Munt v State of Queensland & Salvation Army (Qld) Property Trust

[1996] QSC 241

IN THE SUPREME COURT
OF QUEENSLAND

No. 2664 of 1995

[Munt v State Of Queensland & Salvation Army (Qld) Property Trust]

BETWEEN:
  LOUIS JOHN MUNT
  Plaintiff

AND:
  STATE OF QUEENSLAND
  First Defendant

AND:
  THE SALVATION ARMY (QLD) PROPERTY TRUST
  Second Defendant

JUDGMENT - HELMAN J.

Judgment delivered 13 November 1996

In the writ, which was issued on 22 December 1995, the plaintiff makes two claims against each of the defendants.  The first claim is for damages for personal injury, loss, and damage caused by the negligence of the first defendant and, or alternatively, the second defendant arising out of the treatment he received from 1937 to 1954 when a "state child" within the meaning of that expression in the State Children Act 1911.  Further, or alternatively, the plaintiff claims equitable compensation for breach of fiduciary duties owed to him by the first defendant and, or alternatively, the second defendant arising out of that treatment.
There are two applications before me. The first is by the plaintiff for an order that the period of limitation for the commencement of the action founded in tort be extended under s.31 of the Limitation of Actions Act 1974 to on or about 11 October 1996, and for other consequential relief. (It was common ground that the Limitation of Actions Act does not apply to the plaintiff's claim to equitable relief:  see the explanation concerning the New South Wales Act in Williams v. Minister (1994) 35 N.S.W.L.R. 497 at pp.508-509 per Kirby P., which explanation applies mutatis mutandis to the Queensland Act.)  The second application is by the second defendant for an order that the statement of claim delivered on 1 February 1996, so far as it makes allegations against that defendant, be struck out, and for other consequential relief. 
           The plaintiff's claims arise out of alleged incidents which, if proved, would reveal inhuman treatment of him as a young boy and shocking indifference to his welfare.
           The plaintiff is a pensioner who was born on 24 December 1936.  He lives on two hectares of land at Blackbutt with his de facto wife.  Extracts from the available records of the State Children Department that have been placed before me show that the plaintiff's father was Keith Nelson Munt, an accountant, and his mother Sybil Bertha Munt née Barber, a housewife.  On 11 November 1937 the plaintiff was received into the care of the Department because, it appears, his father was in hospital and his mother was unable to support him.  Although he was in care he was boarded with his mother until 16 August 1938, when he was transferred to the Diamantina Infants' Home, Wooloowin.  In the period from 16 August 1938 until 18 October 1939 he was at the home from time to time, with his mother for short periods, and in hospital from 29 December 1938 to 5 January 1939 and from 11 February to 17 April 1939.  On 18 October 1939 he was transferred from the Diamantina Home to the Diamantina Receiving Depot, Wooloowin and on 4 March 1941 to the Salvation Army Home, Indooroopilly.  From 4 March 1941 to 12 January 1953 he was at the Indooroopilly home, at other Salvation Army homes at Kalbar and Riverview and at the Men's Home Brisbane, and for a time back at the Diamantina Home.  The records relating to 1941 to 1953 show that he was in hospital from 13 May to 21 August 1941, at times on holidays, and in employment at Dayboro from 18 March to 15 April 1952.  On 12 January 1953 he was placed in employment at Dinmore. 
           On 22 April 1953 he was committed by the Director, State Children Department, to the Farm Home for Boys, Westbrook, to which he was admitted the next day.  He remained there until he was discharged on 9 October 1954 when he was placed in employment at Kulpi.  On 24 December 1954, his eighteenth birthday, he was discharged from care.
           The records show that the plaintiff's mother married a man named Charles Frederick Symonds at some time after the birth of the plaintiff and as a result of that union the plaintiff has a half-brother, Don, born in 1943, and a half-sister, Mimi, born in 1944.  The plaintiff had another half-brother, Albert, born in 1948, who was conceived when his mother was confined in a mental hospital.
           I shall return to the plaintiff's history later but it is now convenient to mention that pleadings have been delivered by the parties and to set out the allegations in the statement of claim:

"1.At all times material to this action the plaintiff was a male born on 24 December 1936.

