AB v State of Queensland

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DISTRICT COURT OF QUEENSLAND

CITATION: 

AB v State of Queensland & another [2021] QDC 171

PARTIES: 

AB

(Applicant)

v

STATE OF QUEENSLAND

(First Respondent)

AND

LIFE WITHOUT BARRIERS (ACN 101252171)

(Second Respondent)  

FILE NO:

585/21

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT: 

Brisbane District Court

DELIVERED ON:

22 July 2021

DELIVERED AT:

Brisbane

HEARING DATE: 

22 July 2021

JUDGE:

Porter QC DCJ

ORDERS:

1.   The Application is dismissed.

2.   The applicant pay the first and second respondents’ costs of the Application on the standard basis, including costs reserved by Rinaudo DCJ AM on 4 May 2021.

CATCHWORDS

LIMITATIONS OF ACTION - PERSONAL INJURIES - EXTENSION OF TIME - application for order pursuant to s. 31 Limitations of Actions Act 1974 that the period of limitation be extended - where the plaintiff applicant claims against the first and second defendants in negligence for personal injury and consequential loss - where the plaintiff applicant suffered nervous shock following the discovery of sexual and physical assaults allegedly suffered by her daughter and allegedly perpetrated by a young man who had been placed in the plaintiff applicant’s household pursuant to a foster parent scheme administered - whether the applicant can show that the material fact of a decisive nature relied upon was within her means of knowledge prior to the relevant date

CASES:

Ferrier v WorkCover Queensland [2019] QSC 11

NF v State of Queensland [2005] QCA 110

State of Queensland v Stevenson (2006) 226 CLR 197

Sugden v Crawford [1989] 1 Qd R 683

LEGISLATION:

Limitation of Actions Act 1974 (Qld), s. 31

Personal Injuries Proceedings Act 2002 (Qld), s. 43

Uniform Civil Procedure Rules 1999 (Qld), Rule 166

COUNSEL:

B. Dooley SC for the applicant

M. Zerner for the first respondent

G. O’Driscoll for the second respondent

SOLICITORS:

Shine Lawyers for the applicant

Crown Law for the first respondent

Colin Biggers & Paisley Lawyers for the second respondent

Introduction

  1. This is an application by the plaintiff in proceedings 585/21 that the period of limitation for her claim against the first and second defendants in these proceedings be extended to 16 March 2021, pursuant to s. 31 of the Limitation of Actions Act 1974 (Qld) (LAA). That date has been chosen evidently as being a date some days after the filing of her claim and statement of claim in these proceedings.

  2. The claim and statement of claim contain a claim against the first and second defendants in negligence for personal injury and consequential loss in the amount of the maximum monetary limit of this Court. The claim, broadly characterised, is one for nervous shock, following the discovery of sexual and physical assaults alleged in the proceedings to have been suffered by her daughter when very young (CD), allegedly perpetrated by a young man (XY) who, at the time, was about 17 and who had been placed in the household of the plaintiff applicant (AB) by the second respondent, Life Without Barriers, pursuant to a foster parent…

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Details
Case
[2021] QDC 171
Decision Date

CaseChat Overview and Summary

AB, the plaintiff, filed an application against the State of Queensland, the first defendant, and another party, the second defendant, seeking to extend the limitation period under the Limitations of Actions Act 1974 for claims of negligence and consequential loss arising from personal injury. The plaintiff's injury stemmed from discovering that her daughter had allegedly suffered sexual and physical assaults by a young man placed in their household through a foster care scheme. The plaintiff contended that two reports were material facts of a decisive nature that were unknown to her before the limitation period expired, justifying an extension of time.

The primary legal issue before the court was whether the plaintiff could demonstrate that the material facts of a decisive nature relied upon in her claims were not within her knowledge before the limitation period expired. This required the court to examine the contents of the two reports and determine if they constituted new information that was not previously known to the plaintiff. The court had to consider whether the plaintiff could have reasonably discovered the information contained in the reports before the limitation period ended, and whether this information was critical to her claims.

