Reid v The State of Queensland
[2010] QSC 212
•18 June 2010
SUPREME COURT OF QUEENSLAND
CITATION:
Reid v The State of Queensland [2010] QSC 212
PARTIES:
Kaye Maree Reid
(applicant)
-v-
State of Queensland
(respondent)
FILE NO/S:
104 of 2007
DIVISION:
Trial Division
PROCEEDING:
Trial
ORIGINATING COURT:
Supreme Court
DELIVERED ON:
18 June 2010
DELIVERED AT:
Supreme Court at Townsville
HEARING DATE:
7 June 2010
JUDGE:
Cullinane J
ORDER:
1. A declaration be made that at the time the proceedings were instituted in this matter the applicant was under a legal disability for the purposes of s 29 of the Limitation of Actions Act 1974 (Qld), such disability being infancy until 5 June 1983 and thereafter unsoundness of mind.
2. Alternatively, the limitation period in respect of the plaintiff’s cause of action arising out of the breach of duty by the defendant to the plaintiff in mid 1977 be extended so that it expires on 13 February 2007.
3. I declare the applicant has been under a legal disability for the purposes of s 29 of the Limitation of Actions Act 1974 (Qld) until 13 February 2007.
4. I give leave to the parties to make written submissions on the issue of costs within 14 days.
CATCHWORDS:
LIMITATIONS OF ACTIONS – PERSONAL INJURIES – EXTENSION OF TIME – where the applicant was sexually abused – where complaints about abuse suffered were made to the Children’s Services Department – where the applicant suffered from a serious psychiatric condition – where the applicant attempted suicide – whether the applicant was under a legal disability – whether an extension of time should be granted
Limitation of Actions Act 1974 (Qld)
NF v State of Queensland (2005) QCA 110
King v Coupland (1981) QR 121
COUNSEL:
K Fleming QC for the applicant
D Kelly for the respondent
SOLICITORS:
Dempseys Lawyers for the applicant
Crown Law for the respondent
There are two applications before the Court. One is an application for an extension of time pursuant to the Limitation of Actions Act 1974 (Qld). The other is an application for a declaration that the applicant was at all material times a person under a disability (s 29 of the Act).
The applicant, I think it can fairly be said, primarily pursued the former of these without abandoning the latter. The evidence in support of the latter was also relied upon in relation to the former.
The applicant was born on 5 June 1962.
As a child she suffered some degree of neglect and maltreatment from her mother.
When she was 10½ she was living at Mount Isa with her mother, stepfather and four siblings.
She describes how on Christmas Eve 1972, her stepfather sexually abused her for the first time. He attempted to insert his penis into her mouth. The applicant told her mother about this some days later and for a period he did not come near her again.
However approximately three months after the first incident he commenced to again sexually abuse her by placing his penis in her mouth or by procuring her to masturbate him. She says that there were some five occasions when he placed his penis in her mouth. On another occasion she awoke to find the stepfather standing beside the bed with his penis in front of her face and with semen over her face. On one occasion he attempted to have sexual intercourse with her but was not able to because the shower where both were at the time was too small for both of them to fully fit into.
In the course of a discussion with someone whom she had met through a friend, she disclosed what her stepfather had done to her. The girl to whom she spoke took her to see an officer of the Childrens Services Department who lived in the area. She spoke to him for some time and he told her to tell her mother that he wanted to see her. When she told her mother, her mother became very angry but went to see the officer taking the applicant with her. The applicant says that she believes "that Mr Johnson said that Wayne would have to see a psychologist and/or psychiatrist or Mr Johnson would report the matter to the police." It is not clear at what point she was told this but it seems likely that it was before the officer saw and spoke to the stepfather.
The stepfather remained in the house and if I understand the evidence of the applicant correctly (see R 1-35, lines 10 to 20) he continued to sexually molest her.
The applicant went to Ipswich and stayed with an aunt and uncle and attended school there in Grade 9 and Grade 10. The evidence suggests that she was there for approximately a year and a half and then returned to Mount Isa. During the time she lived at home after her return from Ipswich she says that her stepfather did not sexually assault her but sexually harassed her by trying to enter the shower while she was there or trying to see her in an undressed state by looking through a pipe leading to the shower.
She left home just after she turned 16 but then returned to the family home where she says that she was further sexually assaulted by the stepfather.
She married in December 1980. It seems that she resided for some time with her children at the home of her mother and stepfather. She says that she was further abused by him and that this continued until she finally left home when she was 28 years of age.
The applicant has given birth to five children. Four of these were to her husband and the last has been to her present partner.
