

  1. The cause of action in this case is for sexual assault by a family member. In my view in 1994 DC did not have the “robustness” required to continue with her claim after the Police decided not to investigate J. I agree with Dr Diamond that after DC approached the Police, to take some action in relation to J’s sexual abuse and was told that it had been reported, she was traumatised further. This meant that she was unable to initiate any claim against J.

 

  1. In 2001, DC was able to take steps, along with her sister TB, that eventually let to the prosecution of J for sexually assaulting her. In August 2001, DC attended Gosford Police station to report the assaults and provide as statement. In 2003, she lodged a Victims Injury Compensation claim. While DC was then mainly focussed on the criminal prosecution of J, it is my view that from about the end of 2003 she would have been capable of seeking legal advice in relation to any cause of action she may have had in relation to the assaults, including causes of action against the defendants. She would also have been capable of taking the steps necessary to prosecute that cause of action. DC would have been able to manage her affairs in relation to dealing with the causes of action concerning the assaults. It follows that it is my view that from the end of 2003 DC was not under a disability as defined in s 11(3) and set out in s 52.

 

  1. The limitation period is suspended by reason of DC’s disability from the day she turned 18 until the end of 2003. Applying the six-year limitation period, she commenced proceedings within time, on 2 May 2008.

 

  1. In case I am wrong in this regard, I will now consider DC’s application for an extension of time.

 

Extension of limitation period pursuant to sections 60G and 60I

 

  1. Section 60G(2) of the Limitation Act reads:

 

“(2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines.”

 

  1. The relevant provisions of s 60I are as follows:

 

“(1) A court may not make an order under s 60G or 60H unless it is satisfied that:

 

(a) the plaintiff:

 

(i) did not know that personal injury had been suffered, or

 

(ii) was unaware of the nature or extent of personal injury suffered; or

 

(iii) was unaware of the connection between the personal injury and the defendant’s act or omission,

 

at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and

 

(b) the application is made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii).

 

  1. The issues to be determined on a limitation extension application of the kind brought by TB and DC are succinctly stated by Davies J in Locklier v State of New South Wales [2009] NSWSC 746 at par [43] as follows:

 

“On an application under s 60G it is generally accepted that there are three matters which must be proved to the satisfaction of the court by the applicant for an extension. The first of these is a compliance with what have been called the gateway provisions in s 60I(1). The second is evidence that the Plaintiff has a case to advance in relation to the cause of action sought to be brought. The third is the notion derived from the words “just and reasonable” in s 60G(2) which ordinarily involves the consideration of whether a fair trial is possible in the circumstances of the delay. This is sometimes discussed in terms of prejudice to the defendant from the delay but prejudice engendered by delay and fairness at trial were said not to be distinctly differing tests: BHP Steel (AIS) Pty Ltd v Lakovski [2000] NSWCA 334 at [9] Holt v Wynter [2000] NSWCA 143(2000) 49 NSWLR 128 and Dow Corning Australia Pty Ltd v Paton (unreported, Court of Appeal, 24 April 1998).”

 

Date of application

 

  1. An issue has arisen as to the date the application was made. On 2 May 2008, the statement of claim was filed. On 17 December 2008, the notice of motion seeking an extension of the limitation period was filed. The plaintiffs submitted that the date of the application is the date of the filing of the statement of claim, namely 2 May 2008. The statement of claim includes a paragraph that pleads, “The plaintiff claims such extension of time as is necessary to commence/pursue these proceedings.”

 

  1. Counsel for the defendants submitted that under s 60I(1)(b) of the Limitation Act the plaintiffs’ application for a s 60G order had to be made within three years of the date on which TB and DC became aware (or ought to have become aware) of the matters listed in paragraph 60I(1)(a)(i)-(iii). Counsel submitted that the relevant date was 5 August 2005, being the date on which J was re-arraigned and pleaded guilty. According to counsel for the defendants, notwithstanding extensive correspondence with the plaintiffs’ solicitors following their filing of the statement of claim, in which the defendants’ solicitors made clear that the plaintiffs must file a motion to extend the limitation period, the plaintiffs did not seek to make a limitation extension application within three years of 5 August 2005. They further submitted that the notice of motion seeking an extension of time filed on 17 March 2010 at the same time as the FASC, relied on for the application before me, is simply too late.

