Tusyn v State of Tasmania (No 3)
[2010] TASSC 55
•30 November 2010
[2010] TASSC 55
COURT: SUPREME COURT OF TASMANIA
CITATION: Tusyn v State of Tasmania (No 3) [2010] TASSC 55
PARTIES: TUSYN, Gaylene Sandra, as administrator of the estate
of the late Walter Michael Tusyn
v
STATE OF TASMANIA
FILE NO/S: 38/2003
DELIVERED ON: 30 November 2010
DELIVERED AT: Hobart
HEARING DATE: 2 September 2009, 6 September 2010
JUDGMENT OF: Blow J
CATCHWORDS:
Limitation of Actions – Extension or postponement of limitation periods – Extension of time in personal injuries matters – Evidence to establish right of action – Whether proof required that applicant has a cause of action.
Limitation Act 1974 (Tas), s38A(3).
Commonwealth v McLean (1996) 41 NSWLR 389; Kaye v Hoffman [2007] TASSC 31, referred to.
Aust Dig Limitation of Actions [1084]
Limitation of Actions – Extension of time in personal injuries matters – Principles upon which discretion exercised – Change of circumstances after filing of application for extension of time.
Limitation Act 1974 (Tas), s38A.
Akermanis v Melbourne and Metropolitan Tramways Board [1959] VR 144; Posner v Roberts [1986] WAR 1; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 531, distinguished.
Aust Dig Limitation of Actions [1085]
REPRESENTATION:
Counsel:
Plaintiff: P W Tree SC
Defendant: P Turner
Solicitors:
Plaintiff: Bradfields
Defendant: Director of Public Prosecutions
Judgment Number: [2010] TASSC 55
Number of paragraphs: 45
Serial No 55/2010
File No 38/2003
GAYLENE SANDRA TUSYN as administrator of the estate of the late
Walter Michael Tusyn v STATE OF TASMANIA
REASONS FOR JUDGMENT BLOW J
30 November 2010
This application concerns the sexual abuse of an 11 year old boy, Walter Tusyn, by his foster father, Jack Long, in 1961. Mr Tusyn and the foster father are now both dead. In 1961, Mr Tusyn was in the care of Tasmania's Social Services Department. In 2003 he sued the State of Tasmania for damages, alleging that officers of that department were negligent in permitting the foster father to be entrusted with him; that he suffered psychiatric injury as a result of their negligence; and that he was entitled to recover damages in respect of that negligence. From the outset, the State contended that Mr Tusyn's claim was statute barred, on the basis that the applicable limitation period expired in 1977. Mr Tusyn contended that he had no information as to departmental officers having been negligent until 2002.
During 2008 I tried a number of the issues arising in the damages action, and determined that Mr Tusyn was sexually assaulted by Mr Long between approximately 19 March 1961 and 25 May 1961; that Mr Tusyn suffered psychiatric injury in consequence of those sexual assaults; and that, if any cause of action was available to him against the State, a separate cause of action accrued to him each time he was sexually assaulted in 1961, and the only causes of action in respect of which he could claim damages for psychiatric injury were ones that accrued to him in 1961: Tusyn v State of Tasmania (No 2) [2008] TASSC 76.
The Limitation Act 1974 was amended, with effect from 1 January 2005, so that the limitation period for a personal injuries claim is now three years "commencing on the date of discoverability": s5A(3)(a). Under s38A of that Act, it has been possible since 2005, in certain circumstances, for a person who "has a cause of action" that accrued before 2005 to apply for an extension of time. During May 2009, Mr Tusyn's solicitors filed an interlocutory application seeking such an extension of time for him. I heard that application on 2 September 2009 and reserved my decision. On 1 November 2009, while my decision was still reserved, Mr Tusyn died. With no living plaintiff, the proceedings abated, and it was not appropriate for me make a decision in relation to the application for an extension of time. Subsequently Mr Tusyn's widow obtained a grant of letters of administration of his estate. Any causes of action that were vested in Mr Tusyn have survived for the benefit of his estate: Administration and Probate Act 1935, s27(1)(b). The widow decided to proceed with the claim for damages and obtained an order substituting her as the plaintiff in the proceedings. I made that order on 2 August 2010. Counsel subsequently made further submissions in relation to the application for an extension of time in the light of the circumstances having changed when Mr Tusyn died.
