MO v JR
[2007] QDC 63
•13 April 2007
DISTRICT COURT OF QUEENSLAND
CITATION:
MO v JR & Anor [2007] QDC 063
PARTIES:
MO
(applicant/plaintiff)V
JR
(first respondent/defendant)&
STATE OF QUEENSLAND
(second respondent/defendant)FILE NO/S:
BD 3523/06
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
District Court Brisbane
DELIVERED ON:
13 April 2007
DELIVERED AT:
Brisbane
HEARING DATE:
22 March 2007
JUDGE:
Ryrie DCJ
ORDER:
1. That the limitation period be extended to 30th April 2007.
2. That the plaintiff be authorized to proceed further with his claim against the 2nd defendant pursuant to s.18(1)(c)(ii) of the Personal Injury Proceedings Act 2002.
3. That the plaintiff be given leave to commence proceedings against the 2nd defendant pursuant to s.43 of the Personal Injury Proceedings Act 2002.
4. That the costs of and incidental to this application be the 2nd defendant/respondent’s costs in the cause.
CATCHWORDS:
LIMITATIONS OF ACTIONS – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF ASSAULTS – KNOWLEDGE OF MATERIAL FACTS – MATERIAL FACTS OF A DECISIVE CHARACTER – where first respondent was a treating psychiatrist – where first respondent had sexually abused applicant – whether admissions made by the first respondent were a material fact of a decisive character – whether there exists a prima facie case on liability, causation and quantum of damages – whether second respondent would suffer significant prejudice.
Limitation of Actions Act 1974, s 31
Personal Injury Proceedings Act 2002, ss 18(1)(c)(ii) & 43
COUNSEL:
Mr G Mullins for the applicant
Mr P Freeburn S.C for the second respondent
SOLICITORS:
Cooper Grace Ward for the applicant
Gerard Malouf & Partners for the second respondent
Introduction
The applicant/plaintiff, MO, was born 23rd December 1979. He was about 12 or 13 years old when he first consulted JR, Psychiatrist, for treatment. JR was engaged at that time by the Cairns Mental Health Unit (‘the Unit’) to provide services as a Visiting Medical Officer (‘VMO’). During the time the applicant received treatment from JR, the applicant was sexually abused by him. At some point during 1994, the applicant, in the presence of his grandmother, had complained to two male psychologists at the Unit about JR’s behaviour. The applicant says that that complaint was largely ignored as he was once again returned to JR for further treatment. JR’s engagement as a VMO with the Unit was however terminated on the 3rd July 1994. The applicant says (in his Part 1 Notice of Claim) that he was sexually abused by JR over a period spanning 8 years from the time he had first received treatment.
On the 30th April 2006, as a result of an ‘assisted’ Queensland Police Service wired conversation between the applicant and the 1st defendant, JR made admissions that he had been sexually abusing the applicant while providing treatment to him. The Queensland Police Service had become involved in the criminal investigation of JR after the applicant’s de-facto partner had spoken to them. The applicant provided a formal statement to the Police on 30th October 2004 after the Police subsequently approached him personally about the matter.
The applicant had consulted solicitors in October 1994 (Shine Roach McGowan, his former solicitors) and again in September 1995 (Gerard Malouf & Partners, his current solicitors) to investigate a possible claim on his behalf against the doctor and the Unit.
He specifically advised his solicitors however that he did not wish them to initiate proceedings on his behalf at that time as he was still helping out the police in their investigation of JR. He believed that if his solicitors put either of the defendants on notice, that is, by initiating proceedings on his behalf, it would jeopardise that police investigation (para 73 and 70 of Lana Ventsov’s affidavit sworn 12th March 2007). The applicant had been advised in December 2005, by a Queensland Police Service officer, Damian Chattaway, that unless JR actually admitted to sexually abusing him, they would not be able to proceed further. The applicant himself also believed that if either of the defendants received notice from his solicitors of any civil proceedings, JR would simply deny the allegations and it would then be ‘a case of his word against the doctors’. (para 51 and 53 of MO’s affidavit sworn 19th March 2007).
As a result of the applicant’s continued assistance to the police, taped admissions were subsequently obtained from JR on the 30th April 2006. He was then arrested and charged in respect of the matter.
On the 28th June 2006, a Part 1 Notice of Claim was duly served on Queensland Mental Health (‘2nd defendant/respondent’).
The applicant seeks an extension of time in which to commence his action. (s.31 Limitation of Actions Act 1974 (‘the Act’)). He reached his majority on 23rd December 1997. Therefore, the limitation period in respect of the earlier sexual assaults did not expire until 23rd December 2000. The Act also operates to exclude the assaults committed up to 2000 in that the relevant limitation period in respect of those assaults expired in 2003.
