Glennie v Glennie

[2009] NSWSC 154

CITATION:	Glennie v Glennie [2009] NSWSC 154
HEARING DATE(S):	11/3/09
JUDGMENT DATE :	19 March 2009
JURISDICTION:	Common Law Division
JUDGMENT OF:	Kirby J
DECISION:	(1) I order, by consent, that the issue whether or not the plaintiff's action was statute barred be determined as a separate issue in advance of the action. (2) I make a declaration that, by reason of the plaintiff's disability, the limitation period is suspended from running until 14 November 2006. (3) The costs on the motion should be the plaintiff's costs in the cause.
CATCHWORDS:	Civil Law - limitation of action - action against father for sexual assault - and against doctor for failure to report - limitation period - whether personal injury - disability - whether limitation period suspended.
LEGISLATION CITED:	Limitation Act 1969 Child Welfare Act 1939 Children (Care and Protection) Act 1987 Compensation to Relatives Act 1897 (NSW) Law Reform (Miscellaneous Provisions) Act 1944 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Kotulski v Attard [1981] 1 NSWLR 115 The State of New South Wales v Bennie [2005] NSWCA 172 State of New South Wales v Harlum [2007] NSWCA 120
PARTIES:	Cassandra GLENNIE (Pl) Norman Steward GLENNIE (1st Def) Stephen MAMCZUK (2nd Def)
FILE NUMBER(S):	SC 2008/20096
COUNSEL:	S Longhurst (Pl/App) K Burke (2nd Def/Resp)
SOLICITORS:	Nikolovski Lawyers (Pl/App) TressCox Lawyers (2nd Def/Resp)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JUSTICE KIRBY

Thursday 19 March 2009

2008/20096 Cassandra GLENNIE v Norman Stewart GLENNIE and Stephen MAMCZUK

JUDGMENT

1 KIRBY J: On 26 March 2008, a statement of claim was issued on behalf of Cassandra Glennie (the plaintiff) against her father, Norman Steward Glennie (first defendant) and uncle, Stephen Mamczuk (second defendant) claiming damages. She alleged that her father had sexually assaulted her when she was a child. She also said that her uncle, a medical practitioner, had been negligent and in breach of his statutory duty in, amongst other things, failing to report the sexual assaults to the police and/or the Department of Youth and Community Services (“DOCS”).

2 As I will shortly describe, the plaintiff’s father has since been prosecuted and is now in gaol. On 16 June 2008, the second defendant filed a defence which included a paragraph in these terms:

“[6] The alleged cause of action did not arise within 3 years before the commencement of this action and is barred by s 18A of the Limitation Act 1969.”

3 On 15 September 2008, the solicitors for the plaintiff issued a notice of motion in which they sought a declaration that, by reason of disability, the limitation period was suspended from running until November 2006. The plaintiff and second defendant have agreed to deal with the issue arising under s 52 of the Limitation Act 1969 as a separate issue. The matter was argued on 11 March 2009. There was no appearance for the first defendant.

The sexual assault.

4 The circumstances in which Cassandra Glennie was sexually assaulted by her father are not in doubt. Indeed, the defence filed by the first defendant acknowledged such assaults (at least during the period March 1987 to March 1991).

5 The plaintiff was born in April 1980. She is the youngest child in a family of four children. She has two older sisters and an older brother. The first defendant was not the father of her older sisters.

6 Her first recollection of sexual abuse was when she was four years old. It occurred shortly before she began school in 1985. The abuse followed a pattern which was to be repeated many times in the years that followed. In her statement to the police in November 2003, the plaintiff described her father’s actions in these words:

“[7] ... I recall that Dad came outside and gave M.. five (5) dollars. He told M.. to go and get some lollies. After M.. left, Dad told me to ‘Come inside’ and we went into the lounge room. When we were in the lounge room Dad told me to ‘Lay on the floor’. He would lay out his handkerchief on the floor and I laid face down on top of the handkerchief. The handkerchief was positioned so that when I lay down it was under my lower body, from my waist down to just below my hips.
[8] After I was in position, Dad spat between my legs. He would lie over the top of me and I felt his penis rubbing between my legs up against my vagina. His penis did not penetrate my vagina. He continued to do this for about five minutes. It was only a short amount of time. He continued until we heard M.. coming home. He got up and whipped himself off.”

7 Once they were alone in the house, the plaintiff would be directed by her father to “take off (her) undies”. The abuse would then begin in the manner described. The plaintiff recalled seeing wet patches on the handkerchief her father placed below her hips. She was abused several times a week and sometimes daily. She regarded school as a refuge and would delay coming home. Once she was at home she would seek to avoid her father (Dr Brown: p 6).