If I refuse to grant an extension of time, it is possible that Mrs Tusyn could still take this case to trial and succeed. Although the State has pleaded a limitation defence, Mrs Tusyn contends that the limitation period did not begin to run until 2002, when her husband first received information as to the foster father's criminal record. She contends that the conduct of the relevant departmental officers and their successors resulted in her husband's rights of action being concealed from him by "fraud" within the meaning of the Limitation Act, s32(1)(b). If an extension of time is not granted, that will be an issue for determination at trial.
The Limitation Act 1974, s38A
Section s38A reads as follows:
"(1) A person who has a cause of action which accrued before the commencement day may apply to a judge for an extension of the period of limitation specified in section 5(1) to 3 years commencing on the date of discoverability.
(2) A judge may extend the period of limitation specified in subsection (1) having regard to —
(a)the justice of the case; and
(b)the matters mentioned in section 5A(5)(a), (b) and (c).
(3) A person may apply to a judge for an extension of the period of limitation specified in section 5(1) to 3 years commencing on the commencement day if that person —
(a)suffers from an injury or disease the date of discoverability of which occurred 6 or more years after the cause of action accrued; and
(b)has a cause of action which accrued before the commencement day; and
(c)proposes to rely on a date of discoverability which occurred before the commencement day.
(4) The judge may extend the period of limitation referred to in subsection (3) having regard to the matters set out in subsection (2)."
The term "date of discoverability" is defined in the Limitation Act, s2(1), as follows:
"'date of discoverability', in the case of an action for damages for personal injuries, means the date when the plaintiff knew or ought to have known that personal injury or death —
(a) had occurred; and
(b) was attributable to the conduct of the defendant; and
(c) in the case of personal injury, was sufficiently significant to warrant bringing proceedings".
The application for an extension of time was made pursuant to both s38A(1) and s38A(3). Mrs Tusyn contends that the date of discoverability was in 2002, but the State contends that it was in 1993. If it was in 1993, an order under s38A(1) would have the effect of extending the time for the commencement of proceedings to a date in 1996 and, since the writ was issued in 2003, be of no use to Mrs Tusyn. I will therefore say no more about s38A(1), and concentrate on s38A(3). As far as I know, this is the first contested application for an order under s38A(3).
An application under that subsection may be made only if pars(a), (b) and (c) thereof are all satisfied. Paragraph (a) is satisfied if the relevant date of discoverability occurred "6 or more years after the cause of action accrued". The relevant causes of action, if any, accrued in 1961. Since the State contends that the relevant date of discoverability was in 1993, and Mrs Tusyn contends that it was in 2002, it follows that there is no dispute that the relevant date was more than six years after any relevant causes of action accrued, and that s38A(3)(a) is satisfied.
In saying that, I am treating the words "after the cause of action accrued" in s38A(3)(a) as meaning "after the claimed cause of action accrued". Similarly, I am treating the words "has a cause of action" in s38A(3)(b) as meaning "claims to have a cause of action". In my view these provisions should not be read literally, and Parliament did not intend them to be read literally, for the following reasons:
· Literally speaking, if a plaintiff has a cause of action, all the necessary facts exist for the plaintiff to be entitled to succeed in the action: Cooke v Gill (1873) 8 LR CP 107 at 116; Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 245; Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581 at 595. Literally, holding that Mrs Tusyn had a cause of action would amount to holding that it had been proved on the balance of probabilities that she had an entitlement to damages.
· The facts entitling a plaintiff to damages are ordinarily required to be proved at the trial of the action, not on the hearing of an interlocutory application. On the hearing of an application for an extension of time for the bringing of an action, it is ordinarily appropriate for the court to assess the strength of the plaintiff's case, but not to make findings in relation to the facts that need to be proved at trial in order to establish liability.