 

  1. It is my view that the “application” was made on 2 May 2008 because it was on that date that the defendants were put on notice that the plaintiff was seeking “such extension of time as is necessary to commence/pursue these proceedings”.

 

  1. To satisfy the “gateway” provisions in s 60I(1) DC must satisfy this Court of the following:

 

(i) that as at the expiration of the limitation period, being 1 October 1994, DC was unaware of one of the matters contained in s 60I(1)(a)(ii) or (iii). DC does not rely upon s 60I(1)(a)(i).

 

(ii) that DC made her application of 2 May 2008 within three years of becoming aware (or within three years of when she ought to have become aware) of all of the matters contained in s 60I(1)(a). That means that this Court has to be satisfied that she was not aware (or ought not to have been aware) of at least one of those matters until after 2 May 2005.

 

  1. The test of knowledge posed by s 60I(1)(a)(ii) and (iii) requires the court to look at the actual awareness of the plaintiff. Neither the reasonableness of that awareness nor constructive knowledge is an element of s 60I(1)(a) (see Harris v Commercial Minerals Limited [1996] HCA 49(1996) 186 CLR 1 at 9 and 10).

 

  1. However, s 60I(1)(b) imposes an objective test (“became aware (or ought to have become aware)”) of all three matters listed in paragraphs (a)(i)-(iii).

 

Whether DC was “unaware of the nature or extent of the personal injury suffered” – s 60I(1)(a)(ii)

 

  1. The nature and extent of the injury, which the plaintiff has sustained, is to be determined as at the date of the hearing of the application ( Harris at 12). A plaintiff may be held to have been aware of the nature or extent of his or her injury within the relevant period if during that period he or she was aware of the effect which the injury was then having upon him or her and of its likely future course, even though he or she may have been unaware of the precise pathology or medical diagnosis. On the other hand, knowledge of the medical diagnosis will not itself amount to knowledge of the nature and extent of the injury if the plaintiff is unaware of significant aspects of the prognosis, for example that the injury is permanent and will not be amenable to treatment or that it may deteriorate with the passage of time. As long as the consequences are of a kind that the plaintiff expects, the plaintiff will be aware of the extent of the injury.

 

  1. As previously stated, both Drs Diamond and Champion agreed that the plaintiffs had diagnosable PTSD since August 2005. There was disagreement between them as to whether PTSD was fully diagnosable immediately before that date (T117-118). Dr Diamond’s view was that both plaintiffs had all the evidence to support a diagnosis of chronic PTSD from the time of the injuries, which would extend back to their childhood when the sexual abuse took place, and thereafter. He was of the opinion that there was ample evidence to support that diagnosis although that diagnosis was not made (T118).

 

  1. Dr Diamond’s opinion was that DC was unaware of the nature or extent of personal injury suffered until the overwhelming experience of the overt manifestation of PTSD that occurred in court on 1 August 2005. He said that following her appearance at J’s trial, DC formed a deeper and fuller comprehension of what had happened to her. According to Dr Diamond this was accompanied by the development of features of full-blown PTSD as it now exists in her and that acute episode began to manifest in court on 1 August 2005.

 

  1. Dr Diamond opined that from a psychiatric point of view this was a complex scenario in that it was not always a matter of whether the patient knew of something or not. It was the extent to which that knowledge impacted upon the individual and of crucial importance was the psychological impact that was experienced when the full implication of that knowledge became revealed to the patient or experienced by them. Dr Diamond was of the opinion that that was a crucial issue in this case and the pivotal moment of relevance occurred in the courtroom on 1 August 2005.

 

  1. In relation to DC Dr Diamond said that from his experience, when dealing with individuals who have been traumatised cumulatively over many years, it is not merely a question of whether the individual has awareness that trauma occurred or not. The full weight of the trauma, together with the full realisation and experiencing of the emotional accompaniment to the trauma can take many years to manifest. It is not infrequent that that manifestation sometimes only occurs after there has been a degree of maturation and stability for that individual. He believes that this occurred with DC.