8 The plaintiff remembered a specific event at Easter 1987. She was then seven years old. She told her sister, C.. , what her father had done. Her statement included these words:

“[16] ... I recall that there was a big scene. C.. and I were told to stay in our bedroom together. I recall that my Uncle Steve (MAMCZUK) came over and spoke to Dad. I was not present during this. I recall that Mum came into the bedroom. She put her arm around me and said, ‘Why didn’t you tell me’, and that ‘It wasn’t my fault’. After this night Dad stopped, for about one year.”

9 The plaintiff recounted to Dr Brown (retained by the second defendant) the following elaboration concerning the visit by her uncle: (Dr Brown: p 5)

“ ... Ms Glennie also recalled her uncle telling her that the abuse would not continue but to make sure there was always someone with her in the home setting. Although she understands that her uncle was supposed to counsel her father about what had occurred, Ms Glennie said that she remembered him only attending the home on around three occasions, generally late in the evening after he finished work.”

10 The plaintiff asserted to Dr Pickering (Report 28.3.07: p 3) that the second defendant acted as the family medical practitioner, writing prescriptions when they were needed and performing similar tasks.

11 The plaintiff could not remember the specific details of each act of abuse. There was a routine, so that one act was much like another. She would go into a sort of trance. She told Dr Brown how she stared at the piano legs and felt emotionally disconnected (Dr Brown: p 6). She remembered one occasion, however, in 1989, when she was in fourth class. She was nine years old. Her mother was about to go shopping with her two sisters. She desperately wanted to go, as she did not like staying home alone with her father. Her mother, however, refused to take her, even though she became hysterical, crying and screaming. The plaintiff described what happened once her mother had left:

“[18] As soon as they left, I was told to go into the lounge room. I was told to remove my pants and lay down on the floor. Dad laid over me and began to rub his penis between my legs and against my vagina. I was crying while he was doing this. I think it was on this occasion that Dad was pushing a bit hard and his penis pushed against my bottom. I felt immediate pain and I screamed. I slid forward and got up onto my side. Dad immediately stopped. He gave me a cuddle and apologised. I recall that it stopped again for a short time. I also recall telling Dad not to do that (push it against my bottom) again. After a while the abuse began again. It would occur about once a fortnight to once a month. It was nowhere near as frequent as when it first started.”

12 The abuse continued until 1991, by which time the plaintiff was 11 years old. The house had an outside laundry. She got home from school one day and went to the laundry. Her father came into the laundry after her. Ms Glennie described what then happened:

“[20] ... He pushed me up against the sink. He had pulled his pants down and pulled my skirt up. This was unusual as this was the first time that it occurred differently to the other occasions. I was facing the window and Dad was behind me. I was crying. Dad had just started to rub his penis against my vagina when I saw C.. standing at the screen door looking out. She opened the screen door and ran down to the laundry. By the time that she opened the door we were pulling our pants up.”

13 The plaintiff’s sister grabbed her. She told the plaintiff’s father that she was going to call the police and tell their mother. Her father then rang his wife at work. He asked her to come home and was heard to say: “Because I’ve been mucking around with Cassy again”.

14 The plaintiff’s mother came home and there was a fight between her parents. Her mother called her brother, the second defendant, who again came to their home. Both her uncle and mother told her to try not to be alone with her father again.

15 Her father never again sexually abused her.

The consequences for the plaintiff.

16 During the period of abuse and after, Ms Glennie found it difficult to concentrate at school. Her behaviour deteriorated once she went to High School. She began to associate with an older group. She smoked cigarettes and soon became addicted. By the age of 12 she was regularly using alcohol and cannabis. She began to truant. Unsurprisingly, her school results were poor. She was repeatedly suspended and ultimately expelled. Dr Pickering recorded the following history, providing her reasons for such behaviour: (p 3/4)

“ ... if she was not under the influence of some substance, she felt stressed and agitated, and more importantly she could not stop herself thinking about the abuse. Attempts to block these thoughts therefore became the central theme of her (existence) through this period of time. Indeed, Ms Glennie stated that through her life she has been trying to feel ‘normal’ and to do so she needed either to be under the influence of some substance or to have something that was strongly distracting.”

17 Having left school, Ms Glennie began part time work in a veterinary clinic. She had had, by that time, a number of sexual partners, usually much older. One partner introduced her to heroin. She then lost her job because of drug use. Her boyfriend was arrested for armed robbery and imprisoned. She was, by that time, injecting heroin. By the age of 18 she began working as a prostitute. She also resorted to crime, in association with other prostitutes. She was charged with robbery in company after snatching a bag, and also for stealing a motor vehicle and the possession of a prohibited drug. She was placed on probation for 12 months and required to undergo counselling at the Juvenile Justice Centre in Blacktown.

