Stevenson v State of Tasmania
[2008] TASSC 27
•10 June 2008
[2008] TASSC 27
CITATION: Stevenson v State of Tasmania [2008] TASSC 27
PARTIES: STEVENSON, Rachael
v
STATE OF TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 616/2004
DELIVERED ON: 10 June 2008
DELIVERED AT: Hobart
HEARING DATE: 4 March 2008
JUDGMENT OF: Tennent J
CATCHWORDS:
Limitation of Actions – General – Statutes of limitations – Retrospective operation – Tasmania – Limitation Act 1974, s26(6).
Limitation Act 1974, ss2(2) and (3), 5, 5A, 26.
Jacobson v Taylor [1984] Tas R 197; Faulkner v Faulkner [2002] TASSC 107; A-G (Q) v AIRC [2002] 213 CLR 485; John Pfeiffer Pty Ltd v Rogerson [2000] 203 CLR 503, referred to.
Aust Dig Limitation of Actions [1]
Limitation of Actions – Postponement of the bar – Disabilities – In general – In the custody of a parent – Test to be applied.
Limitation Act 1974, ss2(2) and (3), 5, 5A, 26.
Verboon v McMahon [1970] VR 282; Goerner v Wood and Hunter [1974] VR 879; Todd v Davison [1972] AC 392, referred to.
Aust Dig Limitation of Actions [40]
Limitation of Actions – Postponement of the bar – Disabilities – In general – Incapable of managing own property and affairs by reason of mental disorder – Test to be applied.
Limitation Act 1974, ss2(2) and (3), 5, 5A, 26.
PY v RJS and Others [1982] 2 NSWLR 700; DW v JMW [1983] 1 NSWLR 61; Re MacGregor [1985] V R 861, referred to.
Aust Dig Limitation of Actions [40]
REPRESENTATION:
Counsel:
Plaintiff: C J Bartlett
Defendant: P Turner
Solicitors:
Plaintiff: Bartletts
Defendant: Director of Public Prosecutions
Judgment Number: [2008] TASSC 27
Number of paragraphs: 38
Serial No 27/2008
File No 616/2004
RACHAEL STEVENSON v STATE OF TASMANIA
REASONS FOR JUDGMENT TENNENT J
10 June 2008
On 30 November 2004, the plaintiff issued a writ against the State of Tasmania ("the defendant") by which she sought damages for personal injury. A subsequent statement of claim alleged in essence negligent treatment which gave rise to injury at the time of her birth on 13 March 1974 at the Devonport Hospital. The defendant raised defences by reference to the Limitation Act 1974 ("the Act") in pars26 and 27 of its defence, in the following terms:
"26 The Defendant says:
(a)That any cause of action (negligence and/or contract) was complete upon the birth of the Plaintiff.
(b)At that time the Plaintiff was in custody of her mother.
(c)By reason of the foregoing the Plaintiff's cause is barred by s5 of the Limitation Act 1974.
27 In the alternative, the Defendant says that:
(a)The Plaintiff ceased to be an infant on the 13 March 1992; and
(b)By reason of the foregoing the Plaintiff's cause is barred by s5 of the Limitation Act 1974."
These reasons are confined to the question of whether the plaintiff can successfully meet those defences.
The Act, s5, as it stood at the time of the hearing, relevantly provided as follows:
"5 (1) An action for damages for negligence, nuisance, or breach of duty (whether that duty exists by virtue of a contract or a provision made by or under an enactment or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance, or breach of duty consist of, or include, damages in respect of personal injuries to any person shall not, subject to this section, be brought after the expiration of a period of 3 years from the date on which the cause of action accrued.
(1A) This section applies only to an action where the cause of action accrued before the commencement day.
….
(3) Notwithstanding anything in the foregoing provisions of this section, upon application being made by the person claiming the damages referred to therein a judge, after hearing such of the persons likely to be affected by that application as he may think fit, may, if he thinks that in all the circumstances of the case it is just and reasonable so to do, extend the period limited for the bringing of the action for such period as he thinks necessary, but so that the period within which the action may be brought does not exceed a period of 6 years from the date on which the cause of action accrued.
