Damman v Peninsula Health
[2012] VSC 572
•23 November 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURY LIST
SCI 2010 06111
| DANIELLE ELIZABETH DAMMAN | Plaintiff |
| v | |
| PENINSULA HEALTH (ABN 52 892 860 159) | Defendant |
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JUDGE: | T FORREST J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 9 and 10 October 2012 | |
DATE OF JUDGMENT: | 23 November 2012 | |
CASE MAY BE CITED AS: | Damman v Peninsula Health | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 572 | |
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COMMON LAW – Application for an extension of limitation period – Section 27K of the Limitation of Actions Act 1958 – Allegations of sexual assault – Key witness deceased – Defendant suffered substantial prejudice – Plaintiff’s cause of action against former solicitors relevant consideration – Tsiadis v Patterson (2001) 4 VR 114 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Ingram Ms K. Gladman | Clark Toop & Taylor |
| For the Defendant | Mr J. Noonan Mr S. Gladman | Lander & Rogers Lawyers |
HIS HONOUR:
Background
On 27 March 2007, the plaintiff was admitted to the psychiatric unit at Frankston Hospital (‘the hospital’). The defendant is responsible for the conduct of the hospital. From 28 March 2007 the plaintiff was subject to an involuntary treatment order made pursuant to s 12AA of the Mental Health Act 1986 (Vic). At the time of her admission she was suffering from a borderline personality disorder and was considered to be at risk of self harm.
The plaintiff alleges that while at the hospital a male patient (AB) in the psychiatric unit sexually assaulted her on three separate occasions. She claims that the assaults occurred by reason of the defendant’s negligence in the detention and supervision of the plaintiff in a safe and secure environment. The plaintiff alleges that by reason of the defendant’s negligence she has suffered:
· injury in the form of aggravation of pre-existing psychiatric conditions and major depressive disorder;
· special damage (which is yet to be particularised); and
· loss of earnings and loss of earning capacity.
The defendant denies liability and alleges that any physical interaction between the plaintiff and AB was consensual and did not constitute an assault. Further, the defendant claims that the plaintiff is:
· statute barred by reason of the provisions of Part IIA of the Limitation of Actions Act 1958 (Vic) (‘the Limitation of Actions Act’); and
· precluded from claiming damages for non-economic loss by reason of the operation of s 28LE of the Wrongs Act 1958 (Vic) (‘the Wrongs Act’) as she has not suffered a ‘significant injury’ as defined by s 28LF of the Wrongs Act.
The proceedings
The plaintiff issued a generally endorsed writ on 11 November 2010. On 17 June 2011, the plaintiff filed a statement of claim.
By summons filed on 12 January 2012, the plaintiff seeks the following orders:
1.An order granting the plaintiff an extension of the date by which to bring proceedings to 1 November 2010, pursuant to s 27K of the Limitation of Actions Act.
2.An order striking out paragraphs 11 and 12 of the defendant’s amended defence.[1]
3.An order that the defendant pay the plaintiff’s costs of this application.
4.Such other orders as the Court deems appropriate.
[1]By order of Daly AsJ dated 29 May 2012, the plaintiff was given leave to amend this paragraph of her summons to refer to both paragraphs 11 and 12.
Paragraphs 11 and 12 of the defendant’s amended defence contain the defendant’s allegations that the plaintiff is precluded from claiming damages for non-economic loss by reason of the operation of s 28LE of the Wrongs Act as she has not suffered a ‘significant injury’ as defined by s 28LF. The plaintiff counters by asserting that as a result of s 28LC(2)(a), Part VBA of the Wrongs Act does not apply to her claim because the fault concerned is, or relates to, sexual assault (‘the Part VBA issue’).
The defendant further says that:
· a proper question within the meaning of Rule 47.04 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) has not yet been formulated for me to determine; and
· even if such a question could be formulated, it would not be appropriate for me to deal with that question prior to the trial,
(‘the Rule 47.04 issue’).
Application for extension of limitation period
By virtue of ss 27B(1) and 27D(1) of the Limitation of Actions Act, the plaintiff had three years within which to bring her action.[2] She failed to do so. She concedes that her claim against the defendant is currently statute barred and an order under s 27K of the Limitation of Actions Act is required for that claim to survive. Section 27K(2)(b) provides:
(2) Subject to section 27L, the court—
(b)may, if it decides that it is just and reasonable to do so, order the extension of the period of limitation applicable to the cause of action for such period as the court determines.
[2]This assumes that the plaintiff’s cause of action was discoverable from the date of the alleged assaults. This is not contested.