18 Her drug taking reached the point where her family intervened, apparently on the initiative of her sister who contacted her uncle. In mid September 1999, her uncle arranged for her to enter a 24 hour detox programme with The Poplars Hospital at North Epping. Upon discharge, she was provided with various medications, including Naltrexone, which she took for seven months. The treatment was ultimately successful, although she replaced her addiction to heroin with heavy alcohol consumption and cannabis. She gave the following history to Dr Lisa Brown: (p 7)

“Ms Glennie said that ... she used both of these substances for their calming effect and also because it distracted her from thinking about her past experiences of abuse.”

19 During the period that she was taking Naltrexone, Ms Glennie lived with her parents on the south coast She felt uncomfortable in doing so, but had no choice. She was destitute. During 1999 to 2001 she occasionally worked, mainly as a cleaner. She described herself as having many brief sexual encounters, “one night stands”, and as a result of one she became pregnant. Her daughter, Jessica, was born in July 2001.

20 By the time of Jessica’s birth, Ms Glennie had met her boyfriend, Glenn. Glenn urged her to move out of her parents’ home. At about this time, she had the following realisation, which she described to Dr Lisa Brown: (p 8)

“When her daughter was around three months of age, Ms Glennie said that she experienced the realisation when looking at her father holding the baby that there were possible risks to her daughter of being sexually abused by her father.”

21 Ms Glennie disclosed these concerns to an early childhood nurse, who contacted DOCS. Soon thereafter, Ms Glennie moved out of her parents’ home, as her boyfriend had been urging. She was able to satisfy DOCS that the child was not at risk. She did not see her father.

22 Ms Glennie’s boyfriend also urged her to report her father’s sexual abuse to the police. Her sisters had also been abused. She therefore sought their support. The older sister was said to be too fragile to provide such support. The other sister aligned herself with her mother.

23 On 5 June 2003, Ms Glennie did report the matter to the police. She described how she was passing a police station and made a “spur of the moment decision” (Dr Brown: p 11). She felt that if she did not do it immediately, she would avoid it, possibly indefinitely. Over the months that followed, she saw the police a number of times. On 17 November 2003, she signed a statement that formed the basis of the prosecution of her father on two counts of indecent assault of a person under the age of 16 years under his authority. At first her father pleaded not guilty and was committed for trial.

24 Nothing then happened for a time. On 21 October 2004 and again on 18 November 2004, Ms Glennie saw Dr Kym Nicholson, a psychologist, because of particular difficulties she was then experiencing.

25 However, in November 2006, her father changed his plea. He did so once Ms Glennie’s sister provided a statement corroborating her claims. He then pleaded guilty. Ms Glennie, in her affidavit, described her reaction to that plea in these terms:

“[29] On the 14 November 2006 I attended the District Court at Nowra. On that day in the court I was sitting close to the prosecution. There was great formality in the court with the legal personnel wearing legal robes and wigs.
[30] I was present in the court when the charges were read to my father by the Clerk. He was then asked how he pleaded. I heard my father say the words ‘guilty’ and I felt an enormous sensation of relief sweep through me.
[31] After he spoke those words I started to shake uncontrollably, so much so that the prosecution sitting near me noticed what was happening to me and asked if I was feeling alright.
[32] I felt an enormous feeling of relief and empowerment at this outcome of the proceedings.
[33] I felt that I would be able to do something about my life. I had been told by the DPP at about the time that my father pleaded guilty that I could have some civil remedies for myself.”

26 Ms Glennie did not then waste time. On 27 November 2006, she saw a lawyer at Kells The Lawyers, but was informed that they did not handle such matters. On 7 January 2007, she consulted the solicitors who presently represent her, Nikolovski Lawyers, who then arranged for a medico-legal consultation with Dr Pickering on 28 March 2007. At the same time, she took steps to see a psychologist, Helen Rutland, in Nowra. In March 2007, she lodged an application for Victim’s Compensation. Arrangements were made, in connection with that application, for her to see a clinical psychologist, Dr Steven Dragutinovich on 16 August 2007. The Victims’ Compensation Tribunal thereafter approved counselling. From the beginning of September 2007, Ms Glennie saw a psychologist, Ms Irene Pantsos. Ms Pantsos referred her for treatment to Dr Gordon Davies, a psychiatrist.

Medical diagnosis.

27 A number of medical reports were tendered. Dr Pickering, qualified on behalf of the plaintiff, described Ms Glennie’s symptoms in these terms:

“Ms Glennie has had significant difficulties coping with all aspects of life subsequent to sexual abuse from the ages of four to eleven.”