Issues
In the submissions of behalf of the applicant, the issues under s.31 are summarised as follows:
8.1 Are the admissions of JR obtained on 30 April 2006 a ‘material fact of a decisive character’?
8.2 Is there a prima facie case on liability, causation and quantum of damages?
8.3 Is there significant prejudice to the (2nd) defendant in the exercise of the discretion to extend time, such that the (2nd) defendant is now no longer able to have a fair trial?
Material fact of a decisive character
The claim is statute-barred. Under s.31(2) of the Act the court has a discretion to extend the limitation period if the applicant can demonstrate that:
· ‘a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
· ‘that there is evidence to establish the right of action apart from a defence founded on the expiration of a period limitation’.
s.30(1) defines, for the purpose of the Act, what are ‘material facts’ relating to a right of action.
s.30(1)(b) provides that:
‘material facts relating to a right of action are of a decisive character, if but only if, a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing:
(i)that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and
(ii)that the person whose means of knowledge is in question ought, in the person’s own interests, and taking the person’s circumstances into account, to bring an action on the right of action.’
It is submitted by the applicant that the taped conversation obtained on the 30th April 2006 was ‘a material fact of a decisive character’.
In the present circumstances, there is no argument that the taped conversation obtained on the 30th April 2006 may well be decisive in any action against JR (1st defendant).
There is also no argument that the applicant knew that he had been sexually abused by JR. He had complained about it as early as 1994 to other psychologists at the Unit. It is also clear that the applicant knew that he was entitled to initiate court proceedings for personal injuries against the doctor and Queensland Mental Health (from at least 2004) in light of the consultations which he had with his respective solicitors.
However, the applicant submits that proving the sexual abuse and the conduct of JR, on the balance of probabilities, was an essential element of any such successful cause of action. The applicant submits that the lack of evidence to support those allegations, apart from the applicant’s own evidence, was likely to be a fundamental stumbling block in any civil claim pursued by him for damages for personal injuries and as such, the lack of evidence proving the ‘material fact’ went to the genesis of s.30(b)(i) and (ii).
I agree with that submission.
In this case, the applicant believed that the only way he thought he could possibly succeed in bringing a claim against JR, either criminally or civilly, was to have him admit that he had sexually abused him. That belief is consistent with the advice which he had received from the police (Officer Chattaway) in December 2005 in respect of the criminal investigation. It is also consistent with the applicant’s own belief in that the applicant also believed that once the doctor had made the admissions, which were obtained by tape on the 30th April 2006, that he would then have good grounds to make a civil claim and that it would also worthwhile to bring that claim. (see paragraph 55 of MO’s affidavit sworn 19th March 2007).
While that belief is consistent with the instructions which the applicant had given his solicitors prior to the taped admissions being obtained on the 30th April 2006, it cannot be said that it is entirely consistent once those admissions had been obtained. As late as the 5th May 2006, the applicant was still advising his current solicitors that he did not wish to proceed with his civil proceedings as he didn’t want to jeopardise the criminal proceedings (see paragraph 63 of Lana Ventsov’s affidavit sworn 12th March 2007). However, the applicant did continue to communicate with his solicitors between the 25th May 2006 and until 22nd June 2006, at which time he provided clear instructions to his solicitors to commence civil proceedings on his behalf (paragraph 63 of Lana Ventsov’s affidavit sworn 12th March 2007). A notice of claim was then served on Queensland Mental Health on the 28th June 2006. Thus it would seem, any delay on the part of the applicant/plaintiff to initiate civil proceedings against the defendants after the taped admissions had been obtained on the 30th April 2006, was minimal insofar as he did subsequently provide instructions to his legal representative after further communications had taken place between them regarding the matter shortly thereafter, which also included consultation by the solicitor with the barrister.
Accordingly, I find that the taped conversation of the 30th April 2006, was a material fact of a decisive character in that once those admissions were obtained, a reasonable person would only then regard that fact as showing that the applicant did have a worthwhile cause of action to pursue and that it was in his interests to pursue it.
As submitted by the applicant, those admissions completely changed the fabric of the case such that a case that was otherwise speculative had much stronger prospects of success on liability. While it is true that his current solicitors had been urging him to proceed with his civil claim prior to those admissions being obtained in order to protect the applicant’s interests, particularly it seems as it related to any extension of time application which needed to be made, it is also true that the applicant had consistently instructed them not to proceed in view of his own belief that without those admissions, any proceedings brought, either criminally or civilly, would more than likely have been futile and as such, was not a worthwhile cause.