The plaintiff bears the onus of persuading the Court to adopt such a course.[3]
[3]Tsiadis v Patterson (2001) 4 VR 114, 123 [33] (Buchanan JA, with whom Ormiston and Callaway JJA agreed).
Section 27L of the Limitation of Actions Act provides:
(1)In exercising the powers conferred on it by section 27K, a court shall have regard to all the circumstances of the case, including (but not limited to) the following—
(a)the length of and reasons for the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c)the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)the duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability;
(e)the time within which the cause of action was discoverable;
(f)the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(g)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received.
(2)To avoid doubt, the circumstances referred to in subsection (1) include the following—
(a)whether the passage of time has prejudiced a fair trial of the claim; and
(b)the nature and extent of the plaintiff's loss; and
(c)the nature of the defendant's conduct.
Some further detail about the background to this application is necessary in order to properly understand the arguments put by counsel. It is convenient to set this out in table form.
Date Event 27 March 2007 Plaintiff admitted to the hospital
(as of 28 March 2007, she was subject to an involuntary treatment order).31 March 2007 Date of the first assault alleged by the plaintiff. 1 April 2007 Date of the second assault alleged by the plaintiff. 2 April 2007 Date of the third assault alleged by the plaintiff.
Plaintiff discharged from the hospital.May 2008 Plaintiff contacts the Mental Health Legal Centre in relation to the alleged assaults. July 2008 Plaintiff consults Guy & Hinton, solicitors, on suggestion of the Mental Health Legal Centre. 2008-2010 Plaintiff has several telephone consultations with Guy & Hinton, during which she enquires about the progress of her case, instructs Guy & Hinton to issue proceedings and receives advice that counsel would be briefed. 9 June 2009 Dr Michael Epstein, consultant psychiatrist, produces a report after consultation with the plaintiff at the request of Guy & Hinton,. Dr Epstein finds that the plaintiff’s psychiatric injury satisfies the threshold level for significant injury as defined by s 28LF of the Wrongs Act.
31 March 2010 –
2 April 2010Limitation period applicable to the plaintiff’s claim in relation to the alleged assaults expires. October 2010 Plaintiff’s final consultation with Guy & Hinton. Guy & Hinton advise the plaintiff that:
- the limitation period for bringing an action against the defendant has expired;
- they are no longer able to act for her .
8 November 2010 Plaintiff consults Clark Toop and Taylor, solicitors. 11 November 2010 Generally endorsed writ filed. 17 June 2011 Statement of claim filed. 8 August 2011 Writ served. 17 August 2011 Notice of appearance filed. 15 September 2011 Defence filed. 20 November 2011 AB dies. ‘Multidrug toxicity’ listed as cause of death. 12 January 2012 Summons in respect of the current application filed by the plaintiff. 31 January 2012 Medical Panel, after receiving a referral from the defendant, makes a determination in respect of plaintiff’s claim and finds that her psychiatric injury does not satisfy the threshold level for significant injury as defined by s 28LF of the Wrongs Act. 30 March 2012 Defendant delivers a proposed amended defence to the plaintiff’s solicitors.
The proposed amended defence includes the following defences:- the plaintiff consented to any sexual activity that occurred between AB and her, and thus AB’s conduct did not constitute assault;
- the plaintiff is precluded from claiming damages for non-economic loss because of the Medical Panel’s determination.
29 May 2012 Directions hearing before Associate Justice Daly.
Her Honour orders inter alia that:- the defendant have leave to file its proposed amended defence;
- the plaintiff have leave to amend her summons so that paragraph 2 reads: “An order striking out paragraphs 11 and 12 of the defendant’s amended defence”; and
- subject to any order of the trial judge, the plaintiff’s application by summons filed 5 January 2012 (as amended by the orders) be tried as a preliminary issue.
29 May 2012 Amended defence filed. 8 October 2012 Amended summons filed. The key events are set out in bold.
The plaintiff submits that the failure to issue proceedings against the defendant within the limitation period is not hers, but that of her previous solicitors. She further contends that even if proceedings were instituted in a timely way, there is a real chance that AB would have died before the trial and the defendant would have lost the opportunity to call him as a witness in any event. Further, the plaintiff states that the other relevant evidence, including her medical records, the Victoria Police file[4] and a tape-recorded interview with AB, are all still available to the defendant.
[4]Victoria Police investigated the plaintiff’s allegations and decided not to institute criminal proceedings against AB.