2.        At all times material to this action, the State Children Department (`the Department') constituted under section 6 of the State Children Act 1911 (Qld) (`the Act'), through its officers and employees, administered the executive authority of the Crown in right of the State of Queensland.

3. This action is brought against the first defendant pursuant to the provisions of section 8(1) of the Crown Proceedings Act 1980 (Qld).

4.At all times material to this action the second defendant was a body corporate capable of being sued.

5.        At all times material to this action, pursuant to section 19 of the Act a child under the age of 14 years, on the application of a parent, guardian or near relative or any person of good repute, might be admitted as a state child.

6.        At all times material to this action, pursuant to section 10(1) of the Act, the Director of the Department, was appointed the guardian of all state children to the exclusion of any parent or other guardian.

7.        At all times material to this action, pursuant to section 11 of the Act, the Director of the Department, was entitled to deal with any state child without reference to any parent or relatives of the child and without informing any parent or relatives of the child of what was proposed to be or was done in relation to the child by:

(a)placing the child in a receiving depot;

(b)detaining the child in an institution;

(c)transferring the child from one institution to another;

(d)placing out or apprenticing the child;

(e)placing the child in the custody of some suitable person who was willing to take charge of the child.

8.        At all material times to this action, pursuant to section 4 of the Act, an institution was defined to include all state institutions established or deemed to be established under and for the purposes of the Act, and all other places for the time being under the supervision of the Department.

9.        At all times material to this action, pursuant to section 4 of the Act `a reformatory' was defined to include all institutions primarily established or conducted for the benefit of convicted children.

10.      At all times material to this action, the Director of the Department and all other officers and employees of the Department were the agents of the first defendant.

11.The plaintiff was admitted as a state child on 11 November 1937.

PARTICULARS

The plaintiff was admitted as a state child on the application of his mother who was financially unable to support him.

12.      In the premises, the first defendant owed the plaintiff a duty to exercise reasonable care not to expose the plaintiff to foreseeable risks of harm.

13.The first defendant placed the plaintiff into the second defendant's care.

PARTICULARS

(a)From in or about August 1938 until in or about April 1953, the plaintiff was placed by the first defendant at homes administered and managed by the first defendant at Diamantina and by the second defendant located at Kalbar, Indooroopilly and Riverview.

(b)The plaintiff during this period lived in the said homes and was subject to the supervision and control of the second defendant's officers and agents.

14.      In the premises, the second defendant owed the plaintiff a duty to exercise reasonable care not to expose the plaintiff to foreseeable risks of harm.

15.      On or about 23 April 1953 the plaintiff was sent by the first defendant and/or by the second defendant to the Westbrook Reformatory for Boys (`the reformatory').

PARTICULARS

(a)On or about 23 April 1953 the plaintiff was orally instructed by the second defendant's agent, an Officer [name given], to travel with the first defendant's agent, a Mr [name given].

(b)The said Mr . . . handcuffed the plaintiff and transported him to the reformatory.

(c)Further particulars of the first defendant's and/or the second defendant's involvement in sending the plaintiff to the reformatory will be provided after the discovery has been completed.

16.As at 23 April 1953, the plaintiff had not been convicted of any offence, misdemeanour or crime.

17.The reformatory was

(a)a reformatory within the meaning of section 4 of the Act;

(b)primarily concerned with reforming convicted boys;

(c)overwhelmingly populated by convicted boys.

18.The plaintiff was kept at the reformatory until on or about 9 October 1954.

19.The first defendant and/or the second defendant breached the duties of care owed by them to the plaintiff.

PARTICULARS       

(a)Particulars of the first defendant's breach of duty

(i)Exposing the plaintiff to sexual, physical and psychological abuse.

(ii)Placing the plaintiff in an institution which was unsuited to the plaintiff's developmental and emotional needs.

(iii)Failing to provide the plaintiff with suitable role models.

(iv)Failing to take account of the plaintiff's good character when placing the plaintiff at the reformatory.

(v)Failing to take account of the criminal records and character of the reformatory's population when placing the plaintiff at the reformatory.