· Section 38A was introduced by the Limitation Amendment Act 2004. In the relevant second reading speech (House of Assembly, 17 November 2004), the then Minister for Justice and Industrial Relations, Mrs Jackson, said that the Bill for that Act was based on the "Ipp Report" recommendations. There is nothing in that speech or the Ipp Report (Review of the Law of Negligence Report, 2002) to suggest that it was intended that findings of fact as to any matters entitling a plaintiff to maintain a cause of action were to be made before trial, in determining an application for an extension of time.
· If any of the facts upon which a plaintiff's claim is based had to be proved when the plaintiff applied for an extension of time, the findings made at that stage as to those facts would be binding on the parties at the trial of the action by reason of issue estoppel: Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853; Kuligowski v Metrobus (2004) 220 CLR 363 at par[21].
· If a plaintiff needed to establish all the facts giving rise to a cause of action at the time of applying for an extension of time, the purpose of the Limitation Act would not be promoted. One of the reasons that limitation periods exist is that it can be unfair to a defendant to allow an action to be brought long after the circumstances giving rise to it have passed: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 531 per McHugh J at 552. If the facts alleged to give rise to a defendant's liability had to be fully litigated on the hearing of an application for an extension of time, the court would be required to make determinations of fact, regardless of the impact of the passage of time on the quality of the available evidence, and of any consequent prejudice to the defendant. The Acts Interpretation Act 1931, s8A(1), requires an interpretation that promotes the purpose or object of an act to be preferred to one that does not. It is clear that the interpretations I have suggested promote the purpose or object of the Limitation Act, and that literal interpretations of the relevant paragraphs would not.
· In Commonwealth v McLean (1996) 41 NSWLR 389, the New South Wales Court of Appeal adopted a non-literal interpretation of the Limitation Act 1969 (NSW), s60I(1)(a). That provision precluded a court from granting an extension of time unless satisfied that the plaintiff "did not know the personal injury had been suffered"; or "was unaware of the nature or extent of personal injury suffered"; or "was unaware of the connection between the personal injury and the defendant's acts or omission" at a certain time. Handley and Beazley JJA, with whom Santow A-JA agreed, concluded, at 395, that that provision did not require proof of those matters as facts, commenting that that was not the intention of Parliament.
· In Kaye v Hoffman [2007] TASSC 31, Master Holt (as he then was) considered the meaning of the words "the conduct of the defendant" in the definition of "date of discoverability" in the Limitation Act, s2(1). He was dealing with an application for an extension of time under s38A(1). He concluded, at par[25], that those words did not require the facts to be proved upon the hearing of such an application, but that they referred to "the alleged conduct which is the subject of the claim or prospective claim". That conclusion was not challenged on appeal: Kaye v Hoffman (No 2) (2008) 17 Tas R 176 (Tennent J); Kaye v Hoffman [2009] TASSC 5 (Full Court).
When Mr Tusyn applied for an extension of time, he was suffering from a psychiatric injury or disease. The relevant date of discoverability occurred more than six years after his claimed causes of action accrued. His claimed causes of action accrued before "the commencement day", ie 1 January 2005. He proposed to rely on a date of discoverability which occurred before that day. Thus s38A(3)(a), (b) and (c), were all satisfied. Mr Tusyn had the right to bring this application, and Mrs Tusyn has the right to proceed with it.
I am required by s38A(2) and (4) to have regard to the following factors:
· Whether the passage of time has prejudiced a fair trial of the action: s5A(5)(a).
· The nature and extent of the plaintiff's loss: s5A(5)(b).
· The nature of the State's conduct: s5A(5)(c).
· The justice of the case: s38A(2)(a).
I will deal with those matters in a different order.
The nature of the State's conduct
The case against the State is that departmental officers sent Mr Tusyn to live with foster parents without checking sufficiently as to their suitability, particularly as to whether the foster father had a criminal record; that the foster father had been dealt with by courts for homosexual crimes in 1945, 1952 and 1959; and that a simple check would have revealed that record.