 

  1. I accept the evidence of Drs Diamond and Champion that DC did not become aware of the nature or extent of her personal injury until 1 August 2005 and I make this finding. Therefore, DC was unaware of the nature or extent of her personal injury as at the expiration of the relevant limitation period on 1 October 1994 .

 

  1. Hence, DC has passed through the s 60I(1)(a)(ii) threshold. She has also satisfied s 60I(b) because her application of 2 May 2008 was made within three years of her becoming aware of all the factors in 60I(1)(a)(i)-(iii).

 

  1. In case I am wrong in this regard, I will consider whether DC was also unaware of the connection between the personal injury and the defendants’ acts or omissions as at 2 May 2005.

 

Whether DC was “unaware of the connection between the personal injury and the defendant’s acts or omissions” s 60I(1)(a)(iii)

 

  1. The plaintiff’s case against the defendants is based upon the negligent failure to exercise their power to report the sexual assaults and abuse perpetrated by J upon her to the Police.

 

  1. The defendants submitted that as the plaintiff knew that there was a failure to report to Police in 1994 she does not pass through the s 60I(1)(a)(iii)threshold. It is not in dispute that the plaintiff knew that there was a failure to report but rather what she did not know was that the defendants may have had a statutory obligation to report these matters to the Police and they did not do so.

 

  1. YACS became involved in 1983 and 1984 and at the time of those events and subsequently DC did not know what the obligations of the department or its officers were. DC had no means of knowing whether it met its obligations, whatever they were. DC says that it was only on 6 March 2007 that she knew of these obligations, when she received advice from Dr Morrison that she may have a cause of action against both defendants because they had a duty to report the sexual abuse to the Police but failed to do so. Up until that time DC had assumed that the only person she could sue was J.

 

  1. I accept that it was not until 6 March 2007 that DC became aware that she may have a cause of action against the defendants because they failed to report the sexual abuse by J upon DC to the Police.

 

  1. In Locklier Davies J faced a similar factual scenario and decided:

 

” The Plaintiff submits that she did not have full insight into matters until about November 2005 after she had revisited Hay with some of the other girls from the home and consulted her present solicitors. The Plaintiff also submits that did not know that she could bring proceedings until she received advice from her present solicitors, particularly because of the negative advice she claims was given by Brazel Moore Lawyers. That, however, is not the appropriate test for the purposes of s 60I(1)(a)(iii).”

 

  1. Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts and omissions rather than legal conclusions. The acts or omissions referred to in s 60I(1)(a)(iii) are the acts or omissions on which the plaintiffs rely to found the cause of action referred to in s 60G. Those acts or omissions will ordinarily be found in the plaintiff’s particulars of negligence: Drayton Coal Pty Limited v Drain (NSWCA, 22 August 1995, unreported).

 

  1. The particulars of breach of duty of both defendants are the failure to report a reasonable suspicion and/or a belief and/or admissions of felonious conduct by J to the Police forthwith; that the State by its servant and the Director and/or its servant, Steve Frost and/or its servant CQ, failed to report their reasonable suspicion and/or beliefs and/or admissions to the Police forthwith. The act or omissions pleaded are not that there was a failure by the defendants to report the sexual abuse to the Police but rather that the defendants had a duty to report the sexual abuse to the Police but failed to do so.

 

  1. In Drayton Coal Pty Limited v Drain the Court of Appeal said:

 

“The mere fact that a plaintiff’s lawyers can think up some act or omission, upon which they will wish to place some reliance at the trial, which was not known to the plaintiff at the relevant time, does not automatically mean that the requirements of s 60I(1)(a)(iii) are satisfied. On the other hand, the decision in Dedousisestablishes that unawareness of the material act or omission which constitutes a substantial ground upon which reliance will be placed is sufficient to satisfy s 60I(1)(a)(iii).”

 

  1. DC has not satisfied me that as at May 2005 she was unaware of a material act or omission by the defendants upon which reliance will be placed. The material facts, namely the defendants’ failure to notify Police, was known to her as at May 2005, even if the possible legal consequences flowing from that failure were not.

 

Is there a real case to advance?