28 Dr Pickering added:

“All through her life she has been plagued by intrusive distressing recollections of the abuse which she tries to control by avoidance, using either distraction or substances to get her mind off what took place. She cannot modulate her emotions, and is not only easily annoyed, but has frequent angry outbursts. There are also difficulties modulating attention either being inattentive or losing herself in something that will take her mind off the abuse. There are major issues with trust, difficulties forming close relationships, sexual promiscuity yet inability to enjoy sex normally, hyper vigilance, sleep disturbance, and there is a significant amnesia for most of what happened through her childhood. She has been unable to form stable relationships and for some of her life seems to have re-enmeshed with her family, quickly (falling) into a pattern of becoming dependent on her dysfunctional mother. Once she began the process of taking the issue of abuse to the authorities, it developed a life of its own, but without being pushed, she does not believe that she could have initiated going to the police about her father or following it through, nor indeed undertaking the civil action with yourselves.”

29 Dr Pickering believed that Ms Glennie was suffering from a range of psychiatric disorders. She satisfied, in his view, the criteria for Borderline Personality Disorder, by reason of the following: (p 9)

“1. A pattern of unstable and intense interpersonal relationships. There have only been two such relationships but they have had those characteristics.
2. Identity disturbance – there is a marked and persistent unstable image, with a very unstable ambivalent sense of self.
3. Impulsivity in at least two areas – in this case, she has had absolutely no concept of saving in the past, she has been irresponsible with her sexual behaviour, she has engaged in substance abuse, and she has driven recklessly. This does not include suicidal or self-mutilating behaviours.
4. Emotional instability, including intense irritability and anxiety.
5. Chronic feelings of emptiness.
6. Inability to modulate intense emotions particularly anger and difficulty controlling anger as manifested by frequent displays of temper.”

30 There was a possible alternative diagnosis, overlapping with Borderline Personality Disorder, namely Complex Post-Traumatic Stress Disorder. Dr Pickering said this: (p 9)

“ ... The issue is not which of these disorders exists, but rather that there is a disorder that exists that pervades her entire life – it is rather an academic issue as to whether one prefers to conceptualise it as a Personality Disorder or to conceptualise it as a disorder of extreme repeated stress in childhood.”

31 Dr Pickering also believed that Ms Glennie satisfied the diagnostic criteria for Post Traumatic Stress Disorder (“PTSD”) as well as Mixed Substance Dependence. There was no doubt that the cause of these disorders was the abuse she had suffered as a child. He said this: (p 11)

“... Her father’s role therefore is one in which she would have been unlikely to have had significant psychiatric problems were it not for the sexual abuse.”

32 Dr Dragutinovich made an assessment of Ms Glennie in August 2007 in the context of a claim to the Victims’ Compensation Tribunal. He diagnosed Polysubstance Abuse Disorder (in partial remission), Chronic PTSD as well as Chronic Major Depression. He said Ms Glennie’s anger was almost palpable. Implicitly, he related each of these conditions to her abuse as a child.

33 Dr Gordon Davies, psychiatrist, began treating Ms Glennie in August 2008, and saw her monthly thereafter. He diagnosed Major Depression, as well as Substance Abuse.

34 Dr Lisa Brown, psychiatrist, qualified by the defendant, saw Ms Glennie on 20 January 2009. She diagnosed Borderline Personality Disorder and Polysubstance Abuse Disorder, each caused by her father’s sexual abuse. She thought there had been a significant contribution by her mother, mainly through neglect. She did not believe, however, that Ms Glennie satisfied the criteria to diagnose PTSD, nor a major depressive disorder. Dealing with causation, she said this: (p 21)

“ ... Although experiences of abuse including of a physical, sexual and emotional abuse do not invariably lead to an outcome of this type Ms Glennie’s Substance Abuse Disorder has been considered more likely than not (to) have arisen as a result of her combined exposure to abusive experiences during her childhood. Whilst Borderline Personality Disorder is a condition which may arise without a familial background of abuse or neglect it is a not uncommon outcome in those who have been subjected to traumatic experiences during their childhood and teenage years.”

35 Addressing the issue of causation in relation to the second defendant, and specifically the relevance of his alleged failure to report the abuse to DOCS, Dr Brown said this: (p 22)

“ ... Although it is not possible to know whether the intervention of DOCS following the first period of abuse would have necessarily prevented the second period abuse, had it done so it would have potentially contributed to a less severe overall psychological outcome.”

The Limitation Act.

36 What are the relevant dates which, absent disability, suggest that the plaintiff’s action is Statute barred? The plaintiff was born in April 1980. She attained her majority in April 1998. The statement of claim was issued on 26 March 2008.

37 What are the relevant limitation periods? The statement of claim is an unusual document. It is not easy to discern the precise causes of action relied upon. It asserts that the first defendant (her father) sexually assaulted her during the period 1 March 1987 to 1 March 1991 (which the first defendant admits by his defence). It also annexes a police statement which describes assaults over a somewhat longer period. The causes of action alleged against the first defendant appear to be in tort (namely, assault), although confusingly, in paragraph [12], it is also suggested that they were occasioned by negligence. The cause of action against the second defendant, on the other hand, appears to be in negligence and breach of statutory duty, namely, a failure to report as required by s 148B(3) of the Child Welfare Act 1939. The Child Welfare Act continued operation until 18 January 1988, when it was replaced by the Children (Care and Protection) Act 1987.