On 1 August 1945, Mr Long appeared before a Court of Petty Sessions at Hobart, charged with indecently assaulting a male under 14 years of age, and was committed to the care of the Mental Deficiency Board. On 2 July 1952 he appeared before a judge of this Court on a charge of indecently assaulting a male. It was ordered that he be detained in prison during the Governor's pleasure. On 12 March 1959 he again appeared before a judge of this Court, this time facing three charges of indecent practices between males. He was committed to the Government institution for mental defectives at New Norfolk.
The departmental file relating to Mr Tusyn forms part of the evidence before me. It contains no record of any police check having been undertaken before he went to live with the foster parents. The file contains a copy of a memorandum to the Director of Social Services, Gordon Smith, dated 25 May 1961, signed by Mr G V Bond, District Child Welfare Officer. That memorandum contains the following:
"1An anonymous telephone call to the Director indicated that the abovenamed boy's placement with Mr and Mrs Charles Edward Long was unsuitable, as Mr Long had been a patient at Lachlan Park, due to homosexual behaviour.
2I checked with the Police Department, and found that Charles Edward Long did not have a Police record. However, a Mr Jack Long (born 12/11/27), had four convictions for homosexual behaviour; one conviction as late as 1959. The CPO produced an epitome, Case 31 of 1941, which stated that Jack Long was born 12/11/27, and at the age of 13 years was convicted for the same pattern of behaviour.
3Mental Health records showed that a Jack Long was convicted and certified for homosexual behaviour, and had been a patient at Lachlan Park. Their records show that Mr Long was born Charles William …, and was legally adopted by Mr William Richard and Mrs Hilda Rose Long of Macquarie Street, Hobart, on the 17 July 1930. This information was confirmed by the Registrar-General's Department.
4The Electoral office shows Mr Charles Edward (known as 'Jack') Long living at 39 South Terrace Avenue Ralph's Bay.
5Mr Chandler identified Mr Jack Long form the photo at Police Headquarters as 'Mr Charles Edward Long', present foster-parent for Walter Tusyn.
6Mr Long was interviewed by Mr Chandler and myself last night (24th May). When I informed him that his identification was established as Mr Jack Long, he did not deny it or try to defend himself."
The evidence before me also includes an affidavit sworn by a Mr Daniels. He had a career in child welfare, commencing as a housemaster at Wybra Hall in March 1960, and concluding with him serving as Director of Community Welfare from 1976 until his retirement in 1993. According to him, the procedures for placing a child in foster care in the early 1960s were somewhat ad hoc, and were not the subject of any manual until one was produced in 1966. Child welfare officers would visit the homes of prospective foster carers, make some sort of assessment as to how they would be likely to cope with a foster placement, seek references from people in the community such as ministers of religion, and "generally endeavour to make a police check". There were no formal directions or instructions to do these things.
Mr Tusyn's file reveals the following. On 14 September 1960 a magistrate made an order committing him to the care of the State pursuant to the Infants' Welfare Act 1935. He was sent to Wybra Hall. On 9 February 1961 the Superintendent there, Mr Beamish, reported to the Director that it was his impression that the boy was ready for placement in a foster home. The Director agreed, and suggested a country placement. A child welfare officer named Jack Chandler made two visits to the home of Mr and Mrs Long and discussed the boy's proposed placement there with Mr Beamish. Mr and Mrs Long visited Wybra Hall with their two small daughters on 27 February 1961, stayed for dinner, and met the boy. Mr Beamish reported to the Director as follows:
"Mr & Mrs Long appear to be very decent citizens — Mr Long's occupation is motor lorry owner-driver, employed carting sand, etc for the Hobart Bridge. Mr & Mrs Long own a late model 'Zephr' [sic] car. Father, mother & children were clean, tidy & well mannered."
The Director approved the placement on 12 March 1961. Mr and Mrs Long collected the boy on 21 March 1961.