 

  1. Having decided that DC has shown that she was unaware of the matters contained in s 60I(1)(a)(ii) as at May 2005 and that therefore she passes through that threshold, I now turn to consider whether the plaintiff has a real case to advance. In relation to s 60G, the applicant bears an evidentiary and persuasive onus, which, in the absence of concession, requires material to be adduced, demonstrating that the dilatory plaintiff has a real case to advance. Then if there is a real case to advance I will consider whether it is just and reasonable to extend the limitation period.

 

  1. There is evidence from CQ that the sexual abuse was not reported to the Police. On 20 January 2005, in her statement to an investigating Police officer in relation to the criminal prosecution of J, CQ stated:

 

“I am unsure why the matter did not get reported to the police, but in 1983 DOCS were not Mandatory Notifiers to the police for sexual assault offences, and the matter only went to court. This changed until after the Sexual Assault Task Force in 1985 or 1986 [sic].”

 

  1. In DC v State of New South Wales the Court of Appeal said at [50] – [54]:

 

“[50] The concession made by the respondents concerning the existence of the duty of care identified by the primary Judge was founded on the judgment of Mason P (with whom Priestley and Beazley JJA agreed) in TC. His Honour expressed the view in that case (at [117], [125]) that it was arguable that the State, through YACS, owed a duty to exercise reasonable care in the discharge of the mandatory requirements of both limbs of s 148B(5) of the CW [Child Welfare] Act: that is, the requirements that upon YACS receiving a notification under s 148B(2) or (3) of the CW Act, it was to cause an investigation to be promptly made into the matters notified and, if satisfied that the child may have been assaulted or ill-treated, to take such action as the Director thought appropriate, including reporting matters to the Police.

 

[51] The observations in TC were obiter dicta, but since the respondents did not challenge the existence of the duty of care relied on by the applicants, it is not necessary to explore the course of authority after TC. Nonetheless, it should be noted that subsequent authority tends to support the views expressed by Mason P. In Stuart v Kirkland-Veenstra [2009] HCA 15 ; 237 CLR 215, the High Court held that a statutory power to act in a particular way is a necessary precondition to the liability of a public authority for breach of a duty of care: at [5], per French CJ; at [112], per Gummow, Hayne and Heydon JJ (“joint judgment”); at [149], per Crennan and Kiefel JJ. The joint judgment pointed out (at [112]-[113]) that although power is a necessary condition:

 

it is not a sufficient condition. Statutory power to act in a particular way, coupled with the fact that, if action is not taken, it is reasonably foreseeable that harm will ensue, is not sufficient to establish a duty to take that action. Rather … the existence or otherwise of a common law duty of care owed by a statutory authority (or in this case the holder of statutory power) “turns on a close examination of the terms, scope and purpose of the relevant statutory regime”. Does that regime erect or facilitate “a relationship between the authority [here the holder of statutory power] and a class of persons that, in all the circumstances, displays sufficient characteristics, answering the criteria for intervention by the tort of negligence”?

 

Evaluation of the relationship between the holder of the power and the person or persons to whom it is said that a duty of care is owed will require examination of the degree and nature of control exercised over the risk of harm that has eventuated, the degree of vulnerability of those who depend on the proper exercise of the relevant power, and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. Other considerations may be relevant. (Citations omitted.)

 

[52] In applying this principle, it is difficult to think of a more vulnerable class of persons than children subjected to sexual abuse by parents or guardians. It is self-evident that the risk of harm to a child exposed to an abusive parent or guardian may be very high. Therefore the value of personal autonomy that is said to inform much of the common law of negligence (Stuart v Kirkland-Veenstra, at [88] (joint judgment); CAL No 14 Pty Ltd v Motor Accidents Insurance Board[2009] HCA 47 ; 260 ALR 606, at [38], [54], per Gummow, Heydon and Crennan JJ) does not militate against the existence of a duty of the kind relied on here. Nor would there seem to be any lack of coherence between the imposition of a duty of care on the State when notified of sexual abuse of a child and the statutory framework governing the welfare of children as in force in 1983: cf Sullivan v Moody [2001] HCA 59 ; 207 CLR 562, at 581-582 [55]-[60], per curiam; CAL No 14, at [39]-[42]. See also SB v New South Wales [2004] VSC 514 ; 13 VR 527, at 549ff [132]ff, per Redlich J (where the authorities are reviewed).