The defendant submits that the relevant period of delay is the time from when the cause of action accrued (in this case the date of the alleged assaults) and the time the application for an extension of time is made (in this case 12 January 2012). The defendant contends that, even if AB’s recorded interview is allowed into evidence at trial by way of the exception to the rule against hearsay contained in s 63 of the Evidence Act 2008 (Vic) (‘the Evidence Act’), it has lost the opportunity to call AB as a witness and ask him about the specific circumstances of the allegations made by the plaintiff. The defendant says that this will impact upon the weight the jury will ascribe to AB’s contention that all sexual conduct between himself and the plaintiff was consensual. This, so the defendant contends, amounts to significant prejudice.
The plaintiff’s statement of claim identifies three sexual assaults, all of which she alleges occurred by reason of the negligence of the defendant in the detention and supervision of her in a safe and secure environment. Thus the question of whether the plaintiff was in fact sexually assaulted is central to the cause of action.
I have listened to the tape recorded police interview conducted with AB on 12 June 2007. This is a short interview[5] in which AB admitted that he had sexual congress with the plaintiff but alleged it was consensual and, in fact, initiated by the plaintiff. AB said that he had been hospitalised for schizophrenia and depression. He maintained that the plaintiff had flirted with him and performed oral sex with him on the balcony at the hospital.[6] He said that later either that evening and/or the following evening they slept together and had consensual mutual oral sex and penile/vaginal sex. Questions 67 and 68 of that interview are reproduced below:
[5]22 minutes.
[6]Exhibit JAF B4 Q33.
Q. Mm’hm. How do you think she felt about it?
A.Well the way she was flirting with me and all that, I think she wanted to make love to me and if (s)he had said ‘stop’ while we were making love, I would’ve stopped.
Q. Ok. Tell me about the flirting, what was she doing with that?
A. Just the way she looked at me or she would kiss me and all this.
The interview is brief, essentially broad brush, and audio taped only (i.e. it was not videotaped). To my mind AB makes a relatively convincing denial of the rape allegations, but that denial is untested by rigorous interrogation.
The defendant’s contention that the relevant sexual conduct was consensual derives some support from a witness BK. She was also a patient at the hospital and shared a room with the plaintiff in April 2007. She said in her statement inter alia:
Danielle had a thing for [AB] and used to use me as a go between. I would let [AB] know when he could sneak in and be with Danielle. Danielle had been keen for something to happen. I know at one point she waited in a bathroom for over an hour for him to join her in there. Another time Danielle was going around asking who wanted a head job. Danielle told me that she was really horny.
…
One night I walked into my room to see Danielle and [AB] in bed having sex. Danielle was lying on her back and [AB] was kneeling above her between her legs… I said something like sorry to interrupt you guys…
I went into the bathroom for a little while to give them some privacy. After a while I came out and went and sat near [M] who was also in the room.
[M] and I ignored Danielle and [AB] and talked about other things. The sex seemed to be consensual. It seemed as though they were both trying to keep quiet while doing it. About 15 minutes later I heard [AB] leave the room. Danielle got up and went to the bathroom.
When she came out Danielle seemed quite quiet. She seemed a bit shocked. At the time I did not know that something bad had happened to her. Danielle told me that she wanted to talk to me later about what happened but we never got around to it.
Assuming BK gives evidence in accord with her statement she provides support for the defendant’s case that the plaintiff initiated and pursued consensual sex with AB. Her potential evidence only relates directly to one of the three alleged assaults, although no doubt the tribunal of fact would be invited to apply tendency reasoning to the other two allegations.
Other evidence that is relevant to the issue of consent may be summarised as follows:
(a)At about 11pm on 2 April 2007 the plaintiff complained to TK, a psychiatric nurse, that AB had forced her to have oral and penile/vaginal sex. Section 64(3) of the Evidence Act would operate to make this prior consistent statement admissible both as to the facts asserted within the representation and as to the maker’s credibility/consistency.
(b)A medical note made by a psychiatrist treating the plaintiff on 18 April 2007 reads as follows:
She indicated that the allegation of rape made against a co-patient several weeks ago and the reporting of the incident to the police was more to do with making all men from the past pay for what they had done, rather than referring to the one single incident. She agreed that the man involved may have been completely unaware of the past and have believed the act to be consensual. She also agreed that they could both be seen as victims of the same event.
Conclusions
When the Court is considering the exercise of the powers conferred by s 27K it is required to consider the non-exhaustive list of circumstances set out in s 27L. This list is set out in paragraph 10 of these reasons. Sub-paragraphs (c), (d) and (e) have no application to the present case.
