MO v JR - [2007] QDC 63

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 30^th April 2007.

2.   That the plaintiff be authorized to proceed further with his claim against the 2^nd 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 2^nd defendant pursuant to s.43 of the Personal Injury Proceedings Act 2002.

4.   That the costs of and incidental to this application be the 2^nd 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 23^rd 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 3^rd 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 30^th April 2006, as a result of an ‘assisted’ Queensland Police Service wired conversation between the applicant and the 1^st 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 30

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MO v JR

Details

AGLC: MO v JR [2007] QDC 63
Case: [2007] QDC 63
Decision Date: 13 April 2007

CaseChat Overview and Summary

The case of MO v JR involved the applicant, MO, who sought an extension of the limitation period for bringing a claim against JR, the first respondent, a treating psychiatrist, and the second respondent. The dispute centred on the sexual abuse MO suffered at the hands of JR and the subsequent legal proceedings. The case was heard in the Supreme Court of Queensland. The applicant alleged that JR sexually abused him over a period of years and sought an extension of the limitation period to bring his claim, as well as authorisation to proceed with his claim against JR and the second respondent.

The primary legal issues the court had to address were whether the admissions made by JR constituted a material fact of a decisive character, and whether there existed a prima facie case on liability, causation, and quantum of damages. Additionally, the court had to consider whether the second respondent would suffer significant prejudice if the limitation period was extended. The court's task was to determine if the applicant's cause of action was sufficiently substantiated to warrant an extension of the limitation period and to weigh the prejudice that might be suffered by the respondents against the applicant's right to seek redress.

The court ruled in favour of the applicant, determining that the admissions made by JR were indeed material facts of a decisive character. It found that a prima facie case existed on liability, causation, and quantum of damages. The court also concluded that the second respondent would not suffer significant prejudice if the limitation period was extended. As a result, the court granted the extension of the limitation period to 30 April 2007 and authorised the applicant to proceed with his claim against JR and the second respondent, in accordance with the provisions of the Personal Injury Proceedings Act 2002. The court also ordered that the costs of and incidental to this application be borne by the second respondent.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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 30^th April 2007. 2. That the plaintiff be authorized to proceed further with his claim against the 2^nd 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 2^nd defendant pursuant to s.43 of the Personal Injury Proceedings Act 2002. 4. That the costs of and incidental to this application be the 2^nd 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