Legal Services Agency v W HC Wellington CIV 2009-485-2191
[2010] NZHC 511
•21 April 2010
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2009-485-002191
BETWEEN LEGAL SERVICES AGENCY Appellant
AND W Respondent
CIV 2010-404-000078
AND BETWEEN LEGAL SERVICES AGENCY Appellant
ANDB Respondent
Hearing: 22-23 March 2010
Counsel: F M R Cooke QC and G D S Taylor for the appellants
R Chapman and S Benton for the respondent W and as amicus curiae in the B appeal
Judgment: 21 April 2010
JUDGMENT OF WILD J
Introduction
[1] The correctness of the approach of the Legal Aid Review Panel (the LARP)
in reviewing decisions of the Legal Services Agency (LSA) in historic abuse claims is the overall issue in these two appeals by the LSA. Although the answer depends
LEGAL SERVICES AGENCY V W HC WN CIV 2009-485-002191 21 April 2010
primarily on provisions in the Legal Services Act 2000 (the Act), their application necessitates considerable background, and consideration of several cases.
[2] More particularly, the LSA’s submissions on appeal posed six questions, namely whether the LARP had erred in:
(1)Holding that the LSA could not withdraw legal aid from an arguable case;
(2) Misinterpreting the directions to reconsider which Dobson J gave in
LSA v LAE & Ors HC Wellington CIV 2009-404-3401 6 August
2009;
(3)Failing to address the LSA’s analysis of the decided cases, and simply substituting its own view;
(4) Concluding that those decided cases were irrelevant; (5) Addressing only the Limitation Act issues;
(6)Failing to take into account the desire of claimants at least to have the abuse they allege acknowledged.
These questions overlap, and this judgment focuses on the first question.
Background
[3] In recent years New Zealand, in common with other comparable jurisdictions, has seen the bringing of claims by men and women in respect of physical, psychological and/or sexual abuse they allege they suffered many years ago. These claims are mainly against institutions, both state and private. Two particular decisions of the Court of Appeal gave impetus to these ‘historic abuse claims’. The first was W v Attorney-General [1999] 2 NZLR 709, in which the Court refined the principle of “reasonable discoverability”. In three separate
judgments Thomas, Tipping and Salmon JJ traversed the range of possible tests for determining when the limitation period for a cause of action in an historic abuse claim should accrue. Given the aims of limitation legislation, but also the realities for women victims of sexual abuse, the Court decided the cause of action should accrue only once the victim reasonably should have identified the link between her/his abuse and the resulting psychological damage. This established a test with both subjective and objective elements.
[4] The second case was S v Attorney-General [2003] 3 NZLR 450, in which the Court of Appeal upheld the decision of the High Court that the limitation period had expired unless s 24 Limitation Act applied. In other words, the limitation period is extended only where the claimant suffered from a disability. The Court held that the post traumatic stress disorder (PTSD) suffered by S postponed accrual of his cause of action for over a decade, notwithstanding that S had passed examinations and been employed in the interim.
[5] Some 940 historic abuse claimants have been granted legal aid, and some 80 applications for legal aid for such claims await decision. Of those 940 original grants, approximately 845 claims are still being pursued. Most of those claims are being conducted by one or other of two Wellington practitioners, Mr Roger Chapman and Ms Sonja Cooper, as the “provider” of the legal services for the claim. I have the benefit of Mr Chapman’s considerable experience as counsel for one of the respondents to these appeals, and as the Court’s amicus in the other appeal.
[6] By the end of 2007, four of the historic abuse claims had come to trial. In each case the plaintiff failed. The total legal aid granted to those four unsuccessful claimants was $1,426,125, or an average of $356,500 per case.
[7] As a result of those outcomes, and that cost, in February 2008 the LSA began reviewing its grant of legal aid in each of the 845 cases. The LSA wrote to the relevant providers, asking that they outline for the LSA how each claimant would be able to overcome the obstacles that the plaintiffs in the four decided cases failed to clear. For example, the LSA wrote on 20 May 2008 to Ms Cooper, in respect of W’s
case. Ms Cooper responded to the LSA by letter dated 20 June 2008. The LSA
relied on Ms Cooper’s analysis in making its decision.