(4) The powers conferred on a judge by subsection (3) may be exercised notwithstanding that the period limited by subsection (1) for the bringing of the action may have expired.
(5) For the purposes of this section personal injuries include any disease and any impairment of a person's physical or mental condition."
However, the section had been amended with effect 1 January 2005, that is, after the plaintiff's writ was filed. By the amendments, a new heading and subsection 5(1A) were inserted. The new heading was "Actions in respect of personal injuries incurred before the commencement day". The commencement day was defined to mean 1 January 2005.
There is no dispute that the plaintiff's cause of action arose at the time of her birth, that is on 13 March 1974. The Act came into force on 1 January 1975. When it was introduced, the Act applied to the plaintiff's cause of action: Jacobson v Taylor [1984] Tas R 197 and Faulkner v Faulkner [2002] TASSC 107. The Act, s5, therefore applied to the plaintiff. The 2005 amendment to the section did not affect the substance of that application. The effect of s5 was that the period within which the plaintiff should have made any claim was three years from 13 March 1974. By reference to s5(3), that period could have been extended to six years, that is to 13 March 1980. No application was ever made for such an extension.
In the circumstances, the plaintiff seeks to rely on the Act, s26. If that section applies to her, and if she is able to satisfy the Court as to any relevant disability and necessary facts, she may, notwithstanding the terms of s5, have the extension of time necessary to defeat the limitation defences raised by the defendant. When the hearing of this matter commenced, it became apparent that counsel were proceeding by reference to different versions of the Act, s26. That section was also amended with effect 1 January 2005. Counsel for the defendant contended that s26, as it stood prior to the amendments, was the relevant legislation, while counsel for the plaintiff contended s26, as amended, was that which applied.
At the time when the Act was introduced and also when the writ was filed, the Act, s26, relevantly provided as follows:
"26 (1) Subject to this section, if on the date when any right of action accrued for which a period of limitation is prescribed by this Act the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of 6 years, or in the case of any action for which a less number of years is prescribed by this Act as the period of limitation then such less number of years, from the date when the person ceased to be under a disability or died whichever event first occurred notwithstanding that the period of limitation has expired.
…….
(6) This section does not apply to such an action as is referred to in section 5 unless the plaintiff proves that he or (as the case requires) the person under the disability was not, at the time when the right of action accrued to him, in the custody of a parent. "
As to what constituted a disability, the Act, s2(2) and (3), provided at the time the writ was filed:
"2 (2) For the purposes of this Act a person is deemed to be under a disability while —
(a) he is an infant;
(b) he is incapable, by reason of mental disorder, of managing his property or affairs.
(3) For the purposes of subsection (2)(b) but without prejudice to the generality thereof a person shall be conclusively presumed to be incapable, by reason of mental disorder, of managing his property or affairs —
(a) …
(b) while a guardianship order or an administration order in respect of his estate is in force under the Guardianship and Administration Act 1995;"
Section 2(2) and (3) were in similar terms in 1975, save for amendments over the years to reflect changes in mental health legislation.
The only relevant change to the Act, s26, post the 2005 amendments, was to s26(6). It was altered to provide as follows:
"26 (6) This section does not apply to an aggrieved party proposing to bring an action under section 5 or 5A unless that aggrieved party proves that he or she or, as the case requires, the person under a disability was not in the custody of a parent or was in the custody of a parent who was a person under a disability at the time when the cause of action accrued."
The reference to s5A arose from another change to the Act brought about by the 2005 amendments, that is, the insertion of s5A. That specifically related to personal injuries which occurred on or after 1 January 2005 and provided for a different regime of limitation periods.
Whichever version of the Act, s26, is the relevant provision in this case, the plaintiff bears the onus of bringing herself within its scope. If she is unable to do so by reference to s26(6), then she cannot avail herself of the extended limitation period provided for in s26(1). Since the scope of s26(6) post the amendments is broader than that in the unamended section, it is necessary to determine which applies before proceeding further.
Does the "old" or "new" version of the Act, s26, apply?