38 Both parties approached the matter upon the basis that the causes of action were in tort and were subject to a six year limitation period (s 14(1)(b) Limitation Act). However, the Act includes the following provisions which rather suggest that, at least so far as the second defendant is concerned (he being the party who raised the limitation issue) a three year limitation period applies. Section 18A makes the following provision, which is subject to three exceptions, which are not material:

“ s18A Personal injury
(1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to: ...
(2) An action on a cause of action to which this section applies is not maintainable if brought after the expiration of a limitation period of 3 years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims.”

39 The definition section, s 11(1), includes the following definitions:

s11 Definitions
(1) In this Act, unless the context or subject matter otherwise indicates or requires: ...
Breach of Duty , when used in relation to a cause of action for damages for personal injury, extends to the breach of any duty (whether arising by statute, contract or otherwise) and includes trespass to the person. ...
Personal injury includes any disease and any impairment of the physical or mental condition of a person.”

40 The Limitation Act recognises that a person may suffer from a disability which interferes with the timely commencement of an action. The Act therefore makes the following provision:

"s52 Disability
(1) ... 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 limitation period is extended so as to expire three years after the earlier of those dates."

41 The definition section includes the following definition of "disability":

" s11(3) For the purposes of this Act a person is under a disability:
(a) ...
(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, ..."

42 In Kotulski v Attard [1981] 1 NSWLR 115, the plaintiff claimed damages under the Compensation to Relatives Act 1897 (NSW), by reason of the death of her husband and under the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) for mental and nervous shock. The plaintiff’s husband had died when struck by a motor vehicle. In that context, Slattery J said this: (at 117-118)

“s 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.”

43 In that case the plaintiff had, in the period between the date of the accident and the filing of the statement of claim, given instructions to her solicitor at the Coronial Inquest into her husband’s death, brought a Worker’s Compensation claim and attended to aspects of the deceased’s estate. She had also communicated with her solicitors in respect of likely common law proceedings arising from her husband’s death. At the same time, she had been receiving psychiatric treatment having been diagnosed as suffering from a depressive state with some hysterical features. A psychiatrist gave evidence that her psychiatric condition was affecting her volition and judgment. Her solicitor also gave evidence that, on occasions when he dealt with her, she was upset and would cry and did not appear to understand the nature of civil proceedings.

44 Slattery J, in these circumstances, found that notwithstanding the capacity of the plaintiff to carry out the various activities described, her depressive state, as described by her solicitor and psychiatrist, “impaired her volition and judgment”. His Honour concluded as follows: (at 122)

“As I have previously mentioned, it is relevant to consider how a reasonable person would conduct herself in the management of her affairs, including a cause of action for compensation. The evidence has satisfied me that by reason of her mental state during this period she was substantially impaired in the management of her affairs and especially in relation to the cause of action sued upon.”

45 The principles as stated by Slattery J have been accepted in The State of New South Wales v Bennie [2005] NSWCA 172 (Campbell AJA, Giles and Bryson JJA agreeing) and by Beazley and Tobias JJA in State of New South Wales v Harlum [2007] NSWCA 120 ([62]-[68]) (cf Basten JA [138], [139]) and other cases.

46 Before going to the evidence in this matter, let me state in broad terms the opposing contentions of each party. The plaintiff asserted that she was disabled, in the sense defined, until 14 November 2006. She then heard her father plead guilty to the charges laid against him as a result of her complaints. She felt an enormous sense of relief and with it empowerment. She then felt able to consult lawyers and pursue her action. The statement of claim was issued thereafter in less than three years, so that whatever the limitation period, it was issued within time.

47 The defendant answered these assertions by acknowledging that, at least for a period, it would be reasonable to regard Ms Glennie as “disabled”. However, the period of disablement ended once she consulted health professionals and disclosed to them and to the police her history of sexual abuse and its consequences. On the evidence, she demonstrated capacity and was not disabled from 2003/2004.

48 Let me go to the evidence.

Was the plaintiff disabled?