The evidence before me also includes a copy of a card containing information about Mr and Mrs Long. That card formed part of the department's records relating to foster parents. It shows their religion as "C of E". An entry dated 28 February 1961 reads:
"Comfortable homely place. Mr Long keen fisherman would like boy to accompany him on their fishing trips. Both Mr & Mrs Long are fond of children and like to have them around."
The card records Mr Chandler's approval of the couple as foster parents on 16 March 1961, four days after the Director approved the placement. Walter Tusyn was the only foster child ever placed with them.
One could properly infer that, if a police check had been undertaken before the boy left Wybra, that fact would have been recorded on the file, or at least in Mr Beamish's memorandum of 25 May 1961. Similarly, there is nothing recorded on the file to suggest that any references were provided by ministers of religion or anybody else, nor any checks made with anyone in the community as to the suitability of Mr and Mrs Long as foster parents. It could properly be inferred that no such references were provided, and that no such checks were made.
The nature and extent of the plaintiff's loss
Mr Tusyn's solicitors prepared draft particulars of his claim for damages in 2007. A copy of that document was annexed to an affidavit sworn by him. He sought damages under the following heads:
· General damages for pain and suffering and loss of amenities.
· Past and future economic loss.
· Loss of superannuation benefits, consequent upon past and future economic loss.
· Past and future expenses in respect of:
(a) treatment by a general practitioner;
(b) treatment by a psychologist;
(c) group therapy sessions, which ceased during 2007;
(d) pharmaceutical expenses; and
(e) related travelling expenses.
Obviously these claims all relate to loss and damage said to have been suffered by a man who is now deceased. He died intestate. I do not have evidence of the value of his estate. The distribution of his estate is governed by the Administration and Probate Act 1935, s44. He was survived by his widow and four adult children. Assuming that his estate was worth over $50,000, his widow is entitled to that sum plus one third of the balance of the estate, and each of his four children is entitled to one sixth of the balance of the estate. If Mr Tusyn was entitled to recover damages from the State before he died, his widow and children have suffered a loss in the sense that, unless and until those damages are paid, what they have inherited has been depleted.
In some Australian States there are legislative provisions that preclude damages for pain and suffering, loss of expectation of life, and loss of future earning capacity being recovered for the benefit of a deceased estate, eg Succession Act 1981 (Qld), s66(2); Administration and Probate Act 1958 (Vic), s29(2)(c)(ii); Survival of Causes of Action Act 1940 (SA), s3(a). However, in Tasmania, since 1983, the only relevant restrictions on the recovery of damages for the benefit of a deceased estate have applied only when the death of the deceased has been caused by the same act or omission that gave rise to the cause of action. Those restrictions are imposed by the Administration and Probate Act, s27(3)(c). That provision reads as follows:
"(3) Where a cause of action survives under this section for the benefit of the estate of a deceased person, the damages recoverable for the benefit of that estate —
(a)…;
(b)…;
(c)where the death of that person has been caused by the act or omission which gives rise to the cause of action —
(i)shall be calculated without reference to any loss or gain to that estate consequent on his death, except that a sum in respect of funeral expenses may be included;
(ii)shall not include damages for pain or suffering, for any bodily or mental harm suffered by him or for the curtailment of his expectation of life; and
(iii)shall be calculated without reference to the future probable earnings of the deceased if he had survived the consequences of the act or omission and without any allowance being made for the loss of his earning capacity that relates to a period after his death".