To put this question in context, it is useful to identify the opposing contentions of the parties. At the time the plaintiff's cause of action arose, she was under a disability by reason of her infancy. That ceased on 13 March 1992. The plaintiff asserts that thereafter she was under a disability by reason of being incapable, as a consequence of a mental disorder, of managing her affairs. The plaintiff contends by reference to the amended s26(6) that:
-when her cause of action accrued she was not in the custody of a parent; or, in the alternative
-if she were found to have been in the custody of a parent at the time of her birth, that parent was herself under a disability; and
-whichever was the case, she was herself under a disability from the date of her birth and continues to be; and
-as a consequence, she is entitled to the benefit of the limitation period provided for in the Act, s26(1).
The State, on the other hand, contends by reference to the Act, s26, as it stood prior to 1 January 2005, that the plaintiff was in the custody of a parent at the time her cause of action arose and, as a consequence, the extended limitation period offered by s26(1) does not apply. The State contends that, since the limitation period provided for by the Act, s5, is three years with the possibility of an extension to six, the claim was irremediably statute barred in March 1980.
The essential difference between the two versions of s26(6) is that the "new" version allows greater scope for the plaintiff to bring herself within the ambit of the section in that she may prove either that she was not in the custody of a parent at the time her cause of action arose or, if she were, that parent was under a disability at the time. The earlier version allows only for proof of the first matter.
A number of facts in this matter are not in dispute. At the time of the plaintiff's birth on 13 March 1974, her mother was an infant aged 17 in that she was born on 7 September 1956. On 21 March 1974, the plaintiff's mother applied for the plaintiff to be made a ward of the State and this occurred on 27 March 1974. On 23 April 1974, the plaintiff was released from hospital into the care of prospective adoptive parents. She was subsequently formally adopted by those parents in 1975. The plaintiff turned 18 on 13 March 1992. On 26 September 2003, an order was made by the Guardianship and Administration Board in respect of the plaintiff. The order recited that the plaintiff was a person with a disability, was unable by reason of the disability to make reasonable judgements in respect of her estate, and that she was in need of an administrator. The Public Trustee was appointed by that order as administrator of the estate of the plaintiff subject to the caveat that she was to remain responsible for her pension entitlement. Subject to that, the powers and the duties of the administrator were to be those conferred by the Guardianship and Administration Act 1995, Div4, Pt7. The order was made for a period of three years, but has since been extended for another three years.
Counsel for the plaintiff submits that the "new" version of s26 operates retrospectively and that this is apparent from a reading of the Act, ss5(1A) and 26, together. He submits that the intent of the combined reading of those sections is that the plaintiff's rights which may have accrued in the past are expressly extended. He also submits that it matters not whether the change to the legislation is substantive or procedural, although he contended it was procedural.
The submissions of counsel for the defendant are predicated on an argument that the defendant had a "right" being a statutory bar afforded by the Act, ss5 and 26(6). He submits that "right" arose on 13 March 1980 and could only be overcome by the plaintiff proving that she was not in the custody of a parent on 13 March 1974. He contends that the amendment to s26(6) in 2005 removed that bar. The "right" asserted was submitted to be a "right" within the meaning of the Acts Interpretation Act 1931, s16(1)(c), which provides:
"16 (1) Where an Act repeals any other enactment then, unless the contrary is expressly provided, such repeal shall not –
(a) …;
(b) …;
(c) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under any enactment so repealed."
The consequence, he submits, is that the amendment cannot be permitted to remove the bar and can therefore only operate prospectively. Counsel's submissions encompassed references to a number of authorities. In general terms, counsel for the plaintiff did not join issue with the principles extracted from those.
In the context of workplace relations legislation, the High Court in A-G (Q) v AIRC [2002] 213 CLR 485 dealt with the question of "accrued rights" under legislation subsequently amended in the context of a Commonwealth interpretation provision similar to the above. The Court in that case determined that the new legislation effected a repeal of prior legislation, the parties had no accrued rights and even if they had, the amending legislation manifested a contrary intention. At par6, Gleeson CJ said:
"When a statute changes the law, the effect of the change upon existing rights, liabilities, claims, or proceedings is determined by the meaning of the statute. The common law developed rules of statutory construction as an aid to discovering that meaning. Such rules involved presumptions; but, being rules of construction, they were subject to any contrary intention evinced with sufficient clarity in the statute. When expressed in summary form, those rules distinguished between retrospective and prospective effect, and between procedural provisions, and provisions affecting rights or liabilities. However, such distinctions are not always clear-cut. The terms retrospective and prospective may often be a convenient shorthand, but in a given case it may be necessary to identify more precisely the particular application of the alteration to the law in question. And, as the present case shows, there may be rights which, in their nature, are closely bound up with procedures and remedies."