As observed in Queensland v Stephenson and Ors [2006] HCA 20 at para [39], even if a claimant could have instituted a claim earlier than the time when a reasonable person would have regarded the facts as showing that he ought to do so, it is only when the reasonable person would regard the facts as showing that he ought to do so that time begins to run under s.31(2).
Prima facie case
The applicant relies on two bases upon which the liability of the 2nd defendant/respondent is arguable.
The first is that the respondent is vicariously liable for the actions of the 1st defendant, JR, during the time that he was engaged by the Unit as a Visiting Medical Officer to provide services. The second basis is that the 2nd defendant/respondent was in breach of its’ duty of care to the applicant by returning him to JR for treatment notwithstanding that he had made a complaint in 1994 about JR’s behaviour to other psychologists at the Unit.
During the course of the argument, Counsel for the applicant indicated that the current statement of claim would need to be ‘reworked’ to incorporate the allegation of vicarious liability against the respondent. Mr Mullins relied on the decision of Gleeson CJ in New South Wales v Lepore (2003) 212 CLR 511, and on the affidavit of Mark Edmund Sainsbury sworn 22nd March 2007 to support that allegation.
The scant evidence available for consideration does support a conclusion that there are some indicia suggestive of an employment type relationship as between the 1st defendant and the 2nd defendant/respondent for at least part of the relevant time.
JR was paid at an hourly rate, he had consulted with the applicant and provided him with psychiatric treatment as part of his role as a visiting medical officer. He had been engaged by the Unit for that purpose since 1992. His position as a visiting medical officer was finally terminated by the Unit on the 3rd July 1994.
The respondent argued that the evidence available is doubtful in supporting any conclusion that an employer/employee type relationship ever existed between the relevant parties at the material time.
In support of that submission, Mr Freeburn on behalf of the respondent pointed to the vagueness surrounding the terms of that ‘engagement’, and to the affidavit material available which showed that the applicant may well have been seeing the doctor for private consultations rather than as a referred public patient on behalf of the Unit as such.
While I agree that those submissions have some merit, the evidence lacking in clarity now as to the true nature of the working relationship between the 1st defendant and the 2nd defendant/respondent might easily be resolved by the provision of further evidence at any subsequent trial of this matter, particularly in view of the concession that was made by both Counsel, that the relevant evidence required on this point may well be readily available to both parties.
As observed in ACT Visiting Medical Officers v Australian IndustrialRelations Commission and Ors (2006) 232 ALR 69, a case relating to the contract between visiting medical officers and a hospital, the relevant factors when determining whether those contracts established an employment relationship between the parties includes a consideration of the circumstances surrounding the making of the contract, the terms and effect of the contract itself, whether the visiting medical officers were providing their services in the hospital as part of the hospitals’ business or as part of their own business etc.
Accordingly, I am of the view that there is sufficient evidence available at this point to establish a prima facie right of action based on an allegation of vicarious liability apart from the limitation of actions defence.
The second basis relied upon by the applicant to establish liability was that the 2nd defendant/respondent was in breach of its’ duty of care to the applicant when it returned him to JR after the applicant had earlier complained about JR to two other psychologists at the unit, while his grandmother was present.
Both the applicant and his grandmother, Ms Klein, have deposed in their respective affidavits that the applicant did complain to two male psychologists at the Unit about JR’s behaviour and conduct at a time in 1994.
The evidence of Dr Gold, Consultant Psychiatrist, establishes that the actions of the medical authority, if correct, would fall well below the standard to be expected of a medical authority exercising reasonable care and skill for its’ patient.
Accordingly, I am satisfied that there is sufficient evidence to establish a prima facie right of action in respect of this allegation apart from the limitation of actions defence.
Prejudice
The question of prejudice was discussed Brisbane South Regional HealthAuthority v Taylor (1996) 186 CLR 541. It was held in that case that an applicant bears the legal onus of showing that the justice of the case requires the discretion to be exercised in his favour. The applicant must prove that an extension of time beyond the limitation period would not result in significant prejudice to the prospective defendant (respondent). There is, however, an evidentiary onus upon the respondent to identify the prejudice to it and which would make a fair trial no longer possible: Limpus v State ofQueensland [2004] 2 Qd R 161.
In respect of the claim based on the allegation of vicarious liability, there arguably is no prejudice. JR has made full admissions regarding his behaviour and conduct and he is currently facing criminal charges. All of relevant hospital and medical records still exist including it seems, the documents relating to JR’s engagement as a visiting medical officer.