I have no evidence as to the cause of Mr Tusyn's death. For the purpose of making the required assessment of the extent of the plaintiff's loss, I will assume that s27(3)(c) does not apply. Counsel for the State has not suggested that it does. If the amounts claimed in the draft particulars in respect of future losses and expenses are reduced to take account of the fact that Mr Tusyn died when he did, it appears that the damages likely to be sought at trial would be as follows:
General damages $80,000 Economic loss (3.1.03 to 1.11.09; 356 weeks @ $1,500 per week after tax) $534,000 Superannuation losses (10% of $534,000) $53,400 General practitioners' expenses (7 years @ $600pa) $4,200 Psychologist's expenses ($23,490 as at 1.3.07 plus 138 weeks @ $185pw) $49,158 Group therapy expenses $1,040 Pharmaceutical expenses ($144 for one year, plus 8 further years at $180pa) $1,584 Related travelling expenses $8,640 Estimated total claim $732,022
Mr Tusyn said in his affidavit that the facts stated in the draft particulars were true. However some of the figures could well have been exaggerated. There is no detailed evidence before me to substantiate the assertions in the particulars as to lost earnings or expenditure. Even if Mr Tusyn's psychiatric condition resulted in a loss of earnings of $1,500 per week after tax, it seems extremely unlikely that such a loss would have resulted in a loss of superannuation entitlements of the order of $150 per week. For one thing, I have evidence that Mr Tusyn worked as an independent contractor much of the time. It is also significant that the draft particulars, as is customary, made no allowance for adverse contingencies such as unemployment, illness and so forth. If the action proceeds to trial and is successful, it is likely that hundreds of thousands of dollars will be recovered for the benefit of the estate. I cannot be more precise than that.
Whether the passage of time has prejudiced a fair trial of the action
There is no doubt that the passage of time has prejudiced the fair trial of the action to some degree. It is now over 49 years since the events giving rise to the claimed causes of action. It is appropriate to repeat the comments of McHugh J in Brisbane South Regional Health Authority v Taylor (above) at 551 as to the effect of delay on the quality of justice:
"Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo (1972) 407 US 514 at 532 , 'what has been forgotten can rarely be shown'. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose."
Mr Tusyn is not the only significant witness who has died. Gordon Smith, who was the Director of Social Services in 1961, has died. Mr Bond, the author of the memorandum of 25 May 1961, has died. Mr Chandler, who visited the foster parents' home and approved them, has died. Mr Beamish, who was the superintendent of Wybra Hall in 1961, was still alive last year, but he told the legal practitioner representing the State that he had no recollection of the relevant documents or the circumstances referred to in them. I assume he is still alive. He is 93 years old.
Mr Long's sexual abuse of Mr Tusyn is not mentioned in the departmental file, but otherwise the events of 1961 appear to be very thoroughly documented in it. Counsel for the State submitted that this is not "a document case" and that relevant individuals such as Mr Chandler, Mr Bond and Mr Smith, if they had survived, might have been able to give evidence casting light on the events of 1961 or placing them in a radically different perspective. However I have unchallenged evidence from a living witness that there were no standing instructions as to the investigation of the suitability of prospective foster parents, and the departmental file seems to be so thorough a record that, if any checks had been undertaken in relation to Mr Long other than those documented, one would expect them to have been referred to, at least after the removal of the boy from the foster parents. In those circumstances, it seems fanciful to think that information now missing might have provided a radically different picture of the conduct of the departmental officers responsible for Mr Tusyn's placement in 1961.
There is a dispute between the parties as to whether, in assessing the extent of the prejudice to the State, I should take into account the fact that Mr Tusyn has died. Counsel for Mrs Tusyn submitted that this application should be determined on the basis of the facts that existed at the time it was filed. He relied on Akermanis v Melbourne and Metropolitan Tramways Board [1959] VR 144; Posner v Roberts [1986] WAR 1; and Brisbane South Regional Health Authority v Taylor (above), in which Toohey and Gummow JJ said at 548:
"Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application".
However none of those cases concerned a situation where there had been a material change of circumstances between the making of the application and its determination. They were all concerned with the distinction between the circumstances when a time limit expired and those when an application was made to extend time.
There is nothing in the wording of the legislation to suggest that circumstances arising after the filing of the s38A application should be ignored. Under s38A(2)(a), I am required to have regard to "the justice of the case". Under s38A(2)(b), I am required to have regard to the matter mentioned in s5A(5)(a), namely "whether the passage of time has prejudiced a fair trial of the action". If circumstances change after the filing of an application to extend time, and before its determination, the new circumstances must be relevant to "the justice of the case". No doubt one of the consequences of "the passage of time" that Parliament had in mind when it enacted s5A(5)(a) is the fact that witnesses and parties die. If, with the passage of time, the original plaintiff in this action has died, and that has prejudiced a fair trial of the action, that is surely a matter that I must take into account pursuant to s5A(5)(a). Any prejudice resulting from the original plaintiff dying, and the administrator of his estate deciding to continue the action without him, could cause or contribute to the sort of injustice that limitation provisions are intended to prevent. Taking into account Mr Tusyn's death and its consequences would be consistent with giving the relevant legislative provisions their ordinary literal meaning, and with a purposive interpretation of those provisions. I therefore conclude that those matters must be taken into account.