He went on to say, without determining the issue, that even if the parties had such rights, then the contrary intention existed on the face of the legislation.
Kirby J in the same case said at par108:
"… it may be accepted that, in the past, as a matter of legal principle or policy, this Court has rejected a narrow view of the survival of accrued rights in the context of repealing legislation. Thus it has insisted that, except in statutes 'which affect mere matters of procedure', there is a presumption against retrospectivity of the operation of a repealing law that would affect an existing right or obligation. The presumption operates unless the language of the statute expressly or by necessary implication requires such a construction. Clearly, this is a beneficial and just principle. It is protective of accrued entitlements and obligations derived from statute. In some cases, such accrued entitlements and obligations might themselves give rise to constitutional protections, inapplicable in the present proceedings but affording another reason to maintain a strong presumption against retrospective operation of laws having effect on substantive rights. If the Parliament wishes to achieve such a consequence, then the general tendency demonstrated in several decisions of this Court obliges it to require the lawmakers to make their will known in an unmistakable way. I am sympathetic to this tendency. It is compatible with the treatment given by this Court to analogous questions."
As to whether the amending legislation in the present case could be determined to be substantive or procedural law, counsel for the defendant submits regard should be had to the case of John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503. He submits that case is authority for the proposition that a limitation provision which bars a remedy as, he says, the Act, s5 does, is to be considered substantive and not procedural law. While he concedes that case dealt with a forum issue, he submits nevertheless the proposition should apply as a statement of general principle.
In the text, Limitation of Actions The Australian Law, Peter Handford, the learned author, said at 13 (footnotes omitted):
"Limitation statutes were traditionally regarded as procedural, but the High Court in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 … held that for conflict of laws purposes the application of a limitation period was to be regarded as a question of substance, not procedure. Legislation in New South Wales, Queensland and South Australia expressly provides that limitation laws are substantive. To the extent that limitation statutes may now be regarded as procedural in nature, they are initially to be construed as having retrospective operation, in the sense that they apply to all proceedings commenced after the date on which the legislation came into operation. This is the case whether the facts giving rise to the proceedings occurred before or after the Act came into operation. If, on the other hand, a limitation statute is correctly characterised as altering substantive rights, the presumption against retrospective legislation operates and the statute applies only to proceedings in which the cause of action accrued after the date on which the legislation came into operation.
A limitation provision is to be characterised as procedural if it is either one enlarging time, and it takes effect before the right which is sought to be enforced became finally barred by effluxion of time; or one reducing time, and time is left within which proceedings may be commenced enforcing the right.
A limitation statute is characterised as substantive if it:
(1)enlarges the period of time in which proceedings may be brought in cases where the proceeding had already been rendered time barred, so as to allow the action to be brought within a new time; or
(2)reduces the period in which an action may be brought so as to deprive the plaintiff of time within which to institute proceedings."
The comments of the learned author would suggest the section now being considered is substantive and not just procedural law.
Against the statements set out above, the starting point must be to look at the wording of the Act, s26, in the context in which it appears post the 2005 amendments. The amendment to s5 and the insertion of s5A created a scheme whereby there were two, and not just one, limitation regimes, one relating to injury occurring before 1 January 2005, and one relating to injury occurring on or after that date. The amended s26(6), however, referred to actions under both ss5 and 5A (not 5(1A) as counsel for the plaintiff submits), and hence might apply to any action regardless of when the injury occurred. Did Parliament, however, intend that the "new" version of s26(6) should apply retrospectively, not only to an action relating to injury occurring prior to 1 January 2005, but also to an action relating to such an injury commenced by writ prior to that date? Section 26(6) provides that it does not apply to a party "proposing to bring an action under section 5 …". The ordinary meaning of that phrase would suggest that s26(6) is to deal with proceedings commenced after the amendments, irrespective of when the injury occurred. There was no need otherwise to add that prospective element to the wording of the section unless Parliament intended it to apply only to proceedings commenced after the amendment.