(vi)Failing to monitor and control the plaintiff's experiences at the reformatory.

(vii)Failing to ascertain and/or have regard to the bad character of the reformatory's controlling officers.

(viii)Failing to satisfy itself that the plaintiff was receiving satisfactory treatment, care and education at the reformatory.

(b)Particulars of the second defendant's breach of duty

(i)Exposing the plaintiff to sexual, physical and psychological abuse.

(ii)Placing the plaintiff in an institution which was unsuited to the plaintiff's developmental and emotional needs.

(iii)Failing to provide the plaintiff with suitable role models.

(iv)Failing to take account of the plaintiff's good character when placing the plaintiff at the reformatory.

(v)Failing to take account of the criminal records and character of the reformatory's population when placing the plaintiff at the reformatory.

(vi)Failing to monitor and control the plaintiff's experiences at the reformatory.

(vii)Failing to ascertain and/or have regard to the bad character of the reformatory's controlling officers.

(viii)Failing to satisfy itself that the plaintiff was receiving satisfactory treatment, care and education at the reformatory.

(ix)Failing to advise the first defendant that the reformatory was an unsuitable institution at which to place a child of the plaintiff's character.

(x)Failing to take any steps to have the plaintiff removed from the reformatory.

20.      As a result of the first defendant's and/or the second defendant's breaches of duty, the plaintiff has suffered injury, loss and damage.

PARTICULARS

Whilst at the reformatory, the plaintiff was sexually and physically abused and maltreated.  The plaintiff was also a witness to sexual and physical abuse and maltreatment of other boys at the reformatory.  The sexual abuse involved episodes of molestation, sodomy and indecent acts.  The plaintiff's head was shaved, he was regularly beaten with a cane and was subjected to corporal punishment including being forced to walk in circles and perform squat jumps for extended periods of time.  The plaintiff experienced pain and suffering as a result of this treatment and abuse.

The plaintiff suffers from a lingering post-traumatic stress disorder caused by his experiences at the reformatory.  The psychiatric disorder has recently worsened and is expected to continue to worsen.  The plaintiff has incurred medical expenses.  The plaintiff has a need for future medical and hospital expenses.  The plaintiff has suffered from and will continue to suffer from a loss of the amenities of life.

Full particulars of the plaintiff's special damages will be provided prior to trial.

Further and/or alternatively

21.The plaintiff repeats and relies upon the allegations of fact contained  paragraphs 1 to 18 above.

22.In the premises, the first defendant assumed the position of a fiduciary in relation to the plaintiff.

23.In the premises, the second defendant assumed the position of a fiduciary in relation to the plaintiff.

24.In the premises, the first defendant owed the plaintiff the following fiduciary duties:

(a)to exercise all powers conferred by the Act in favour of the first defendant regarding the plaintiff in good faith and in the interests of the plaintiff;

(b)to monitor the plaintiff's personal experiences and development;

(c)to ascertain the plaintiff's developmental and emotional needs;

(d)to fulfil the plaintiff's developmental and emotional needs;

(e)to satisfy itself that the treatment, education and care received by the plaintiff was satisfactory;

(f)to protect the plaintiff from foreseeable risks of harm.

25.In the premises, the second defendant owed the plaintiff the following fiduciary duties:

(a)to at all times act with regard to the plaintiff in good faith and in the plaintiff's interests;

(b)to monitor the plaintiff's personal experiences and development;

(c)to ascertain the plaintiff's developmental and emotional needs;

(d)to fulfil the plaintiffs developmental and emotional needs;

(e)to satisfy itself that the treatment, education and care received by the plaintiff was satisfactory;

(f)to protect the plaintiff from foreseeable risks of harm.

26.The first defendant and/or the second defendant breached their fiduciary duties owed to the plaintiff.

PARTICULARS

(a)Particulars of first defendant's breaches of fiduciary duty

In sending the plaintiff to the reformatory and allowing him to remain there the first defendant:

(i)Exercised a power of placement conferred by the Act without regard to the interests of the plaintiff.

(ii)Exercised a power of placement conferred by the Act in bad faith.