It is therefore necessary to consider whether the State can receive a fair trial not only as to liability, but also as to the issues relevant to the assessment of damages, particularly in relation to Mr Tusyn's mental state and its effect on his earning capacity. Counsel for the State submitted that the State's defence of this action has been prejudiced by the death of Mr Tusyn, since it is no longer possible to have him independently psychiatrically examined, and since it will not be possible to cross-examine him. It is true that the State is prejudiced to some degree as a result of those facts. However Mr Tusyn was seen by two psychiatrists in the last decade of his life — Dr Burges Watson and Dr Sale. He consulted Dr Burges Watson in 2002 and was treated by him. Dr Burges Watson diagnosed him as suffering from post-traumatic stress disorder. Dr Sale saw him three times, the last occasion being in August 2007, for the purpose of this litigation. According to the draft particulars, Mr Tusyn also saw a clinical psychologist, Dr Taylor, on a weekly basis from early 2003 until at least 1 March 2007, by which stage her outstanding fees amounted to $23,490. He was also seeing a general practitioner. It should be possible to find out a lot about Mr Tusyn's mental state from the various professionals whom I have referred to.
It should not be overlooked that the State is now able to interrogate Mrs Tusyn, and that she is extremely likely to be a witness at the trial if the action proceeds. She and her husband had been married for over 40 years when he died. When he worked as an independent contractor, she looked after the financial side of the business. She should be able to provide nearly as much information as Mr Tusyn could about his psychiatric history and his earning capacity.
Mr Tusyn has sworn a number of affidavits for the purpose of these proceedings. He was cross-examined before me on 22 September 2008 in the course of a hearing relating to the determination of preliminary issues, and again on 2 September 2009 on the hearing of the present application. Now that he is not available as a witness, first-hand hearsay evidence of representations made by him would be admissible at the trial of this action: Evidence Act 2001, s63. The admission of such evidence would involve potential prejudice to the State since it could not be tested by the cross-examination of Mr Tusyn.
Despite the passage of time since 1961, the deaths of Mr Tusyn, Mr Smith, Mr Bond and Mr Chandler, and the dimming of Mr Beamish's memory and no doubt the memories of others, I consider that the State can still receive a fair trial of the action, particularly because of the availability of departmental records and of Mrs Tusyn. The matters that I have referred to no doubt disadvantage the State to some extent, but I do not consider that it is so disadvantaged that it cannot receive a fair trial.
The justice of the case
During the foster placement of 1961, the Director of Social Services was the guardian of Walter Tusyn by virtue of the Infants' Welfare Act, s8(1). He and his subordinates therefore, at least arguably, had a duty to take reasonable care for the boy's health and safety. The evidence strongly suggests that any such duty of care was breached, in that there was no standing instruction requiring departmental officers to undertake police checks or other appropriate checks in relation to prospective foster parents; and in that no such checks were undertaken in relation to Mr Long. As I see it, the only weakness in the case concerns causation. A judge or jury might not be satisfied on the balance of probabilities that a police check in relation to Jack Long would have revealed his criminal record, which was apparently under the name of Charles Edward Long. However a finding on that point might be made in the plaintiff's favour, and the allegations of negligence are not confined entirely to matters concerning police records. The action could succeed on the basis of negligence in failing to undertake any checks of any sort outside the Long family. Counsel for the State conceded, for the purpose of this application, that the plaintiff had an arguable case.