I am satisfied, in the circumstances, that the "new" version of s26(6) does not apply to the plaintiff's proceedings which were commenced in November 2004, that is, prior to the amendment taking effect. The consequence of that finding for the present proceedings is that there is an onus on the plaintiff to satisfy the Court that:
- at the time her cause of action arose, she was not in the custody of a parent; and
-thereafter she was under a disability of one type or another as defined by the Act until at least a date no earlier than three years prior to the issue of her writ.
Has the plaintiff satisfied the Court that she was not in the custody of a parent when her cause of action arose?
The evidence of the plaintiff's mother was that she became pregnant as a result of a casual contact with a man with whom she had no further or other relationship. Up to the birth of the plaintiff, she lived with her parents. From her own date of birth, she was 17 years old when the plaintiff was born. The plaintiff's mother was told by her own mother prior to the birth that the baby was to be adopted out. The plaintiff's mother went to hospital for the birth. She was not accompanied by her own mother, but it is unclear whether she went alone or with someone else. She had a vaginal birth, although she had been told she was to have a caesarean. None of her family was there and none came to see her while she was in hospital. The plaintiff was removed from her immediately after the birth. The plaintiff's mother did not feed the plaintiff or hold her. She did not express any milk for the plaintiff. The plaintiff's mother asked a nursing sister if her child was a boy or girl, because if it was a girl she wanted to keep her. She was told it was a girl and asked hospital staff to ask her mother if she could keep the baby. She was told no. She was also told the baby had some difficulties. She did not see the baby after the birth. She went to the hospital nursery to see if she could see her. However, the nursery was locked and she could not tell through the window which baby was hers.
The plaintiff's mother left the hospital two days after the birth without seeing the child. She caught a taxi to her married sister's home. A few days later she was taken to Burnie by her father for the purpose of signing forms relating to her formally giving up the child. No one actually went with her to sign the forms. She said she was forced to sign them by her sister. Her explanation for that was:
"Well because she had no one to look after her kids I had to sign mine away, because anything I done, I was trying to do the right thing for Rachael, but every time she left her husband, I was called to look after her children."
The plaintiff's mother did not see the child until well after the child became an adult. She had no involvement at all in the child's upbringing or support. She saw the child's father briefly in 1978. To the best of the plaintiff's knowledge he has never had any involvement with the child. His name does not appear on the plaintiff's birth certificate and his signature is not on any of the paperwork associated with the birth or adoption.
The question of whether an infant can be said to be in the custody of a parent is one of fact not law. In Verboon v McMahon [1970] VR 282, at 286, Adam J said:
"The underlying concept would seem to be that where a child is in the custody of the parent as distinct from some other person, his parent might, in the ordinary course of nature, be expected to interest himself in asserting his child's rights of action by litigation and consider himself to be under a duty to institute proceedings on his child's behalf notwithstanding possible liability for costs. The like confidence apparently is not to be reposed in a guardian other than a parent, who might happen to have custody of a child at the relevant time.
…
These considerations, together with the difficulties inherent in applying the conception of custody in any technical, legal sense to parents of adult children of unsound mind would predispose me to the conclusion that as used in the proviso to s23(1) custody refers to a state of fact rather than a state of law; to actual physical custody rather than any bare legal right to custody."
His Honour went on to say at 291:
"It is the exercise by a parent of the personal powers of care and physical control over a child which results in the child being in the custody of a parent – not some theoretically existing powers in a parent over a child regardless of any exercise thereof in fact."
Subsequent decisions of both the Supreme Court of Victoria, Goerner v Wood and Hunter [1974] VR 879, and the House of Lords, Todd v Davison [1972] AC 392, confirmed the same view.