Length of and reasons for delay (subparagraph (a))
Promptness of the plaintiff’s actions (subparagraph (f))
Steps taken by the plaintiff to obtain advice (subparagraph (g))
The delay is the time elapsed between the accrual of the cause of action (the accrual) and the making of the application for an extension of time.[7] The cause of action accrued in late March/early April 2007. This is not a case where the plaintiff discovered the cause of action at some later date. The limitation period expired in late March/early April 2010. A generally endorsed writ was filed on 11 November 2010 – 3 ½ years[8] after the accrual. A statement of claim was filed on 17 June 2011 – 4 ¼ years after the accrual. The writ was served on 8 August 2011 and a defence filed on 15 September 2011. In that defence the defendant pleaded that the claim was statute-barred. On 12 January 2012, 4¾ years after the accrual, the summons in respect of the current application for an extension of time was filed. Thus the length of the delay is a little over four years and nine months.
[7]Komorou v State of Victoria [1991] 2 VR 265; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7; Delai v Western District Health Service & anor [2009] VSC 151.
[8]For convenience I have rounded the years to the nearest quarter.
I accept that the fault for the delay lies largely with the plaintiff’s former solicitors Guy & Hinton. The plaintiff, in evidence, recounted a conversation she had with her former solicitor in which he apologised to her, admitted ‘we stuffed up’ and directed her to seek independent legal advice. I accept this evidence and find no fault on the plaintiff’s part. Further, I find that the plaintiff took reasonable steps to obtain advice. She consulted her solicitors within 15 months of the accrual, instructed them to issue proceedings, made follow up calls and attended upon a medico-legal psychiatrist Dr Epstein 2½ years after the accrual.
Prejudice to the defendant (subparagraph (b))
Section 27L(1)(b) requires the Court to consider the ‘extent to which having regard to the delay, there is or is likely to be prejudice to the defendant.’ The primary matter addressed by both parties is, of course, the death of AB. He died on 20 November 2011, 56½ months from the accrual, 20½ months from the expiry of the statutory limitation period and three months after the service of the writ.
I have concluded that the defendant has been significantly prejudiced by the delay that I have identified. Whilst there is some evidence that supports the defendant’s assertion that there was no assault and that the plaintiff consented to AB’s conduct, the fact remains that only one of the two participants survives and the other died nearly 21 months after the expiry of the statutory limitation period. If this matter proceeded to trial I consider that the absence of AB actually prejudices or is likely to prejudice the defendant in the following ways:
· The plaintiff will have the advantage of being seen and heard by the tribunal of fact, whether it be judge or jury, whereas the defendant’s witness AB will be heard only and then in the short audio police interview.[9] This differential is not to be underestimated, especially in the context of a civil trial where the standard of proof is the balance of probabilities, perhaps with a Briginshaw[10] gloss. To my limited observation, the plaintiff presents as an intelligent, articulate witness[11] whose evidence will be on oath and tested. AB’s evidence will not be on oath, has not been and will not be tested in any meaningful way, and the tribunal will not have the advantage of assessing his demeanour. The plaintiff argued that the death of AB is in fact an advantage to the defendant as his broad brush denial now cannot be tested by the plaintiff in cross-examination. Whilst it is correct that AB’s evidence cannot be tested, whether or not that would amount to a forensic advantage to the defendant is entirely speculative. In a different context the courts have long recognised the advantage a tribunal of fact enjoys when able to see and hear a witness. Appellate courts considering ‘unsafe verdict’ submissions in criminal and civil appeals almost invariably refer to the advantage enjoyed by a jury in ‘observing the demeanour of the witnesses who gave evidence before them in estimating the weight of the evidence.’[12] In Middleton v The Melbourne Tramway and Omnibus Co Ltd ‘the question largely turned upon the credence which the jury would give to this witness or that on the score of reliability… There was ample cross-examination, and the jury had the fullest opportunity of arriving at a just selection of the evidence upon which it was safe to place reliance. That is an opportunity denied alike to the learned Judges of the Supreme Court and to ourselves.’[13] In this case the tribunal of fact can never have a full opportunity to hear from AB and I regard this as a substantial prejudice in defending the allegations of assault.
· It can be anticipated that the plaintiff’s evidence will contain a considerable degree of detail about each of the alleged assaults. I have viewed a transcript of the plaintiff’s allegations relating to the three assaults.[14] These allegations were made in a VATE interview with police conducted on 4 June 2007 and which occupied approximately one hour. The plaintiff describes the alleged assaults and surrounding circumstances in considerable detail. An example of this is the first allegation of oral sexual assault. In the VATE tape the plaintiff stated that earlier that day AB followed her, kissed her, she walked away, he followed her again, grabbed her hand, touched her breasts and touched her vagina outside her clothes. She maintained that later he grabbed her hand, led her out of sight of the CCTV, pushed her head towards his erect penis and said ‘suck it’. None of this detailed activity was ever put to AB in his police interview conducted two months after the VATE interview. It is reasonable to assume that the plaintiff’s evidence will at least resemble the account she gave to police. The death of AB has denied the defendant the opportunity to seek instructions about this detail or to put a contrary account in respect of it: the defendant is left with a broad brush assertion of consent.