(iii)Failed to monitor the plaintiff's personal experiences and development.

(iv)Exposed the plaintiff to sexual and physical abuse and maltreatment.

(v)Failed to ascertain and fulfil the plaintiff's developmental and emotional needs.

(vi)Failed to satisfy itself that the treatment, care and education administered by the reformatory was satisfactory.

(b)Particulars of the second defendant's breaches of duty

In sending the plaintiff to the reformatory and allowing him to remain there the first defendant:

(i)Failed to act with regard to the plaintiff in good faith and in the interests of the plaintiff.

(ii)Failed to monitor the plaintiff's personal experiences and development.

(iii)Exposed the plaintiff to sexual and physical abuse and maltreatment.

(iv)Failed to ascertain and fulfil the plaintiff's developmental and emotional needs.

(v)Failed to satisfy itself that the treatment, care and education administered by the reformatory was satisfactory.

27.      As a result of the first defendant's and/or the second defendant's breaches of fiduciary duties, the plaintiff has suffered injury, loss and damage.

PARTICULARS

Whilst at the reformatory, the plaintiff was sexually and physically abused and maltreated.  The sexual abuse involved episodes of molestation, sodomy and indecent acts.  The plaintiff's head was shaved, he was regularly beaten with a cane and was subjected to corporal punishment including being forced to walk in circles and perform squat jumps for extended periods of time.  The plaintiff experienced pain and suffering as a result of this treatment and abuse.

The plaintiff suffers from a lingering post-traumatic stress disorder caused by his experiences at the reformatory.  The psychiatric disorder has recently worsened and is expected to continue to worsen.  The plaintiff has incurred medical expenses.  The plaintiff has a need for future medical and hospital expenses.  The plaintiff has suffered from and will continue to suffer from a loss of the amenities of life.

Full particulars of the plaintiff's special damages will be provided prior to trial.

AND THE PLAINTIFF CLAIMS:

A.As against the first defendant:

(i)Damages for negligence;

(ii)Interest calculated pursuant to the provisions of the Common Law Practice Act 1867;

(iii)Costs.

Further and/or alternatively

(i)Equitable compensation for breach of fiduciary duties;

(ii)Interest calculated pursuant to the provisions of the Common Law Practice Act 1867;

(iii)Costs.

B.As against the second defendant:

(i)Damages for negligence;

(ii)Interest calculated pursuant to the provisions of the Common Law Practice Act 1967;

(iii)Costs.

Further and/or alternatively

(i)Equitable compensation for breach of fiduciary duties;

(ii)Interest calculated pursuant to the provisions of the Common Law Practice Act 1867;

(iii)Costs.

Place of Trial:              Brisbane

The plaintiff does not require this action to be tried by jury."

It is not necessary to analyse the pleadings in detail in considering the plaintiff's application, which turns upon whether the requirements of s.31(2)(a) and (b) of the Limitation of Actions Act have been satisfied and whether the discretion provided for in that subsection should be exercised in his favour.  It suffices to say that the claim against each defendant in tort is based on the allegations that it owed a duty to the plaintiff to exercise reasonable care not to expose him to foreseeable risks of harm (paragraphs 12 and 14 of the statement of claim), that it sent the plaintiff to Westbrook (paragraph 15) even though he had not been convicted of an offence (paragraph 16), and that by so doing and by subsequent acts and omissions it was in breach of its duty of care to the plaintiff (paragraph 19) as a result of which the plaintiff suffered injury, loss, and damage (paragraph 20).  Each defendant has denied the negligence alleged and that it caused the alleged injury, loss, and damage and has pleaded that the period of limitation for the action has expired.
           The plaintiff has put before me, it appears as the history of events leading up to his being sent to Westbrook, evidence of cruelty by Salvation Army officers when he was at the Salvation Army homes.  He says that when he was at the Indooroopilly home one named officer regularly beat him over trivial matters.  He has related an incident at the Riverview home in which another named officer beat him over a trivial matter and then threw him in the river even though he was unable to swim.  He was terrified he might drown, but managed to pull himself to the river bank by means of a submerged ferry cable.  Once he had regained dry ground the beating resumed.  He relates threats made more than once by the first officer I have mentioned to the effect that if he were not careful the officer would send him to "Westbrook or the mental home".  He says he was forced to undertake exhausting work at Dinmore and to sleep under a leaking water tank.  He says that just before he was taken to Westbrook he was told by the Salvation Army officer referred to in paragraph 15(a) of the statement of claim that he was to be taken by an officer of the State Children Department to a shipyard where he was to begin a boilermaking apprenticeship in which the plaintiff had expressed an interest.  Instead, the man referred to in paragraph 15(a) and (b) of the statement of claim took him in handcuffs to Westbrook on a train.  On the way the man molested him in the lavatories at the Ipswich Railway Station by fondling his genitals.  The plaintiff says he protested at the man's approaches and the man stopped. 