In determining the application, the court found that the plaintiff had not successfully demonstrated that the facts in the two reports were material and decisive in her claims. The court noted that the flaws in the decision-making process that led to the placement of the young man in the plaintiff's household were already evident from the information known to the plaintiff prior to receiving the reports. The court concluded that the plaintiff should have been able to plead these issues without the reports and that the failure to do so exposed her to the risk of the court finding that the extension of the limitation period was unjustified. Additionally, the court considered the Freedom of Information material, which further supported the view that the plaintiff could have reasonably known the critical information without needing the reports.

The court dismissed the plaintiff's application for an extension of time, holding that the plaintiff had not shown that the material facts of a decisive nature were unknown to her before the limitation period expired. The plaintiff was ordered to pay the respondents' costs of the application on the standard basis.

Orders

Orders of the court

1. The Application is dismissed.

2. The applicant pay the first and second respondents’ costs of the Application on the standard basis, including costs reserved by Rinaudo DCJ AM on 4 May 2021.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Reasonable minds can differ about these matters but, in my respectful view, on balance, the applicant has not persuaded me that the matters disclosed in the two reports were material facts of a decisive character. They would certainly have been helpful to litigation. But an insight into the case that could, in my respectful opinion, have been pleaded without the reports can be gleaned by looking at the words in which Ms Knox describes the defects in the decision. She says this:[16]The Decision: The decision to place [XY] with [AB] and her family was flawed from the outset. First, a young person with a history of sexualized behaviour was matched with a carer who expressed uncertainty about her own willingness to care for a young person with this particular characteristic. Second, the carer expressed concern about the vulnerable age of her daughter and declined placements involving ‘extremely challenging behaviour’. Third, the carer was not informed that [XY] might exhibit sexualized behaviour providing her with an opportunity to refuse to care for [XY] (Foster Carer Agreement). [16] See page 7 of the External Review by Sunnova Knox in the Affidavit of Charmaine Bastin, filed 22 June 2021. I suspect no one would disagree with those propositions given the apparent facts in this case. But they were prima facie evident from matters known to AB before receiving the reports in any event:(a)First, a young person with a history of sexualised behaviour was matched with a carer who expressed uncertainty about her own willingness to care for a young person with this particular characteristic: Given that AB knew of allegations of sexual misconduct against the boy’s own sister, such knowledge is, in my respectful submission, equivalent to, or not materially different from, knowing of a history of sexualised behaviour; (b)Second, the carer expressed concern about the vulnerable age of her daughter and declined placements involving extremely challenging behaviour: That was evident from the material that had been in place from the beginning and known to AB and her first solicitors; and(c)Third, the carer was not informed that XY might exhibit sexualised behaviour, providing her with an opportunity to refuse to care: If one replaced the words “might exhibit sexualised behaviour” with “might have sexually abused his sister in his past”, one can see exactly the same flaw identified. As I have said, reasonable minds can differ about these points, but ultimately, it seems to me that there was plainly a case that could have been pleaded and should have been pleaded, and not pleading it was to court the risk of having to persuade the Court, as Justice Helman said, that to not do so was justified. There is another matter I should deal with, that is, the FOI material. Now, both parties took me to the FOI material. Mr Dooley SC, who I say, with respect, argued the matter persuasively and with determination for the applicant, took me to various parts of the FOI documents that demonstrated that this understanding, of what might be said to be exactly how the procedures went wrong, was the nub of the case. He referred me, for example, to pages 11 of 22 of the FOI, where under the notation “assessment”, this comment was made:[17] Information from LWB is required to determine whether negligence has occurred and what practices have been implemented to ensure carers are advised of children’s behavioural history prior to agreeing with the placement of that child.[17] See page 32 of the Affidavit of Megan Kate Dudley, filed 19 July 2021.

Ratio Decidendi

Legal Principle Established

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