 

[53] If it can be accepted that the duty of care relied on by the applicants is maintainable as a matter of law (at least for the purposes of the summary dismissal applications), a pleaded allegation that the respondents breached the duty raises factual questions. Contrary to the respondents’ submissions, a pleaded allegation that the respondents breached the duty by failing to notify the Police of suspected or known sexual abuse cannot be said to be so obviously untenable that it cannot possibly succeed. It is not difficult to imagine circumstances where report of suspected or known sexual abuse to the Police is the only practicable means of protecting a child exposed to the abuse, for example where YACS knows that the child has been removed from a safe house by the abusing parent or guardian and cannot immediately be located.

 

[54] The applicants may or may not ultimately be able to make out a factual basis for establishing that the respondents breached the duty to take reasonable care for the safety of the applicants in the performance of their statutory obligations and the exercise of their statutory powers under s 148B of the CW Act. In particular, the applicants may or may not be able to make out a factual basis for their claim that the respondents breached the duty by failing to report the suspected or known sexual abuse to the Police at the earliest practicable opportunity. The matters identified by the primary Judge (at [64]-[65]) will no doubt need to be taken into account in determining whether the respondents departed from the standard of care reasonably to be expected of them. But the evidence before the primary Judge did not support a conclusion that the applicants’ case was doomed to fail on the facts. Indeed, her Honour did not draw any such conclusion. Until all the evidence is assessed and findings of primary fact made, it cannot be said that the applicants will be unable to make out the pleaded case that the respondents breached their duty of care by failing to notify the Police promptly of the stepfather’s suspected or admitted abuse.”

 

  1. In 1983 s 148B(1) of the Child Welfare Act empowered the Director of YACS to notify the Police [subs (5)] but did not compel such notification. However Steve Frost, Senior Community Welfare Officer at the Blacktown Office of YACS, said that it was practice to do so in 1983.

 

  1. So far as CQ is concerned, her counsel submitted that there is no reasonable basis to initiate a claim against her personally, as she was employed by YACS and as such YACS was vicariously liable for her actions. Section 158 of the Children Welfare Act reads:

 

“58(1) No suit or action shall lie against the Minister or any officer or employee of the Department of Youth and Community Services for or on account of any act, matter or thing done or commanded to be done by him, and purporting to be done for the purpose of carrying out the provisions of this Act, if the Minister or the officer or employee has acted in good faith and with reasonable care…”

 

  1. Counsel for CQ submitted that she cannot be liable for the commission of an offence. Senior counsel for the plaintiff submitted that while the Crown cannot be liable for the commission of an offence that does not preclude CQ from being personally liable although the case against the State of New South Wales is stronger.

 

Misprision of felony

 

  1. As was noted by the Court of Appeal in DC v State of New South Wales , the offence of misprision of felony was abolished in New South Wales by theCrimes (Public Justice) Amendment Act 1990. See now s 341 of the Crimes Act 1900 . However, the abolition was prospective only and did not apply in relation to offences committed before the commencement of the 1990 Act: see s 340 of the Crimes Act .

 

  1. The defendants made lengthy submissions in relation to misprision of felony. They submitted that the Criminal Law Act 1967 (UK) abolished the distinction between felonies and misdemeanours and, consequently, the common law offence of misprision of felony ceased to exist as an offence in English law: see A v Hayden [1984] HCA 67(1984) 156 CLR 532. They submitted that the High Court has indicated that there is some doubt as to whether the offence continued to be part of the common law of Australia even before its statutory abolition: see A v Hayden per Mason J and Petty & Maiden v R[1991] HCA 34(1991) 173 CLR 95 per Mason CJ, Deane, Toohey and McHugh JJ.

 

  1. The defendants submitted that the allegation that they, and in particular, CQ in a personal capacity, have committed a criminal offence by not reporting to the Police is a serious one. They submitted that there are serious ramifications to the pleading of such a charge in an originating process designed to achieve a civil result.

 

  1. The defendants further submitted that even if it was assumed that the offence of misprision of felony was still part of the common law of Australia in 1983 the following propositions are incontrovertible:

 

  • Both knowledge that a felony has been committed and concealment of that felony were essential elements of the offence: Sykes v Director of Public Prosecutions [1961] 3 All ER 33; silence about an offence on the part of a person liable to be suspected of its concealment cannot constitute misprision of felony: Petty & Maiden .