           The plaintiff says that on his arrival at Westbrook he was taken to the office of a man who it appears, from references to the man in a report made in 1961 by Mr A.E. Schwarten, S.M., on the Westbrook home and from an affidavit of Mr Donald Smith filed on behalf of the first defendant, was the deputy superintendent of the home.  The plaintiff says the deputy superintendent demanded that he remove his clothes and bend over a desk whereupon the deputy superintendent forced a cane into his anus and said words to the effect that that was what he was there for and that he should have let the man who had brought him have his way with him.  The deputy superintendent then beat him, he says.  The plaintiff says that a man who it appears, from the same sources, was the superintendent of the home was present when the events I have just related took place.  
           The plaintiff says that when he was at Westbrook there was a group of boys called "sergeants" who were favourably treated by the officers and who enjoyed a number of privileges.  The "ordinary" boys, of whom the plaintiff was one, were abused by the officers and the sergeants.  He names four of the sergeants, three of whom he says at various times committed sodomy upon him against his will, and a fourth of whom subjected him, he says, to fellatio against his will.  The plaintiff says that at Westbrook an indecent advance was made to him by a named member of parliament.  After he succeeded in resisting that advance, he says, he was beaten by the deputy superintendent.  He says that at Westbrook he was subjected to cruel punishments over trivial things, or for no reason at all.  Those punishments included having his hair shorn, being required to perform "kangaroo jumps" for up to half an hour, being required to walk in circles for six hours, and being locked in a room for twenty-four hours.
           After the plaintiff was discharged from the care of the State Children Department he worked on sanitary and rubbish carts, in a timber yard, and in a milk factory.  Then he performed national service.  On 1 August 1956 he enlisted in the Australian Army and remained in the Army for twenty-one years.  He rose to the rank of sergeant in 1968.  He served overseas in Malaya for seven months and in Vietnam for thirteen months.  He was awarded four combat medals.  During his military service he occasionally had nightmares about Westbrook.  He felt depressed about what had happened to him there when it came to mind, as it did from time to time.  He felt uncomfortable and fearful in the company of other soldiers particularly when showering and in the sleeping quarters.  After his discharge from the Army he worked as a mechanic.  He has been a pensioner since about 1985.  The pension was granted because of physical disabilities and not because of any mental disorder.
           After the plaintiff was discharged from the Army he continued to have nightmares about Westbrook.  He had some outpatient psychiatric treatment for about one year following his discharge but no medication was prescribed.  The nightmares became more regular than before, as did his remembering Westbrook, about the time of the death, in March 1995, of his half-brother Albert with whom he began what he refers to as a "telephone relationship" in or about 1993.  He went to the funeral which was held in Chinchilla on 1 April 1995.
           On 11 October 1995 the plaintiff was interviewed by Dr Martin Nothling, consultant physician in psychiatry.  Dr Nothling recorded in his report, which is dated the same day, that he found the plaintiff to be suffering from a chronic post-traumatic stress disorder and to be in need of psychiatric treatment.  Dr Nothling's opinion was that the plaintiff had suffered from the post-traumatic stress disorder from the time of his being detained in Westbrook but that there had been quite "significant exacerbation" of it in the twelve months prior to the interview; in that period there had been a "significant deterioration" in the plaintiff's psychiatric condition.  Dr Nothling said in an affidavit put before me that within the last ten to fifteen years the "general medical community" had come to accept that sexual abuse can cause "lasting psychological damage", although psychiatrists specifically working in the field of sexual abuse were "most likely" aware of the connexion slightly in advance of the general medical community.
           It was only after consulting Dr Nothling that the plaintiff realised, he says, that his childhood experiences, in particular his term at Westbrook, had caused him to suffer from, as he puts it, "a lingering psychiatric disorder".  I see no reason to doubt the plaintiff on that point.  It is not completely clear when the plaintiff was an outpatient receiving psychiatric treatment, but it seems it was some time before the mental effects of sexual abuse were accepted by the medical profession and at all events long before a diagnosis of a disorder in his case would have been possible.
           I shall deal first with the plaintiff's application.
Section 31 of the Limitations of Actions Act 1974 is as follows:

"31.(1)  This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.

(2)  Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court—

(a)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

(b)that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.

(3)This section applies to an action whether or not the period of limitation for the action has expired—

(a)before the commencement of this Act; or

(b)before an application is made under this section in respect of the right of action."

Section 30 is an interpretation section which applies to s.31:-

"30. For the purposes of this section and sections 31, 32, 33 and 34—

(a) the material facts relating to a right of action include the following—

(i)the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;

(ii)the identity of the person against whom the right of action lies;

(iii)the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;

(iv)the nature and extent of the personal injury so caused;

(v)the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;

(b)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;

(c)a fact is not within the means of knowledge of a person at a particular time if, but only if—

(i)the person does not know the fact at that time; and

(ii)as far as the fact is able to be found out by the person - the person has taken all reasonable steps to find out the fact before that time.

(2)In this section —

"appropriate advice", in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts."

It was common ground before me that the period of limitation for the plaintiff's claim in tort expired on 24 December 1960, the plaintiff's twenty-fourth birthday. 
Since there is evidence which could prove that as a result of the plaintiff's being abused at Westbrook he suffered a chronic mental disorder and since there is evidence from which it could be inferred that that abuse resulted from the negligence of the first defendant, I conclude that the requirement of s.31(2)(b) has been satisfied in relation to the claim against that defendant, i.e., that there is evidence to establish the right of action in tort apart from a defence founded on the expiration of the period of limitation. I am not satisfied that the requirement of s.31(2)(b) has been satisfied in relation to the claim in tort against the second defendant, but it is convenient to defer giving my reasons for that conclusion until I deal with the second defendant's application. I should add that it would be possible to conclude in a case like this that there is evidence to establish a right of action apart from a defence founded on the expiration of a period of limitation even though the claimant's statement of claim should be struck out as deficient in pleading the cause of action, but no such discrepancy of result can arise here in my view: the plaintiff's case as pleaded is as far as it can be put on the evidence.
The next question that arises on the plaintiff's application is whether the requirement of s.31(2)(a) has been satisfied.
           There is no evidence of the plaintiff's having suffered any permanent physical effect of the ill-treatment he received at Westbrook, and it was not until after he consulted Dr Nothling that he became aware that he was suffering from a chronic mental disorder as a result of the ill-treatment.  That was a material fact relating to his right of action.  Dissecting it and putting it in the words of s.30 it can be seen as two facts:  the fact that the negligence causes personal injury (s.30(a)(iii)) and the nature and extent of the personal injury so caused (s.30(a)(iv)).  Even though it was a material fact, was it a material fact of a decisive character?  One must bear in mind the negative proposition implicit in the legislation (see Sugden v. Crawford [1989] 1 Qd.R. 683, at p.685 per Connolly J., with whom Shepherdson J. concurred) explained by Macrossan J., as he then was, in Moriarty v. Sunbeam Corporation Limited [1988] 2 Qd.R. 325 at p.333:

"In cases like the present, an applicant for extension discharges his onus not simply by showing that he has learnt some new fact which bears upon the nature or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it.  He must show that without the newly learnt fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it.  That is what the application of the test of decisiveness under s.30(b) comes down to:  Taggart v. The Workers' Compensation Board of Queensland [1983] 2 Qd.R. 19, 23, 24 and Do Carmo v. Ford Excavations Pty Ltd (1984) 154 C.L.R. 234, 251 per Deane J."