In this case, the plaintiff's mother was aged 17 at the time of the birth. Her mindset prior to and at the time of the actual birth was she had been told her child was to be adopted and, when she asked, on finding the child was a girl, if she could keep the child, she was told no. The child was taken from her immediately after the birth. She left the hospital two days after the birth having never seen, fed or held the child. She shortly after signed papers handing over legal control of the child to authorities. As a matter of fact, there can be no conclusion other than she never at any stage exercised any level of care or physical control over the child. I am satisfied in the circumstances that, for the purposes of the Act, s26(6), the plaintiff was not in the custody of a parent at the time her cause of action arose.
Effect of finding that plaintiff was not in the custody of a parent when her cause of action arose
The consequence of that finding is that the Act, s26(1), may apply to the plaintiff. However, for it to do so, she must also satisfy the Court that she was under a disability, as defined by the Act, for the entirety of the period from the time her cause of action arose until no earlier than three years prior to the issue of her writ, that is 30 November 2001.
Existence of and period of disability
There is no argument the plaintiff was under a disability as a consequence of being an infant until 13 March 1992. The plaintiff's case is that she was under a disability throughout the intervening period and continues to be so by reason of an intellectual disability. The plaintiff therefore has an obligation to satisfy the Court at the very least that she was incapable, by reason of mental disorder, of managing her property or affairs throughout the period from her 18th birthday through to at least November 2001. The evidence relied upon by the plaintiff is her own evidence, both by affidavit and orally, an affidavit of Brendan McManus, solicitor for the Public Trustee, a report of Mr Michael Marriot dated 17 September 2002 attached to that affidavit, and a report of Dr Colm Moore dated 6 December 2000, together with his oral evidence.
The plaintiff's affidavit contained no evidence about herself relevant to the issue of any mental disorder from which she may have suffered or its consequences. In the course of her oral evidence, she was taken through her life with a view to giving some detail about schooling and living arrangements The plaintiff attended school until she was 16 years old, at times attending special schools because, she said, "I had a disability and I was slower than a normal person." While the evidence was not specific, I infer she meant she was slower mentally. She appears to have attended a large number of schools. There was no other direct evidence of any mental disorder. She left school because she was pregnant and went to live with an aunt because her adoptive mother was in hospital. That first child was born in February 1991 when the plaintiff was 17. According to the plaintiff, she had three more children, one in 1995, the next a year or so later, and the last she thought in 2000. She lived in various places during this time and with different people. She married in 1996 but the marriage lasted only a matter of weeks. She lived with her adoptive father in Queensland for a period, but otherwise often shared accommodation with her adoptive mother. She received a disability pension because of difficulties with her arm and epilepsy. When she lived with her adoptive mother, her rent was taken automatically from her pension and her adoptive mother helped her pay bills and do the shopping. Her adoptive mother also operated her bank account because she could not remember pin numbers.
At some point, the plaintiff began contacting adoption agencies trying to contact her birth mother. She found her and came with her last three children and her adoptive mother to Tasmania and moved in with her birth mother. She and her adoptive mother subsequently moved to their own accommodation. However, at some point welfare authorities took her three boys from her care and at the same time the plaintiff and her adoptive mother began to live separately. There was no evidence as to why the plaintiff's children were taken from her. The removal of the children and the separation from her adoptive mother appears to have occurred after the plaintiff's writ was filed. The plaintiff cannot read or write properly and has never been able to.
Dr Colm Moore, a now retired psychiatrist, interviewed the plaintiff on 6 December 2000 for the purpose of providing a report to her solicitors then in Queensland. That report suggests that he was asked to assess the plaintiff's capacity at that time to instruct the solicitors. Dr Moore had never met the plaintiff before, she was unaccompanied, and he had no background written material. The plaintiff told him she had had six children. The first died at birth, the second died within its first year of life, the third was a daughter and then there were three boys. He estimated her mental age at approximately 10 (at the time she was 26), although there was no indication of any precise testing to confirm this. He in fact said in his report:
"I estimated that her mental age was approximately 10 and that her actual performance was markedly affected by her level of anxiety. If I was able to have her relax and settle, she coped with mental tasks reasonably well, if however she became flustered or anxious her ability declined dramatically."