 

  • The offence assumes a “duty of law to disclose to proper authority all material facts known to the informant in relation to the felony”; the informant “can perform this duty by reporting to the Police or a Magistrate or anyone else in lawful authority”: Sykes at 42.

 

  • If the Crown cannot be liable for the commission of an offence an employee of the Crown could not be convicted of accessorial liability in the commission of the offence: Cain v Doyle [1946] HCA 38(1946) 72 CLR 409.

 

  1. The defendants submitted that, as the plaintiffs have pleaded that CQ prepared a report for the Children’s Court informing it of J’s admission of sexually interfering with them, this fact alone negates any suggestion of concealment of any criminal conduct on the part of CQ; secondly, that the Court itself was a “proper authority” to be informed of these matters cannot be gainsaid; and finally, very existence of s 136 of the Child Welfare Act , relating to the Court’s power to make orders in cases where it appears an offence has been committed against a child, confirms the incontrovertibility of that proposition.

 

  1. Senior counsel for the plaintiffs responded that the relevant lawful authority should be a prosecuting authority, not a court vested with jurisdiction in relation to child protection.

 

  1. While the defendants’ submissions on the topic of misprision of felony are arguable, it does not follow that the plaintiffs do not have a real case to advance. The defendants had the opportunity to argue that the plaintiffs’ claim in so far as it relates to misprision of felony was hopeless when the matter was argued before Mathews AJ and the Court of Appeal.

 

  1. As set out above, the commission of the common law offence was pleaded before Mathews AJ and before the Court of Appeal merely to “give content to the duty of care”. Furthermore counsel for the plaintiffs submitted in the Court of appeal that their claim was not confined to one based on criminal misconduct by CQ:

 

“[47] … the case as put to the primary Judge was not confined to the pleading in para 41 [in relation to an obligation at law to report the abuse]. It included the contention that, whether or not the respondents had an obligation as a matter of law to report the stepfather’s offences to the Police, it was a breach of their duty to exercise reasonable care for the safety of the applicants not to report the offences. Had that been done, the likelihood is that the applicants would have been spared further abuse by their stepfather. Once the case was put that way, it was a question of fact, to be resolved at a trial, as to whether the respondents had failed to exercise reasonable care for the safety of the applicants by neglecting to inform the Police of the allegations of sexual abuse. The primary Judge should not have summarily dismissed the proceedings and, to the extent necessary, should have given the applicants leave to amend their pleadings.”

 

  1. The Court of Appeal did not dismiss the claims against CQ personally. Nor did the Court of Appeal decide that the claim against CQ personally was untenable. I accept that the onus of the plaintiff to satisfy the test that the plaintiff has a real case to advance is of a higher threshold than the onus upon a plaintiff of a summary judgment application. It is nevertheless my view that the plaintiff has a real case to advance against CQ personally.

 

Whether it is just and reasonable to extend time

 

  1. The nature of the discretion conferred by s 31(2) of the Queensland Limitation of Actions Act 1974 was considered by the High Court in Brisbane South Regional Health Authority v Taylor [1996] HCA 25(1996) 186 CLR 541 . Section 31(2) is almost identical to s 58(2) of the New South Wales Limitation Act . In Taylor , Toohey and Gaudron JJ said at 550:

 

“The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent.”

 

  1. In Holt v Wynter [2000] NSWCA 143(2000) 49 NSWLR 128, Sheller JA summarised the decision in Taylor as follows:

 

“In my opinion, the effect of the decision of the High Court in Brisbane South Regional Health Authority is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant.”

 

  1. The ultimate test in any such application is whether a fair trial can be conducted not withstanding any delay. In weighing prejudice, its impact upon a fair trial is the primary focus: see Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 199.

 

  1. The defendants submitted that they will not be afforded a fair trial for the following reasons:

 

  • t he absence of necessary witnesses;

 

  • unexplained periods of delay by the plaintiffs in making a timely application;

 

  • the long period of time that has elapsed since the events complained of with the result that correctly ascertaining what happened in reliance on the memory of those witnesses who are available would be extremely difficult;

 

  • the unreliability of the plaintiffs’ evidence in seeking to recall specific incidents and events from childhood memories now clouded by a range of disparate emotions (including the reactions and emotions of others) and based on apparently tendentious advice not corroborated in any way;

 

  • the difficulty, after so many years, of separating and determining the real causes of the plaintiffs’ ongoing problems.