In respect of the claim based on the ‘complaint’ made in 1994 to the Unit and its’ actions subsequently, the main thrust of the respondent’s argument was that the respondent would suffer obvious prejudice if the court was to extend the limitation period.
The respondent argues that this part of the applicant’s claim rests on ‘one or two conversations’ which the applicant says he had with two male psychologists at the Unit, who the claimant cannot specifically identify.
That submission however overlooks the fact that at least one of those ‘psychologists’ has in fact been identified as the person who had initially received the complaint from the applicant’s grandmother in 1994, Mr Kevin Colhan, Psychiatrist, (see paragraph 13 (b) of the affidavit of Mark Edmund Sainbury sworn 22nd March 2007). There is no suggestion on the material available that Mr Colahan is unable to be located at this point or that he doesn’t recall receiving that complaint or indeed, that he doesn’t have notes that may now assist him in that regard.
In demonstrating prejudice, the respondent also seeks to rely on the conversations and involvement which Dr Ernest Hunter had in respect of the matter after the issue of a complaint against JR was first brought to his attention in May 1994. (see paragraphs 12, 13 and 14 of the affidavit of Mark Edmund Sainbury sworn 22nd March 2007.). The respondent also points to the fact that the making of any complaint seems to have taken place at a time much earlier than what the applicant and his grandmother now recalls (September 1994). On any view of the evidence of Dr Hunter however, it is clear that even at the arranged meeting between Dr Hunter, Ms Crittenden, Ms Klein and the applicant, the issue of abuse was raised as a result of a complaint having been made initially to Dr Colahan. While it may be true to say that even though Dr Hunter says that he would find it impossible at this point to recall the specifics of any of those conversations now due to the passage of time, there does appear to be available, file notes and documentation to assist him in that regard. Further, there is no suggestion on the material before me, that Ms Crittenden, Psychiatrist, who was also present at that arranged meeting and who was involved in the formulation of the treatment plan, is unable to be located at this point or that she does not have a clear recollection of the extent or nature of the allegations made during that meeting or in respect of his subsequent treatment plan, at this point.
The respondent relied on the decision of Brisbane South Medical Authority v Taylor as factually analogous to this case. However, in that case, the crucial issue of the proposed action was to be based solely on the conversation between the respondent and the doctor and what advice he had given her prior to her undertaking an operation. There was also evidence supporting the uncertainty in being able to locate Dr Chang.
Here, there is no suggestion that Dr Colahan cannot be located or that he doesn’t have a recollection of the essence of the complaint made against JR after he initially received it. The same comments may be made regarding Dr Crittenden’s involvement.
Nor can it be said that the only ground of negligence relied on by the applicant to support his proposed action against the 2nd defendant/respondent is based solely on one ground. Here, there is an additional limb relied upon by the applicant, namely the aspect of vicarious liability.
Accordingly, on balance, I am satisfied that the 2nd defendant/respondent in this instance can have a fair trial even with the lapse of time.
s.18(1)(c)(ii) of the Personal Injury Proceedings Act 2002 and s.43 of the Personal Injury Proceedings Act 2002.
Having determined that the limitation period ought to be extended to the 30th April 2007, it follows that the orders sought pursuant to these sections should also be made.
In arriving at that conclusion, I have taken into account the submissions which were made by both parties in support of their respective arguments relating to s.31 of the Limitation of Actions Act 1974, which in essence were essentially the same bases relied upon in support of their respective arguments as it related to s.18(1)(c)(ii) and s.43 of the Personal Injury Proceedings Act 2002
The factors relevant for consideration in respect of s.18(1)(c)(ii) include the extent and reasons for the delay, the likelihood of prejudice to any party and whether it has been established that a party has no real prospects of success in a claim: Cousins v Mt Isa Mines Ltd [2006] QCA 261. These factors, having already been considered by me in respect of the extension of time application, justify that leave ought to be given to the applicant to start proceedings for damages based on liability for a person injury despite non-compliance.
Orders:
1. That the limitation period be extended to 30th April 2007.
2. That the plaintiff be authorized to proceed further with his claim against the 2nd defendant pursuant to s.18(1)(c)(ii) of the Personal Injury Proceedings Act 2002.
3. That the plaintiff be given leave to commence proceedings against the 2nd defendant pursuant to s.43 of the Personal Injury Proceedings Act 2002.
4. That the costs of and incidental to this application be the 2nd defendant/respondent’s costs in the cause.
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