Lambert v Bannerman
[2001] QSC 345
•21/09/2001
SUPREME COURT OF QUEENSLAND
CITATION: Lambert v. Bannerman [2001] QSC 345
PARTIES: JAMES HOWARD LAMBERT
(Applicant/Plaintiff)
v
GREGORY IAN BANNERMAN
(Respondents/Defendants)
FILE NO: S289/01
DIVISION: Trial Division
DELIVERED ON: 21 September 2001
DELIVERED AT: Rockhampton
HEARING DATE: 20th July 2001
JUDGE: Dutney J
ORDERS:The application is dismissed with costs to be assessed on the standard basis.
CATCHWORDS: PERSONAL INJURIES – LIMITATION OF ACTIONS – Whether cause of action independent of limitation period – Whether the state liable for sexual abuse of a schoolchild by a teacher – Whether defendant prejudiced by delay of 27 years where teacher convicted.
Rich v State of Queensland & Ors [2001] QCA 295
followed.
Lister & Ors v Hesley Hall Ltd [2001] All ER 769
not followed.
Brisbane South Regional Health Authority v Taylor
(1996-1997) 186 CLR 541 referred to.
Robinson v State of Queensland (16 March 1998 –
4558 of 1997 – unreported) referred to.
COUNSEL: T.I. Morgan for the Applicant/Plaintiff
M.J. Burns for the Respondent/Defendant
SOLICITORS: Taylors for the Applicant/Plaintiff
Crown Solicitor for the Respondent/Defendant
Dutney J: The applicant was sexually abused as a child in 1974 at the Taroom State School by the school principal. The principal, a Mr Bannerman who is named as first defendant but not yet served with the proceedings was convicted on 11 April 1975 at Roma and sentenced to a term of imprisonment for abuse of the applicant.
As a consequence of the abuse the plaintiff has suffered greatly throughout his life from a number of psychiatric disorders including a post traumatic stress disorder.
The statement of claim filed details a course of abuse extending well beyond the
particular incidents for which Mr Bannerman was charged and convicted.
The action was commenced on 18 June 2001.
The applicant seeks an extension of time within which to commence the
proceedings.
To succeed in enlivening the jurisdiction to commence proceedings the applicant must show that a material fact of a decisive nature was not within his means of knowledge until 18 June 2000 and that he has a viable cause of action but for the limitation period.
2
It is difficult in this case to identify any fact in the relevant sense. The applicant’s real difficulty is that he was continually advised, incorrectly, that he had no redress against Mr Bannerman and should simply forget about the events and get on with life. This seems to me to be a mistake in relation to the law rather than ignorance of a material fact. To overcome this it has been sought to identify as the material fact that the applicant was unaware that he in fact had a psychiatric problem. That may well be sufficient even though the manifestations of that problem have been apparent for years. In the event, however, it is unnecessary to explore this matter in depth because of the considerations, which follow.
The applicant bases his cause of action against the State of Queensland on a non delegable strict duty to protect school children at school or alternatively on vicarious liability.
The former basis of liability was the subject of the recent Court of Appeal decision in Rich v State of Queensland & Ors [2001] QCA 295. In that case the Court of Appeal rejected the imposition of strict liability on the state in the circumstances that exist here. At [16] McPherson J, reflecting the views of the other members of the Court who separately came to the same result, said:
“But before the State can be held to liability for failing to perform its duty, it must be proved and, for that purpose, must be alleged to have acted in breach of its duty in some identifiable and identified respect.”
[10] That case which also concerned a claim for damages for the sexual abuse of a
schoolchild by a teacher is indistinguishable from the present. The applicant
3
not having alleged any identifiable or identified respect in which the State has breached its duty cannot on grounds only of a non delegable duty of care make the State liable for damages.
[11]Alternatively, the applicant here relies on vicarious liability on the authority of Lister & Ors v Hesley Hall Ltd [2001] All ER 769. While vicarious liability was not relied upon in Rich v State of Queensland the Court was referred to Lister and dealt with it by way of dictum. McPherson J said at [6]:
“Despite the very recent decision of the House of Lords in Lister v Hesley Hall Limited it remains the law in Australia that an employer is generally not vicariously liable for an assault by an employee that is an independent personal act not connected with or incidental in any way to work the employee is expressly or impliedly authorised to perform. See Deatons Proprietary Limited Flew (1949)
79 CLR 370, and the authorities referred to by Mahoney
JA in Petrou v Hatzigeogiou (1991) Aust Torts Reports
81-071, at 68, 563. Nothing can be clearer than that the assaults alleged to have been committed here were independent and personal acts of misconduct by D’Arcy. They were in no sense capable of being regarded as methods of conducting his teaching function, but were done in utter defiance and contradiction of it and of his duties as an employee of the State.”
[12] With respect I cannot see any flaw in the reasoning and feel bound to follow and
apply it notwithstanding it is dictum in the case.
[13] The result is that neither of the two bases of liability on the part of the State is
arguable as the case has been presented.
[14] There is a strong discretionary basis for refusing the application. These events
took place in 1974, now 27 years ago. Even though Mr Bannerman was
4
convicted he was not convicted of the particular acts the applicant now wishes
to rely on. He has not yet been found even if he is still alive. He would now be
70 years of age. Some of the teachers who were at the school in Mr Bannerman’s time have been located and some have not. School records are missing for 1974.
[15]This is a good example of the type of case where time alone is likely to cause great prejudice to the defendant: Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541 at 555, 544. It is hard to imagine that after 27 years anyone except perhaps the plaintiff will have a clear recall of events. There is also real prejudice demonstrated in the respects I have listed above.
[16] The comments of Derrington J in Robinson v State of Queensland (16 March
1998 – 4558 of 1997 – unreported) at pp3-5 are applicable here.
[17]In the circumstances I would, if the circumstances for its exercise had arisen, decline to exercise my discretion in favour of the applicant and the application is dismissed with costs to be assessed on the standard basis.
5
0