 

  1. The period of time when it is alleged the sexual abuse should have been reported to the Police was during 1983 and 1984, some 29 years ago. I accept with the passing of time memories will have faded and there will be presumptive prejudice (see, for example, Brisbane South Regional Health Authority v Taylor at 552-553 per McHugh J).

 

  1. However, the defendants have not specified what necessary witnesses are now unavailable. CQ, the case officer, is available to give evidence. On 20 January 2005, she made a statement in relation to the events that occurred in relation to TB and DC. There are conflicting statements as to whether TB and DC’s mother reported the assaults to the Police.

 

  1. The transcript of the proceedings in the Children’s Court shows that the Court understood DC and TB’s mother to have claimed to have informed the Police of J’s unlawful conduct. The exchange [TB’s Aff, 17/12/08, Annexure H] records the Magistrate saying “you say that you reported it [the abuse] to the police” to which the mother responds, “I only said interfered with”. This statement is ambiguous. At the hearing DC gave evidence that she knew her mother had not reported the abuse because her mother had told her she had not (T88-89). In any event, their mother is available to give evidence.

 

  1. As I understand it, J is still alive but is not well. His evidence would not be central to the dispute between the parties, as he did not deny that the abuse occurred and it is difficult to see how that issue could seriously be in dispute.

 

  1. The Children’s Court records relating to TB and DC are available. So far as the Children’s Court is concerned the following documents are in existence:

 

  • Typed record of interview on 22 April 1983 between CQ and DC;

 

  • Typed record of interview dated 28 April 1983 between CQ and DC’s mother;

 

  • Copy of charge sheet relating to attendance before Cobham Children’s Court on 2 May 1983, 9 May 1983, 20 June 1983 and 16 September 1983;

 

  • Copy of typed record of interview on 6 May 1983 between CQ and DC, TB and their mother;

 

  • Report of Cobham Children’s Court hearing on 20 June 1983 signed by CQ;

 

  • Report of Cobham Children’s Court hearing on 19 September 1983 signed by CQ;

 

  • Report for Court (partially illegible) dated 21 October 1983 signed by CQ;

 

  • Transcript of Argument, judgment and order of Police v [the mother] “neglected” referring to possible hearing date of 19 September 1983 (signed by Special Magistrate);

 

  • Report of Ian Skead, psychologist, addressed to the Special Magistrate, Cobham Children’s Court dated 24 October 1983;

 

  • Report (partially illegible) referred to “7/11/83 Hearing” signed by CQ and Ian Skead undated;

 

  • Report of CQ for Cobham Children’s Court dated 17 July 1984

 

  1. The following Police statements are also available:

 

  • Statement of DC and TB’s mother taken at Gosford Detectives Office dated 18 June 1985.

 

  • Statement of Ian Robert Skead dated 25 November 2004;

 

  • Statements of CQ dated 20 and 31 January 2005;

 

  • Statements of DC dated 26 August and 1 June 2002;

 

  • Statement of TB dated 30 August 2001;

 

  • Statement dated 28 August 2002.

 

  1. So far as the defendants’ submission that it is now difficult to determine the real causes of the plaintiff ongoing problems, there are records of psychologists and psychiatrists as to the plaintiffs’ medical conditions, the continued sexual abuse by their father when they were young and the profound affect on their lives.

 

  1. What is important is the evidence in relation to whether or not the matter was reported to the Police, if consideration was given by YACS or CQ to reporting the abuse to the Police and if any consideration was given, what was it.

 

  1. At the hearing, I asked whether the YACS files in relation to TB and DC had been located and the following exchange took place (T201-202):

 

“HER HONOUR: Can I ask both of you if the YACS file on the girls are in existence?

 

MORRISON: I cannot answer that but I don’t recall any complaint that it is not. There has been no affidavit saying that the file has gone missing.

 

 

HARVEY: The evidence of Mr Maxwell is that searching for a file upon which [CQ] had their notes he could not find. He could not obtain that…Whether it is the YACs file I cannot assist but in terms of the search that Mr Maxwell did, critically to notes that [CQ] …created that file has not surfaced.”