Pre-writ delay
Mr Tusyn gave evidence to the effect that, as a boy in 1961, he had no idea that he had any right to sue for damages. In 1961, under the Mercantile Law Act 1935, s3, the applicable limitation period was six years but, by virtue of s4 of that Act, time did not begin to run against an infant until he or she became "of full age" on his or her 21st birthday. As I understand it, the State contends that the applicable limitation period expired on Mr Tusyn's 27th birthday in 1977. He evidently gave no thought to suing Mr Long or anybody else until many years after that.
He apparently told no one about having been sexually abused until 1993. In that year, apparently as a result of Mr Tusyn being aware of some Family Court proceedings, he told a child protection officer that he had been sexually assaulted, and that he wanted to see his departmental file.
According to Mr Tusyn's evidence, he happened to set eyes on Jack Long, completely by chance, during 1986. According to the evidence of both Mr Tusyn and Dr Sale, he had been coping with life satisfactorily until then, but thereafter his mental health deteriorated, to such an extent that he sought professional help in 2002, and did not work after that year. He went to the Glenorchy CIB in June 2002 to report the crimes committed upon him by Mr Long. He was told that Mr Long had died, but he was also told of Mr Long's police record for the first time. It was after that, in about August 2002, that he saw a counsellor and Dr Burges Watson. According to Dr Sale, he saw himself as a victim until that point, but thereafter saw himself as a person who was ill. The writ was issued some six months later, on 4 February 2003.
In all the circumstances, I think Mr Tusyn had a reasonable explanation for not instituting this action earlier than 2003, particularly since he had no reason to suspect that any public servants had been negligent until June 2002.
Post-writ delay
The Full Court held in Norris v McGeachy [2010] TASFC 4 that delay between the filing of a writ and the making of an application for an extension of time is a relevant circumstance that weighs against the granting of an extension.
This is an unusual and difficult case. A number of valiant attempts have been made on behalf of Mr and Mrs Tusyn to overcome the limitation defence. I held in 2004 that Mr Tusyn was unable to pursue a claim for equitable compensation for breach of fiduciary duty, to which no limitation period would have applied: Tusyn v State of Tasmania (2004) 13 Tas R 51. Little seems to have happened in 2005. Assorted interlocutory steps were taken in 2006 and 2007. As I have said, there was a determination of some preliminary issues in 2008. That involved the rejection of a contention that a new cause of action arose when Mr Tusyn began to suffer a psychiatric injury. I made that determination on 26 November 2008. The present application was filed on 27 May 2009 after the marshalling of evidence to support it. It represents the third major attempt to overcome the limitation defence. If it fails, a fourth attempt will be made with the litigation of the "fraudulent concealment" question, to which I have referred.
No doubt this action could have been prosecuted at a faster pace than it has been over much of the last seven years. However, given Mr Tusyn's apparent psychiatric problems, and the unusual and complex nature of the case, I do not think the delays have been so inordinate that they should make any difference to the disposition of the present application.
Prejudice
As I have said, I consider that the State is not so disadvantaged that it cannot receive a fair trial. I also take into account, as a factor weighing in favour of granting an extension of time, the fact that the State did not take advantage of the opportunity to have Mr Tusyn independently psychiatrically examined during his lifetime. This action was pending for more than six years before he died. In my view it would have been reasonable for the State to have taken a more active role in advancing the action towards a trial.
Other factors
In assessing "the justice of the case", I am also taking into account the size of the claim, and the nature of the interests of Mr Tusyn's widow and children.
Conclusion
In my view it is in the interests of justice that there should be an extension of time. There is nothing to suggest that Mr Tusyn knew or ought to have known of any information suggesting negligence on the part of departmental officers before June 2002, several months before the issue of the writ. A fair trial is still possible because of the available documentary evidence and the availability of Mrs Tusyn. There is a reasonably arguable case, and the claim is a substantial one. In my view those factors outweigh the various factors that weigh against granting the application.
The only order provided for by s38A(3) is one extending the period of limitation to "three years commencing on the commencement day", ie until three years after 1 January 2005. Accordingly, I order that the period of limitation for the bringing of this action be extended to 1 January 2008.
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