[9]I have presumed that the police interview will be admitted at trial as an exception to the hearsay rule under s 62 of the Evidence Act 2008.
[10](1938) 60 CLR 336.
[11]The plaintiff gave evidence and was cross-examined on this application. This evidence was confined to her dealings with her former solicitors.
[12]Kanja v Dynamic Engineering Construction Co Pty Ltd [2007] VSCA 307, [63].
[13](1913) 16 CLR 572, 579.
[14]Exhibit JAF-B-6 to the affidavit of Jane Amelia Fiske sworn 5 October 2006.
As I have observed the plaintiff contends that had the claim been issued within time there is a high likelihood that AB would have died before trial and thus there is little or no prejudice. The defendant sought to answer this by submitting that the extent of the actual or likely prejudice must be measured as of now and “need not be caused by the delay complained of, but need only to have come about by reason of the lapse of time involved in the period of delay.”[15] Thus, so the submission went, there is no need to conduct speculative exercises directed at whether AB would have survived had the plaintiff issued in time. AB is deceased and the prejudice is to be measured at today’s date. Alternatively the defendant submits that the plaintiff, who bears the onus of proof, has simply failed to make good the proposition that AB would not have survived to provide evidence at a timely trial of the action.
[15]Delai v Western District Health Service & Anor [2009] VSC 151, [23] (Beach J); Lord v Australian Safeway Store Pty Ltd [1996] 1 VR 614, 622-623.
I consider there is force in this latter submission. AB died nearly 20 months after the expiry of the limitation period. The plaintiff, who bears the onus of proof on this application, has placed no evidence before me to suggest that it would have taken longer than that period for the matter to reach trial. Various assertions were made from the bar table, but that is all that they were and it is certainly not a matter about which I can take judicial notice.
Prejudice to the plaintiff
Cause of action against the solicitor
It is true that an action against her former solicitor will be more complex and expensive than one against the original tortfeasor, however in the circumstances of this case the negligence of the solicitor appears reasonably clear-cut.[16] It is also true that the measure of damages against the solicitor will be for loss of the chance to recover from the original tortfeasor. Whilst there has been some divergence of opinion[17] as to whether this is a relevant factor in this type of application I consider that it must have some impact upon whether it is ‘just and reasonable’ to extend the limitation period. If the prejudice to the plaintiff is ameliorated by the likely success of an action against her solicitor then the harshness of a refusal to grant the extension is similarly ameliorated. In the circumstances of this case this is not a determining factor by any means and the weight given to it must be moderated because I have heard only the plaintiff’s account of the terms of the engagement with her solicitor. It is, however, a factor that deserves some weight in the overall synthesis.
[16]Although I have not heard the solicitor’s account, the objective facts of his engagement and his activity and lack of activity after that engagement, in my view, make for a clear case of negligence.
[17]Tsiadis v Patterson (2001) 4 VR 114, 121-122 [26]-[27] (Buchanan JA, with whom Ormiston and Callaway JJA agreed); Delai v Western District Health Service & Anor [2009] VSC 151, [26]-[28] (Beach J) and the cases cited therein.
For the reasons I have set out I regard the actual and likely prejudice to the defendant as high and incurable. I accept that the plaintiff has acted reasonably at all times and that her claim became statute barred through the fault of her former solicitor alone. I consider it likely that she will have an action available against him. These sorts of matters cannot be weighed against each other as they are not comparators. In another context, Scalia J said that a similar process was “like judging whether a particular line is longer than a particular rock is heavy.”[18] Buchanan JA described the process required under the similarly worded s 23A in the following way:
[T]he court must synthesise a number of competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that the respondent bears the onus of persuading the court that it is just and reasonable to extend the limitation period.[19]
[18]Bendix Autolite Corp v Midwesco Enterprises In (1988) 486 U.S. 888, 897.
[19]Tsiadis v Patterson (2001) 4 VR 114, 123 [33] (Buchanan JA, with whom Ormiston and Callaway JJA agreed).
In the present case I am not persuaded that it would be just and reasonable to extend the limitation period and I refuse the application.
The Part VBA issue and the Rule 47.04 issue
It follows that the plaintiff’s claim is statute barred and it is not necessary for me to consider the Part VBA issue or the Rule 47.04 issue.
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