The applicant has worked in a fish and chip shop and at Coles. She has obtained a driver's licence and has conducted a bank account.
There have been considerable difficulties in her life. She lost her children for some time when they were taken from her by the Department and it appears that one of the children was placed with foster parents and the applicant lost all contact with that child.
The applicant has lived a disturbed and for some times, a chaotic life. She has been hospitalised on two occasions (once in Bundaberg in 2001 and once in Townsville in 2005) following attempted suicides. She has abused alcohol and drugs and suffered hallucinations and delusions.
There are reports from psychiatrists, Professor James and Dr Varghese. Professor James was cross-examined on the application.
His opinion is that the applicant suffers from a virtually lifelong personality dysfunction of varying intensity with marked features of what is known in DSM IV as a borderline personality disorder but which is increasingly recognised in the professional literature as the consequence of a complex post traumatic stress disorder arising in childhood. If I understand his evidence correctly, he thinks that she has had this condition since about the age of ten. Major factors in it have been the initial ill treatment or lack of care by her mother followed by the sexual abuse of the applicant by her stepfather.
Professor James puts this matter in the following way:
"The circumstances giving rise to the trauma in Ms Reid's childhood are complex but centre most significantly on her sexual abuse, and that of her sisters, by their stepfather and the failure of her mother and others in authority to respond protectively and effectively to rescue her from her plight and to provide her with the appropriate treatment."
In cross-examination it was suggested to him that the plaintiff's psychiatric condition had been determined prior to the events when she was 10 ½ resulting in her approaching the officer of the Childrens Services Department. Professor James did not accept that the stepfather's treatment of her after that time had not played any role in the condition. For purposes of this application I am satisfied there is evidence which would establish the element of damage in the cause of action which she seeks to pursue.
The applicant, as I have said, suffered hallucinations and delusions and it appears was as a result of this, diagnosed as suffering from schizophrenia. Neither Professor James nor Dr Varghese thinks that she is schizophrenic. Professor James says that such symptoms are now recognised as consistent with the type of personality damage which he describes in his reports.
In 2001 the applicant was living in Bundaberg where she had moved with her present partner. In 2001 she was admitted to the Bundaberg Hospital as a result of the psychotic episode or episodes that I have referred to.
In late 2003, she approached the police at Bundaberg to make a complaint against her stepfather. It appears that at this time she was receiving guidance and support form a counsellor who encouraged her to do this and also to institute proceedings against the Department. She saw a police officer in October 2003 and made a statement about the matter.
At some time one of her sisters had complained to the police about the stepfather's abuse of that sister and the applicant understood that her complaints about the stepfather were to pay some role in the matter initiated by her sister.
The family appears to have moved to Townsville at some time in 2004. There was a child of the relationship with her partner by this time.
Whilst in Townsville in early 2005 the applicant was again admitted to hospital following an attempt on her life. There appears in the entry date of 30 March 2005 (the inpatient notes) under the heading "Stressors":
"Awaiting court case - is charging stepfather with past sexual abuse from her childhood is also suing a government organisation for not acting on a statement about childhood sexual abuse when she was 11 years old."
No proceedings had been instituted at this time and she had not seen a solicitor. This entry, it appears, refers to the proposed action which the counsellor had encouraged her to consider when she had been in Bundaberg.
The criminal proceedings against her stepfather were dealt with in May 2006. He pleaded guilty on an ex officio indictment to three offences concerning the applicant and these were apparently dealt with at the same time as the offences concerning her sister. He was sentenced to substantial terms of imprisonment.
In Exhibit 1 which is a document in the form of an affidavit which had not been filed, the applicant says:
"In early 2005, I was told that the Department of Children's Services may have been aware of the abuse but did nothing about it. I was told this when I attended Court for my sister's case against Wayne for the same treatment."
There appears to be some confusion about precisely when this occurred as the applicant at other times refers to having been told this when she went to court "here in Townsville for Joanne" a reference to her sister. However she ultimately accepted in cross-examination that it was in early 2005 that she was informed of this.
In exhibit 1 at paragraph 25 the applicant suggests that she had received this information prior to her admission to the Bundaberg Mental Health Unit for one week. Since this occurred in 2001, I think this quite improbable and indeed inconsistent with other parts of the evidence. I am satisfied that is likely that she learned this in 2005.
Professor James was asked to express an opinion as to whether the applicant was under a legal disability in terms of s 29 of the Act and thus addressed the question of unsoundness of mind.
In his report dated 9 July 2009 he expresses the following opinion:
"The disorder from which Ms Reid suffers is virtually lifelong, its manifestations, particularly in terms of intensity, tend to fluctuate over time, and do so particularly in response to changing life circumstances.