Those words were adopted with approval by Connolly J., with whom Ryan and Cooper JJ. agreed, in Berg v. Kruger Enterprises [1990] 2 Qd.R. 301, at p.305, and by Lee J., with whom McPherson and de Jersey JJ. agreed, in Byers v. Capricorn Coal Management Pty Ltd [1990] 2 Qd.R. 306 at p.309.
           Before the deterioration in the plaintiff's condition following Albert's death a reasonable person in the position of the plaintiff, knowing what there was then to know about the condition, in my view would not, even with the appropriate medical and legal advice, have appreciated that there was a worthwhile action to pursue or that it should be pursued in the sufferer's interests.  That is because until Albert's death the symptoms were only mild.  It was only after Albert's death that such a reasonable person, knowing what there was then to know about the condition and with the benefit of appropriate advice, would have appreciated those things.  The material fact was then of a decisive character.
The next issue for consideration under s.31(2)(a) is whether that fact was not within the means of knowledge of the plaintiff until a date after the commencement of the year last preceding the expiration of the period of limitation for the action. As I have said, it was not until after the plaintiff consulted Dr Nothling that he became aware of the fact, or, to use the phrase used in s.30(c)(i), knew the fact. Furthermore the fact was not able to be found out by the plaintiff, so I find, until after Albert's death. It was not long after that that the plaintiff consulted Dr Nothling, after being advised by a person at a meeting of an organization called Formerly in Children's Homes (F.I.C.H.) and by his solicitors. In those circumstances I conclude that he took all reasonable steps to find out the fact after Albert's death and those steps culminated in his receiving the advice in Dr Nothling's report of 11 October 1995. It follows that the requirements of s.30(c)(i) and (ii) have been satisfied.
I therefore conclude that the plaintiff has established pursuant to s.31(2)(a) that a material fact of a decisive character relating to his right of action in tort was not within his means of knowledge until on or after 11 October 1995.
Having satisfied the requirements of s.31(2)(a) and (b) in relation to the claim in tort against the first defendant the plaintiff is entitled to seek the exercise of the Court's discretion to order that the period of limitation for his action in tort against that defendant be extended so that it expires at the end of one year after 11 October 1995 and therefore at least until the date of the issue of the writ. Since the plaintiff has failed to satisfy the requirement of s.31(2)(b) in relation to the claim in tort against the second defendant, he must fail on his application against it. In case I am wrong in that conclusion, however, I shall consider also the question of the Court's discretion in relation to the claim against the second defendant.
           Central to the plaintiff's case in tort are his allegations concerning his being sent to Westbrook, what happened when he was conveyed there, and his treatment when he arrived there.  At the heart of those allegations are allegations against the person or persons who sent him to Westbrook, the officer who escorted him there, and those in charge of Westbrook, (the superintendent and deputy superintendent and to a lesser extent the other officers).  It was the deputy superintendent, he says, who in the presence of the superintendent abused and assaulted him on his arrival.  An inference is open that the atrocities allegedly committed by the sergeants were perpetrated under a system, if not instituted, at least continued by the officers in charge of the home.  The acts of the officer who brought him to Westbrook and of  the  member  of  parliament  were condoned by those in charge:  explicitly by the deputy
superintendent and impliedly by the superintendent in the case of the officer who brought him to Westbrook, and impliedly by the deputy superintendent in the case of the member of parliament.
           The time that has elapsed since the events which the plaintiff alleges cause him to suffer the injury of which he complains is considerable:  at least forty-one years to the issue of the writ.  The Director of the State Children Department, and the superintendent and the deputy superintendent of Westbrook at the relevant time are all dead, having died in 1961, 1969, and 1979 respectively.  The man who allegedly escorted the plaintiff to Westbrook died in 1977.  The member of parliament died in 1973.  One of the sergeants, the one who allegedly subjected the plaintiff to fellatio, died in 1991.  The first defendant has no record of two of the others and there is nothing further before me about the fourth.  Two of the Salvation Army officers - the two the plaintiff says beat him - are alive but are in their eighties:  one is eighty-seven and the other eighty-one.  The second defendant has no record of the Salvation Army officer who allegedly told the plaintiff that he was to be taken to the shipyard.  There is no evidence before me that anyone other than the plaintiff claims to remember anything of the events complained of.