He responded, in his report, to three specific questions. He said:
"The first centres upon her capacity in relation to managing financial affairs.
My advice is that managing financial affairs is an ongoing process, requiring a continuous process of attention, and it would be beyond Rachael's capacity to prudently manage her financial affairs over the long term.
However she is able to understand that the problems which she has with her left side, her fitting and her left shoulder are related to the difficult forceps birth, a phrase which she constantly repeated. In my opinion she is competent to instruct your firm."
In his oral evidence, Dr Moore accepted that the plaintiff had probably been troubled by an intellectual disability for "many" years. He was no more specific than that.
On 17 September 2002, a psychologist, Mr Michael Marriott, wrote a report in respect of the plaintiff for the disability services section of the Department of Health and Human Services in Tasmania. Mr Marriott assessed the plaintiff as being mildly intellectually disabled. He said in his report that:
" … it is not surprising that she finds it difficult to cope at times and is in need of appropriate support. She and her children have health problems including epilepsy but Ms Stevenson appears to be receiving specialist neurological treatment for this.
From my relatively brief interview with her I gained the impression that Ms Stevenson has repeatedly taken drug overdoses as a means of demonstrating her level of emotional stress and gaining assistance. She seemed to lack any insight into the risk this behaviour posed for the welfare of her children. She was under the impression that Child and Family Services were providing her with assistance seemingly without any awareness that her role as primary carer of her children may be being jeopardised by her suicidal gestures."
As already referred to in par11, on 26 September 2003, an order was made in respect of the plaintiff under the Guardianship and Administration Act. It may have been argued by the plaintiff's solicitor, although it was not, that the effect of the Act, s2(3)(b), as at the time that order was made, was that the plaintiff was conclusively presumed to be incapable of managing her own affairs. However, even had that been successfully argued, it would not have greatly assisted the plaintiff because it is not sufficient for the plaintiff to simply establish that she was under a disability at the time her writ was filed. She must go further.
I would have to say that the evidence put before the Court by the plaintiff for the purpose of satisfying me that she was under a disability by reference to a mental disorder was very limited. Dr Moore saw the plaintiff in December 2000. It was apparent from his report that he had been asked to determine whether the plaintiff was capable of giving instructions to her solicitors at that time. He determined that she was. Mr Marriott saw the plaintiff late in 2002. He had been asked to provide a cognitive assessment of her prior to a psychiatric assessment by Dr Sale. He determined that, as a result of testing, she was functioning at a mildly intellectually disabled level and 99 percent of the general population would do better than she did on the test. There was no report from Dr Sale and no evidence at all of any assessments or testing done at any earlier time. While the plaintiff cannot read or write properly, I cannot presume that is a consequence of an inability to learn. It could as easily be a consequence of what appeared to be her family's somewhat nomadic lifestyle during her school years.
In light of the evidence I do have, it is necessary to look at the approach to be taken in determining whether the plaintiff was, at or prior to her 18th birthday and throughout the intervening period to late 2001, incapable of managing her property and affairs and hence under a disability. Counsel for the plaintiff made no reference to any authority on the subject, confining himself to the facts. On the other hand, counsel for the defendant referred the Court to three authorities, two of which were decisions of the Supreme Court of New South Wales, and the third a decision of the Supreme Court of Victoria. These were PY v RJS and Others [1982] 2 NSWLR 700, DW v JMW [1983] 1 NSWLR 61 and Re MacGregor [1985] V R 861. In the Victorian case, Starke J was dealing with an application by an infirm person to have herself declared no longer incapable of managing her affairs. At 865 - 866, he addressed the principles to be applied to such a question. He said:
"In the light of the conclusions of the Senior Master the first matter to which I must address myself is the question of the principles of law to be applied. In PY v RJS [1982] 2 NSWLR 700 Powell J had to consider a similar problem under the Mental Health Act 1958 (NSW). In that Act a 'mentally ill person' means, inter alia, 'a person who is incapable of managing ... his affairs'. At p 702 Powell J said: 'It is my view that a person is not shown to be incapable of managing his or her own affairs unless, at the least, it appears:
(a) that he or she is incapable of dealing, in a reasonably competent fashion, with the ordinary routine affairs of man; and
(b) that by reason of that lack of competence there is shown to be a real risk that either:
(i)he or she may be disadvantaged in the conduct of such affairs;
or
(ii)that such moneys or property which he or she may possess may be dissipated or lost (see Re an Alleged Incapable Person (1959) 76 WN (NSW) 477); it is not sufficient, in my view, merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner: see In the Matter of Case (1915) 214 NY 199, at p 203, per Cardozo, J.'