Bearing all the above in mind therefore it is my opinion that Ms Reid should be considered as being of unsound mind for the purposes of the Limitations of Actions Act 1974 (Qld) since at least from the age of 16. The repeated fragmentation and disruption of her sense of self; the emergence periodically of symptoms of major depressive disorder and of psychosis; and the symptomic abuse of potentially addictive substances all combined with her pervasive and enduring sense of distrust of authority would in my opinion made it impossible for Ms Reid to formulate sustain and pursue effectively any course (sic) of action with respect to the claim of compensation."
In an affidavit of one Clinton Kanther, a solicitor at the firm of solicitors acting for the applicant he relates that after telephone contact had been made on 18 December 2005 the applicant saw a solicitor there for the first time on 10 November 2005. He sets out the information which was provided.
Included in that is the following:
"The applicant was involved in Court proceedings and was required to attend Court in her sister's action against the stepfather for the same treatment. It was at this time that the applicant was told that there was a document depicting a statement by a Mr John Johnson stating that the Department of Children's Services were aware of the abuse but did not make any attempt to take any action."
Instructions were given to attempt to obtain the information and in particular any such document.
Following a conversation between counsel engaged on behalf of the applicant and an officer of the Director of Public Prosecutions a letter was forwarded seeking the brief of evidence in relation to the two matters that is relating to the applicant and the applicant's sister.
Some significant time elapsed before a letter from the Attorney General of 10 February 2006 was received and with it some documents of the Department of Childrens Services. A good deal of the documents provided were blacked out and it is apparent from their terms that they come from a file relating not to the applicant but to her sister. The document contains the following:
"Approximately two and a half years ago Kay Butt, an elder sibling of the abovenamed, was interviewed by myself in relation to aggravated assault and oral intercourse on her by her stepfather Wayne Stirling. The family were then living in a residence in Dianne Street, Mount Isa. On investigating this allegation Mr Stirling admitted that the accusations by Kay were true. However it was revealed that Mrs Stirling and the children were to continue residing with this man and that Kay was most reluctant to be involved in any criminal proceedings. A contract was therefore entered into with Mr Stirling that the matter would not be referred to the police for investigation on the understanding that he immediately sought psychiatric help.
A case review approximately two months later revealed that Mr Stirling was regularly seeing Dr Morrish, psychologist, community Health in conjunction with Dr Atkinson visiting psychiatrist. Dr Morrish indicated at the time that he had mapped out a programme for Mr Stirling and he did not consider that the Department need to be involved at that particular time."
These proceedings were instituted on 12 February 2007. The relevant date then for the purposes of the section of the Limitations of Actions Act 1974 (Qld) is 12 February 2006.
In its defence the defendant denies any breach of duty and indeed contends that the steps which were taken were adequate to discharge the duty owed by the Department to the applicant.
There is plainly evidence of a breach of duty to the applicant. The officer being aware of the serious nature of the allegations which had been outlined to him, instead of referring the matter to the police, entered into some arrangement with the stepfather that the matter would not be referred to the police provided he sought psychiatric help. The consequence was that the applicant and the stepfather remained together in the family home with the obvious risks to the victim, then a child of 15. This risk continued until she went to Ipswich to live with her relatives.
In my view there is evidence to satisfy the requirements of s 31(2)(b) of the Act.
The second issue is whether the fact relied upon is a material fact of a decisive nature. The relevant fact relied upon is the knowledge of the arrangement which the departmental officer entered into with the stepfather resulting in his remaining in the house with the applicant who was then 15. The applicant of course knew and at all times had known prior to the relevant date that no steps had been taken to ensure that she and her stepfather did not remain in the same house. It would also appear that she was told something at the time she went to the departmental officer in Mount Isa with her mother to the effect that the stepfather would be required to see a psychologist and/or psychiatrist otherwise the matter would be reported to the police.
However this is all that she would have known of what had occurred in relation to what she had told the department officer when she had spoken to him. The events thereafter so far as her knowledge is concerned would be consistent with an acceptance by the relevant officer of a denial by the stepfather of the allegations and a rejection of the allegations by the applicant. She would not have known of the agreement reached or the stepfather's admissions. The effect of her evidence is that she only became aware in 2005 that there was a record of the matter. It seems clear that the applicant's mother desired to have the stepfather remain in the house and she had reacted hostilely when the matter was first broached to her by the applicant. I do not accept the argument that on the information which the applicant had had from the time she was 15, she was in possession of such information that would have lead a reasonable person when she had attained her majority to take advice which would have established that she had a reasonable prospect of success resulting in an award of damages sufficient to justify the bringing of an action.