49 Reference has been made to the plaintiff’s affidavit (supra [25]). She was not required for cross examination. She described her feelings when she heard her father acknowledge his guilt on 14 November 2006. At once she felt both enormous relief and empowerment. She added:

“[33] I felt that I would be able to do something about my life. I had been told by the DPP at about the time that my father pleaded guilty that I could have some civil remedies for myself.
[34] I felt empowered and able to take some further steps to do something about my own life. ... ”

50 Ms Glennie consulted lawyers within two weeks, although it took some time to find a lawyer who would act for her.

51 Dr Pickering considered the plaintiff’s psychiatric state, and her capacity to manage her affairs during the relevant period. He stated his view in these terms: (p 13)

“It is difficult to address the legal aspects of this issue from a psychiatric point of view. Psychiatric disorders such as these paralyse individuals, but not in an absolute sense. Without the force of circumstances coming together, Ms Glennie would have been unable to do what she did. She was in a relationship which although not entirely stable was certainly the most stable she had experienced and in this she was encouraged to firstly report the sexual abuse. When this was underway, and she had some sense of empowerment from the action taken by the police and the prosecutors, then the matter could go further, but only again with great encouragement and support. It was only because she acted as she did on a ‘now or never’ impulse that she was able to bring herself to act at all in bringing the criminal matter to the attention of the police – this conveys a sense of having severe difficulty willing herself to act. It was only when this was concluded that she was in a psychological state in which she could have commenced legal action in the civil arena.”
(emphasis added)

52 He added:

“ It is this writer’s view therefore that she was not in a fit psychological state to be able to instruct a solicitor prior to her father’s conviction and sentencing in 2006. In the important period from the time of her attaining her majority, she was not in any state to contemplate taking any civil action in relation to the sexual abuse she suffered at the hands of her father (and by extension the failure to act of others). It has only through a process of a series of graduated responses that empowered her enough to be able to undertake this that she has been able to take the step, and that has included the support by her boyfriend Glenn. The support she received from the police and the prosecutors also has made such a difference. This writer commented earlier that the conviction of her father did not improve her psychiatric status, and indeed from a symptomatic point of view it has not, but one thing it has achieved is that it has empowered her enough that she has at least been able to undertake the civil action.”
(emphasis added)

53 Dr Dragutinovich, the psychologist consulted in August 2007, had the same view. He said this:

“Briefly, the history is that Cassandra was subjected to repeated sexual abuse perpetrated by her incestuous, paedophilic, biological father between the ages of 4 and 7, setting in train subsequent significant functional disability with associated maladaptive ‘escape behaviours’ related to DSM-IV-TR disorders of Chronic Major Depression, Polysubstance [Cannabis; Alcohol; Narcotics] Abuse and Chronic Post Traumatic Stress, all of which mentally impaired and substantially impeded her in the management of her affairs until such time that she attended a hearing at the Nowra District Court on 14 November 2006 to hear her father plead guilty to the offences against her. This event resulted in a significant vicarious discharge in Cassandra followed by a sense of empowerment which prompted her to seek legal advice and assistance.
It is my opinion that Cassandra was under a disability until the plea of guilty by her father empowered her to feel that she could take some action on her own behalf.”
(emphasis added)

54 Dr Dragutinovich, incidentally, was mistaken in suggesting that the abuse ended at the age of seven years. In fact, it ended when Ms Glennie was 11 years old in Year 7 at High School.

55 Dr Davies, the treating psychiatrist, expressed similar views. His report of 9 August 2008 was expressed as follows:

“Mrs Glennie is a twenty-eight year old woman who has a long psychiatric history of depression and substance abuse following a prolonged period of sexual assault by her father when she was a child.
Even after she had disclosed the assaults to the Police, Mrs Glennie remained in fear of her father and would not have proceeded with case without the ongoing support of the Police. It was not until he admitted the assaults that she felt sufficiently strong to take proceedings in her own right.
However even despite this advance Mrs Glennie has continued to manifest signs of an ongoing psychiatric disorder and remains under treatment.
I am of the opinion that Mrs Glennie’s ongoing psychiatric illness and consequent associated feelings of self blame were a major factor in her inability to commence proceedings until after her father’s admission of guilt in 2006.”
(emphasis added)

56 Dr Lisa Brown, psychiatrist, formed a different view. She identified the question in terms which do not quite reproduce the definition of “disability” in s 11(3)(b). She said this: (p 24/25)

“ ... I understand that the definition involves the person being incapable of or substantially impeded in the management of his or her affairs in relation to the cause of action and in respect of the limitation period. The person is incapacitated if they suffer any disease of impairment of their physical and emotional condition for a continuous period of twenty eight days or more.”