… In other words, in the first instance it is said Powell J applied the objective test. However, in Re an Alleged Incapable Person (1959) 76 WN (NSW) 477 to which Powell J refers it is in my opinion quite clear that in determining the same question Myers J applied the subjective test. In DW v JMW [1983] 1 NSWLR 61 and CF v TCML [1983] 1 NSWLR 138 Powell J reaffirmed the principles he had enunciated in PY v RJS.
In s101 of the Mental Health Act 1959 (UK) the words used are 'a person is incapable by reason of mental disorder, of managing and administering his property and affairs'. In Heyward and Massey, Court of Protection Practice, 9th ed, p 22 the authors state: 'The question of degree of incapacity of managing and administering a patient's property and affairs must be related to the circumstances including the state in which the patient lives and the complexity and importance of the property and affairs which he has to manage and administer.' For this proposition Re CAF 1961 No 2367 (unreported, Wilberforce J, 23 March 1962) is cited as authority. …
However, I am far from satisfied that Powell J did lay down an objective test. … But if he did lay down an objective test then with the greatest of respect I believe him to have been wrong.
First of all, s28(1) of the Act itself appears to me to lay down the test. It speaks of 'managing his affairs', not the 'ordinary routine affairs of man'. The Court under the Act is exercising its protective jurisdiction in respect of individuals, not a class of persons albeit before jurisdiction is exercised it must be shown that the person is an infirm person for the purposes of the Act. In my opinion the decision in Re an Alleged Incapable Person and the passage in Heyward and Massey which I have quoted seem to support the proposition that the subjective test is the appropriate test."
The test adopted by Starke J would appear to be apposite to the Tasmanian legislation. The question is, therefore, applying that test, has the plaintiff satisfied the Court as to the existence of her disability throughout the relevant period? I am satisfied that the plaintiff has an intellectual disability and that she has probably had that disability for many years. I can be no more precise in any finding as to that given the lack of evidence. The plaintiff has lived an unstable lifestyle during her adult life. However, that statement could apply to many people and not necessarily only because they have an intellectual disability. The plaintiff has, when she has shared accommodation with her adoptive mother, had help from her to pay bills and do shopping. However, she has not always lived with her adoptive mother. There appeared to have been many periods when she did not, but there was no evidence that she was incapable of doing these things when her adoptive mother was not living with her.
The Guardianship order clearly excepted from the control of the Public Trustee, the management by the plaintiff of her pension. There was no evidence she had any assets or other income to be managed. The plaintiff has managed to care for children over the years. While her physical disabilities have caused difficulties with this, there was no material to suggest that she was incapable because of a mental disorder of caring for those children. In 2000, Dr Moore determined she was capable of instructing solicitors to sue on her behalf. In 2002, Mr Marriott suggested she may need help managing any compensation were she to receive it.
With respect, counsel for the plaintiff is asking the Court to make a number of assumptions. While those assumptions may be correct, the state of the evidence is such that they are largely unsupported by it. I am unable to be satisfied that the plaintiff was incapable of managing her property and affairs as a consequence of a mental disorder from the time of her 18th birthday continuously through to November 2001. The plaintiff bore the onus as to that and has not discharged it.
Summary of conclusions
(a) I am satisfied that the plaintiff was not in the custody of a parent at the time her cause of action arose.
(b)I am satisfied that the plaintiff was under a disability arising from infancy until 13 March 1992.
(c)I am not satisfied that, thereafter, and continuously until no earlier than three years prior to the filing of her writ, the plaintiff was under a disability in that she was incapable, by reason of a mental disorder, of managing her own property and affairs.
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