           The lengthy period that has elapsed since the events in question, the inevitable fading or complete loss of memories, and the deaths of important potential witnesses constitute such obstacles to a fair trial that I conclude that the plaintiff has failed to discharge the onus which rests upon him - see Brisbane South Regional Health Authority v. Taylor (1996) 70 A.L.J.R. 866 - of satisfying the Court that the discretion provided for in s.31(2) should be exercised in his favour.
           It was submitted on behalf of the plaintiff that the fact that a claim in equity will proceed in a case like this makes it just and reasonable to extend the period of limitation for a claim in tort:  see Williams v. Minister at pp.510-511 and 515 per Kirby P. Since, however, the issue of laches has yet to be resolved such a consideration could at best for the plaintiff, in my view, result in a deferment of the decision on his application until the trial. A determination in his favour on the basis of a claim in equity which could be defeated by the defence of laches could hardly be described as just or reasonable. At all events the parties have had a full opportunity to put everything they wish to before me bearing on the merits of the plaintiff's application and I see no proper basis for putting off the decision on it to another day.
           I shall therefore refuse the plaintiff's application.
           I now turn to the second defendant's application.  Under Order 22 Rule 31 of the Rules of the Supreme Court the Court or a judge may order any pleading to be struck out on the ground that it discloses no reasonable cause of action.
           The plaintiff's claim to equitable relief from the second defendant proceeds on the premiss that the facts pleaded in paragraphs 1 to 18 of the statement of claim are proved (paragraph 21) and rests upon the allegations that the second defendant assumed the position of a fiduciary in relation to the plaintiff (paragraph 23), that as such the second defendant owed the plaintiff certain specified duties (paragraph 25), that the second defendant breached those duties by sending the plaintiff to Westbrook and allowing him to remain there (paragraph 26(b)), and that as a result of those breaches of fiduciary duty the plaintiff suffered injury, loss, and damage (paragraph 27).  (I should mention that there is a misprint in paragraph 26(b) in which the first defendant is referred to when clearly the second defendant was intended.)  The second defendant has denied each of those allegations and has pleaded that the plaintiff has been guilty of laches.
           As is pleaded in paragraph 6 of the statement of claim, by operation of s.10 of the State Children Act 1911, the Director of the State Children Department was at all times material to the action the guardian of all State Children to the exclusion of any parent or other guardian.  The expression "state child" was defined in s.4 of the Act to mean inter alia "[a] neglected child . . or any other child received into or committed to an institution or to the care of the Department, or placed out . . under the authority of this Act".  It was pleaded in paragraph 11 of the statement of claim that the plaintiff was admitted as a state child on 11 November 1937, and was conceded before me on behalf of the plaintiff that the plaintiff was at all material times a state child.  It was also conceded on behalf of the plaintiff that the second defendant did not control or administer Westbrook.  In those circumstances the second defendant had no power to send the plaintiff to Westbrook, even though the plaintiff says he had been threatened by one of the officers with being sent there.  The second defendant had no power to detain the plaintiff at, or remove him from, Westbrook and hence no power to allow him to stay there.  Once the Director of the State Children Department removed the plaintiff from the Salvation Army in April 1953, as he was entitled to do, the Salvation Army had no further responsibility for or duty to the plaintiff.

           It follows that since the plaintiff's case is based on his treatment after his removal from the Salvation Army, on the way to and at Westbrook, the statement of claim discloses no reasonable cause of action against the second defendant for equitable relief.  Had I concluded that the plaintiff's application should succeed I should have reached the same conclusion on the plaintiff's claim in tort against the second defendant, for in essence the same reasons as I have given for the claim in equity.
           The statement of claim, so far as it pleads a case against the second defendant, will be struck out.
           I shall invite submissions on the form of the order on the second defendant's application and costs.