 

  1. Therefore it appears that the YACS files have not been located at this stage. On the other hand, as was argued by counsel for the plaintiffs, there is no evidence that they are no longer in existence. DC had attempted to obtain her DOCS records during the Police investigation of J. She gave evidence that she was told that they had a record of her on their system but that her file ” was sealed” (T86) .

 

  1. There is detailed evidence as to what the procedure at YACS in relation to these types of cases was in 1983. That evidence of Mr Frost can be summarised as follows (Aff 13/03/2009):

 

  • He was employed by DOCS and its predecessor, YACS, from about 1970 until his retirement in July 2006. In 1983, he was employed as a Senior Community Welfare Officer at the Blacktown office of YACS;

 

  • He gave evidence as to the respective responsibilities of managers and other staff at YACS;

 

  • He gave evidence covering case management, who implemented court action in respect of children and who would ‘sign off’ on reports prepared.

 

  • In the 1980s Mr Frost recalls that there were many notifications of child abuse and this included child sexual assault.

 

  1. In 1983, Mr Frost says that YACS was highly aware of the issue of child sexual assault and had an established process and procedure in relation to the notification and investigation of child abuse. He gave evidence as to what that procedure entailed.

 

  1. In relation to the notification of child abuse in 1983, Mr Frost gave evidence as to the procedure to be adopted.

 

  1. Mr Frost recalls that CQ was working at the Blacktown branch as a district officer in 1983 but he does not recall any specific cases she was involved in managing or which required his supervision.

 

  1. Steve Frost deposed that in about 1981 the NSW Police had established the Child Mistreatment Unit (Aff, 8/11/2010). He communicated with the officer in charge of that unit, Brian Rope, and other Police officers from time to time in relation to child abuse matters. He cannot recall any particular case that he discussed with any Police officer from that unit and had not retained or had access to any file of cases that might have been the subject of inter-agency or Police communications in the 1980s.

 

  1. In relation to bringing a matter before the Children’s Court, there was no requirement for child protection officers or district offers who were assigned with investigating a complaint or notification of child abuse, to confer with the Police before initiating Children’s Court action. Those officers had the authority to initiate that action in accordance with the Child Welfare Act and with approval and oversight by either the senior district officer or the assistant senior district officer. However, in a number of cases contact was made with the Police either directly by the investigating officers involved or through the Child Mistreatment Unit.

 

  1. Mr Frost says that it was common practice for a telephone call to be made by an investigating officer to the local Police station, or to the Child Mistreatment Unit. The YACS officer could also take the complainant to the Police to enable details of the complaint to be given to Police and for Police to take whatever action was considered appropriate at the time.

 

  1. Mr Frost has seen the statement of DC dated 1 June 2002 and says that in the context of the statement as a whole, the reference to a “DOCS officer” taking DC to the Police station at Blacktown and being told something about not charging J, was consistent with the accepted practice in 1983 of a YACS officer taking a complainant to the Police station and the Police explaining something to the complainant about the matter.

 

  1. Mr Frost says that without access to specific records, he is not able to recall or provide details of any specific occasion when he or any other officer who worked in the Blacktown office of YACS in the 1980s made a report to Police of an allegation of child abuse or escorted a child to the Police station to enable the Police to provide any assistance to the child or explain any aspect of the criminal process to the child.

 

  1. Thus Mr Frost will be able to give detailed evidence on YACS procedure in relation to child abuse, in 1983-1984.

 

  1. It is my view that the defendants will not suffer significant prejudice and I am satisfied that there will be a fair trial between the parties. The plaintiff has discharged her onus and I am satisfied that it is just and reasonable that an order be made that the limitation period be extended up to and including 2 May 2008.

 

  1. Costs are reserved.

 

The Court orders that:

 

(1) The limitation period in relation to the plaintiff’s proceedings is suspended by reason of the plaintiff’s disability from the day she turned 18 until the end of 2003.

 

(2) In the alternative, the plaintiff is granted an extension of time within which to commence proceedings against the defendants up to and including 2 May 2008.

 

(3) Costs are reserved.

 

*********

 

 

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