57 Dr Brown acknowledged that sexual abuse can lead to disability in the management of one’s affairs. She said: (p 25)

“ ... A delay in onset of undertaking legal proceedings not uncommonly arises because of the difficulties for individuals in disclosing abuse experiences, even during adult years. Ms Glennie’s delayed adult disclosure in a treatment setting is therefore not an uncommon outcome. ... ”

58 Dr Brown then referred to what she regarded as three relevant disclosures, the first to the early childhood nurse, then the counsellor in 2002 and finally the Police (between June and November 2003). She said this: (p 25)

“ ... However, given that Ms Glennie was able to disclose to an early childhood nurse following her daughter’s birth and also was able to discuss her abuse experiences with a counsellor in 2002 her capacity to disclose from this point onwards sounds to have been unimpeded.
In addition, Ms Glennie’s capacity to make a statement to police is consistent with her being readily able to instruct legal counsel. Given the detailed nature of the disclosure required to compile a police statement it is unlikely that Ms Glennie would have been more emotionally discomforted in providing a similar outline of her history to solicitors.
As to whether Ms Glennie was unaware of her legal options she reported not having been informed of the possibility of civil proceedings until during the criminal proceedings. Whether or not this recall is accurate will need to be decided upon by other parties involved in the legal claim. However, this issue is not suggestive of any psychiatric reasons having delayed Ms Glennie’s legal action up until after the criminal case leading to her father’s conviction.”

59 I should interpolate that Dr Brown was wrong in the date that she assigned to the counsellor (2002). The counsellor was Dr Kym Nicholson who saw the plaintiff in October and November 2004 (Exhibit D).

60 Dr Brown then commented upon the view of Dr Pickering (that the plaintiff was disabled until she heard her father plead guilty in November 2006). She did not accept that view, for the following reasons: (p 25)

“With respect to Dr Pickering’s opinion that the plaintiff was particularly empowered by her father’s conviction, this may describe her emotional reactions to her father being found guilty but is not consistent with her capacity from 2002 onwards being impaired to make a detailed statement. It is therefore my opinion that despite her psychological difficulties Ms Glennie would have been able to instruct legal counsel during the year 2002 or 2003 and from this time onwards in an unimpeded fashion. She has therefore not been considered to be under a Disability as outlined by the Limitation Act Section 50F (sic).”
(emphasis added)

61 Counsel for the plaintiff seized upon this paragraph in argument. Clearly Dr Brown regarded the consultations with Dr Nicholson as material. Since they did not take place until late 2004 (not 2002), the disability identified by Dr Brown can be assumed to extend until 2003/2004. If one selected either date, and assumed a six year limitation period, the statement of claim was within time.

62 Ms Burke of counsel, for the second defendant, suggested that it may be material, in that circumstance, to determine whether, in truth, the limitation period was three years or six. If it were three years, then the statement of claim was issued outside the limitation period.

Conclusion.

63 The issue that separates the medical evidence relied upon by the plaintiff and that of the defendant is really quite narrow. Ms Glennie reached her majority in April 1998. She was, at that time, however clearly disabled. Her life was chaotic. She was addicted to heroin. She was working as a prostitute and committing crime to assist in funding her drug habit.

64 Gradually and slowly she began a journey back towards normality. In 1999 she completed a detoxification programme and began a course of medication designed to eradicate her craving for heroin. According to her affidavit, she was “clean” within seven months.

65 However, heroin was only one of Ms Glennie’s problems. She was also destitute and psychiatrically disturbed. She began drinking heavily and smoking cannabis each day, to the point where she was, in her own words, “smashed” (Aff [19]). She lived with her parents on the south coast. She had many short relationships and, as a result of one, became pregnant. Her daughter was born in July 2001. It was agreed by all doctors who furnished reports for the purpose of this hearing that she remained disabled to this point, that is, to the age of 21 years.

66 Dr Brown acknowledged the difficulty which victims of sexual abuse have in undertaking legal proceedings, even when they are adults. As I understand her report, the difficulty arises mainly because of their diffidence in disclosing such abuse. She therefore attached importance to a number of disclosures made by Ms Glennie in the period 2001/2002 to late 2004. She reasoned that, if the plaintiff had the capacity to make such disclosures, including a detailed statement to the police, then she “would have been able to instruct counsel during the years 2002 or 2003” (sic 2003/2004) “in an unimpeded fashion”.

67 In evaluating that view, it is instructive to look at the nature of the disclosures which were made and the evidence concerning Ms Glennie’s mental state at that time. The disclosure to the early childhood nurse occurred some time after the birth of the child (unspecified) in a particular context. In her affidavit, Ms Glennie said this:

“[23] I spoke to the early childhood nurse of my daughter about what had happened to me as a child and my concerns for my daughter. The early childhood nurse contacted DOCS and they became in contact with me. I had at that stage moved out of the house and informed them that I had removed my daughter from the home my father resided in.”

68 That disclosure seems to me to be relatively unimportant. I would infer that the plaintiff simply said that she had been the subject of sexual abuse by her father when a small child, without significant elaboration. Of more importance is the next relevant disclosure, which was to the police. Ms Glennie attended the police station on three occasions. She did so on the spur of the moment for the first time on 5 June 2003. She was encouraged to write out a statement of what she could remember, and did so on 16 August 2003. She saw the police again on 23 September 2003 and finally made a detailed statement on 17 November 2003. Ms Glennie said this in relation to these disclosures:

“[25] I gave a statement to the Police in November 2003 about what had happened to me as a child and as a result they investigated the matter and commenced proceedings against my father. The proceedings against my father went very slowly and I felt that nothing was happening or being achieved.”