At least it seems to me that the matter falls into that category of case in which any contemplated action based upon the material then known would have been a risky undertaking and that it was only upon the obtaining of the details of what occurred in February 2006 that she had in her possession facts which would justify the taking of action.
In my view the facts which are relied upon, namely the agreement which was entered into with the consequence that the applicant and the stepfather would be together in the same dwelling amounts to a material fact of a decisive nature in the terms of the Act.
The remaining matter is whether the material fact was not within the applicant's knowledge prior to the relevant date.
Apart from what had occurred at the time it is clear that the applicant at some time received information that there were records of the Department showing that the Department had knowledge of the sexual molestation of the applicant by her stepfather. It is not clear who gave this information to her but it would seem to have arisen out of or in the course of the prosecution of the complaints against the stepfather. The applicant has fixed early 2005 as the time at which she received this information although at other times she seems to relate it to her presence in Townsville for the proceedings instituted by her sister. These were dealt with in May of 2006, well after the relevant date. However the applicant ultimately accepted early March 2005 as when she found out that the records showed that the Department had records of the abuse of herself and her sisters and had done nothing about it.
In early 2005 the applicant made an attempt on her life and was hospitalised and received treatment as a result. She has it appears, continued to receive assistance and is on medication.
I accept Professor James' opinion as to her psychiatric condition and I accept what he says as to the effect that this condition has upon her.
In particular I accept that it has not been possible for the applicant to "formulate, sustain and pursue effectively any course (sic) of action with respect to the claim of compensation".
The test to be applied on a consideration of whether the material fact of a decisive nature was within her means of knowledge as that term is defined in s.30(1)(c) of the Act, was discussed in NF v State of Queensland (2005) QCA 110. Keane JA (with whom the other members of the Court agreed) said at para 29:
"It is to be emphasised at s 30(1)(c) does not contemplate a state of knowledge of material facts attainable in the abstract, either by the exercise of 'all reasonable steps' or by the efforts of a reasonable person. It speaks of a state of knowledge attainable by an actual person who has taken all reasonable steps. The actual person postulated by s 30(1)(c) is a person who has taken all reasonable steps is the particular person who has suffered personal injuries. Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant. Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant. It seems to me that, if that person has taken all the reasonable steps that she is able to take to find out the fact and has not found it out, that fact is not within a means of knowledge for the purpose of s 30(1)(c) of the Act."
Given her psychiatric condition and her stated knowledge she could not reasonably have been expected to seek legal advice or pursue an action before she did.
The relevant fact here, namely the agreement which the departmental officer and the stepfather entered into in 1977 was I am satisfied, not within the means of knowledge of the applicant prior to the relevant date here.
The applicant therefore has satisfied the various statutory requirements for an extension of time under the Act. It was not contended that if she did so there were any discretionary considerations which ought to lead to the refusal of such an order.
As I have said earlier there is also an application for a declaration that the applicant has been under a legal disability at all relevant times.
Senior Counsel for the applicant was inclined to place little emphasis on this concentrating on the application under the Limitation of Actions Act 1974 (Qld). He did not however abandon the claim and it falls to be determined. Logically, it seems to me, it falls for consideration first.
Professor James' final report, a passage from which has already been set out was directed towards the question of whether the applicant has been under a legal disability for the purposes of s 29 of the Limitation of Actions Act 1974 (Qld). He was referred to a judgment of this court in King v Coupland (1981) QR 121 in which the considerations relevant to a determination of this question were stated.
His conclusions were that the applicant has been under a disability from the age of 16.
In a later report he has expressed the view that her condition has improved with treatment but especially with the disposition of the criminal proceedings against her stepfather in mid 2006.
The opinions expressed by Professor James in his final report at page 13 were adhered to by him under cross-examination and given his expertise I accept what he says.
It would seem to me that in these circumstances the appropriate order to make is the declaration which is sought, namely that at the time the proceedings were instituted in this matter the applicant was under a legal disability for the purposes of s 29 of the Act, such disability being infancy until 5 June 1983 and thereafter unsoundness of mind.
If I am wrong about this I would extend the period of limitation in respect of the plaintiff's cause of action arising out of the breach of duty by the defendant to the plaintiff in mid 1977 so that it expires on 13 February 2007.
I declare that the applicant has been under a legal disability for the purposes of s 29 of the Limitation of Actions Act 1974 (Qld) until 13 February 2007.
I give leave to the parties to make written submissions on the issue of costs within 14 days.
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