69 The final matter Dr Brown thought important, as an indication of Ms Glennie’s capacity to pursue her civil case, was the disclosure to Dr Kym Nicholson in counselling sessions on 21 October and 18 November 2004. Ms Glennie, in her affidavit, said this concerning those sessions:

“[24] I had brief counselling sessions with Kym Nicholson, a counsellor at the women’s health centre in Nowra, on 21 October 2004, 18 November 2004 and by telephone on 9 February 2005. I did not feel that the counselling sessions achieved anything or enabled me to deal with any of the issues in my life.”

70 Dr Nicholson furnished a report, which was as follows:

“Cassandra had heard about the Centre through the local Drug and Alcohol service. She said that she had reported to the police about her sexual abuse as a child and gave me a copy of her statement.
She presented by stating how very hard it was for her to get on with her life as she was constantly thinking about her childhood and why the abuse happened. She said that even though she had made her statement to the police ‘nothing is happening again’. As a result she was becoming anxious and feeling overwhelmed by powerlessness at times. As a result of having gone to the police her family had disowned her even though her other sisters had also been abused. She was thus without their support. There were also issues affecting her current relationship with her partner and pot use and ongoing concerns over her brother’s drug use.
Cassandra was extremely worried about her own daughter having contact with Cassandra’s father but was also concerned about other children being in contact with him. Cassandra was highly motivated to seek protection for her daughter.”

71 Dr Nicholson’s notes of each consultation were tendered (Exhibit D). It is apparent that, beyond referring to the sexual abuse and providing a copy of her statement to the police, Ms Glennie did not elaborate. Dr Nicholson also indicated that she had spoken on the telephone to Ms Glennie on 9 February 2005 and saw her later that month in an educational group for managing anxiety and depression.

72 Ms Glennie, in her affidavit, provided the following general description of how she was feeling and coping in the period between the birth of her child and her attendance at Court on 14 November 2006, when she heard her father plead guilty. She said this:

“[26] I had feelings of powerlessness and I had experienced enormous stress in my life at this time. After leaving my parents house I had moved to public housing which I thought was unsuitable as it was in an estate which was lawless. I was fearful for myself and my daughter and her safety. Through the South East Area Health Service I saw a psychologist called Soraya Issa on or about the 8 November 2006 who assisted me by writing a letter to the Housing Commission to help me get more suitable housing.
[27] I would describe my life at this period as out of control. I was unable to make decisions about small or large matters in my life.
[28] For most of the period after reporting the matter to the police up until the time my father actually pleaded guilty I did not know what the outcome would be. I was fearful that he would not be convicted. I was constantly thinking about what had happened to me and not able to deal with the thoughts. It made living my life very difficult. I had no feeling of control about anything in my life at that time.”

73 Ms Glennie, as I have said, was not required for cross examination.

74 This material, I believe, demonstrates that, notwithstanding the disclosures made by Ms Glennie in the period before 2006, including those made to the police, she remained enfeebled and incapacitated in the management of her affairs by reason of her psychiatric conditions. It was a giant step for her, and an important step, to go to the police. She took that step with great difficulty, and then only at the urging of her boyfriend. She made it notwithstanding her incapacity. It cannot, in my view, be taken as a general indication of her capacity to look after her own interests, and attend to her own affairs. It was, I believe, all she could manage at that time.

75 In State of New South Wales v Harlum (supra), Beazley JA (Tobias JA agreeing) said this:

“[94] The State’s approach also fails to deal with another of the other fundamental aspects of bringing a claim, namely that 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.”

76 Until Ms Glennie witnessed her father’s confession in court, she did not, I believe, have the capacity or the willpower to give instructions to lawyers in respect of the cause of action she had, and that because of her multiple psychiatric conditions.

77 I accept the evidence of Dr Pickering and the other medical practitioners who share his view and I prefer that evidence to that of Dr Brown. There did exist, in my view, a substantial impediment to the commencement of proceedings before 14 November 2006, arising from the various psychiatric conditions suffered by Ms Glennie, and the effect they had upon her mental condition (cf State of New South Wales v Harlum (supra), Basten JA at [145]). She was, until that time, under a disability within the meaning of s 11(3)(b) of the Limitation Act 1969, such that until that date the running of the limitation period is suspended.

Orders.

78 I make the following orders:

1. I order, by consent, that the issue whether or not the plaintiff’s action was statute barred be determined as a separate issue in advance of the action.

2. I make a declaration that, by reason of the plaintiff’s disability, the limitation period is suspended from running until 14 November 2006.

3. The costs on the motion should be the plaintiff’s costs in the cause.

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