[8] So far the LSA has re-assessed its grant of legal aid in 200 of the cases with these results: in 127 (including W’s case, on 8 July 2008) it withdrew legal aid; aid was continued in 30; a limited grant of legal aid (generally to fund the obtaining of psychiatric or psychological evidence) was made in 43 cases.
[9] 218 historic abuse cases are presently working their way through the LARP appeal process. In May 2009, the LARP heard 16 of those appeals, and allowed all of them except one. The LSA appealed the 16 decisions in which the LARP had reversed the LSA’s decision to withdraw legal aid. W’s case was one of those. Dobson J heard those appeals on 27 and 28 July 2009. In a judgment given on
6 August, Dobson J allowed the appeals in all but one of those cases (Rench), and remitted the 15 cases where he had allowed the appeal back to the LARP for reconsideration on the bases he detailed. As the Rench and W cases were shortly to come on for trial, the LARP promptly reconsidered W’s case. In a second decision on 7 October 2009, the LARP again reversed the LSA’s decision to withdraw legal aid. The result was that Ws’ case was funded by legal aid when it went to trial before Mallon J over 14 days in November last year. Mallon J has not yet delivered her judgment.
[10] B’s case was not one of the 16 considered by Dobson J. The LSA withdrew its grant of legal aid to B effective 1 July 2009, following reassessment. B appealed against that decision to the LARP, which reversed the LSA’s decision on 1
December 2009.
[11] Coincidentally, on 2 December 2009, Ronald Young J heard B’s application under s 4(7) Limitation Act for leave to bring his proceeding out of time. B alleged that he had been physically and sexually abused between 1975 and 1985. The first defendant (the Attorney-General, sued in respect of the Director-General of Social Welfare) accepted that B’s cause of action had not accrued until he turned 20 in
1989. The Attorney denied B’s allegation that he had suffered under a disability from 1989 until 2006. B’s evidence to the Court did not explain what had happened
to him between 1985 and 2006, and in particular why he had not sued until 2008. Rather than dismiss B’s application, Ronald Young J adjourned it to give B an opportunity to provide this explanation. The Judge’s minute of 2 December 2009 records:
...
[5] It became evident, having read the affidavits on both parties, that Mr B’s evidence did not provide adequate factual material as to what happened to him after his alleged abuse in 1985 through until 2006. While there were some generalised observations the detail of his life during that time was not provided. Without now going into detail I pointed out to counsel for the plaintiff that such material is essential to support Mr B’s application.
...
Subsequently, B reached a modest settlement with the Salvation Army and abandoned his claims against the Attorney. He filed a Notice of Discontinuance against both defendants on 10 February 2010.
[12] Thus, B’s would-be proceeding is at an end, and W’s awaits substantive judgment. However, the two cases were selected, not because of their substantive merits (or lack of them), but as a vehicle for testing the correctness of the LARP’s approach upon reviewing the LSA’s decisions withdrawing legal aid for many of the historic abuse claims, including the W and B cases.
[13] The LARP’s decisions in the W and B cases were made by the same three panel members (although the convenor of the LARP, Mr Julian Maze, signed each of those decisions, notwithstanding that he was not a member of the deciding panel).
[14] On 29 January 2010 the present convenor of the LARP (Mr Andrew Beck, appointed effective 11 January 2010) filed a memorandum in the B appeal recounting the background set out above, and advising the Court that the LARP proposed deferring consideration of any further reviews of the LSA’s decisions withdrawing aid in historic abuse claims until it had this judgment.
Statutory provisions
[15] Fundamental to these appeals is s 54(1) of the Act:
An aided person or an applicant for legal aid may apply to the Review Panel for a review of a decision of the Agency referred to in subsection (2) on the grounds that the decision is –
(a) manifestly unreasonable; or
(b) wrong in law.
Amongst the decisions listed in s 54(2) is a decision by the LSA to withdraw a grant of legal aid.
[16] The LARP must exercise its s 54 power of review in the light of at least these three other sections in the Act:
3 Purpose of Act
The purpose of this Act is to promote access to justice by –
(a)providing a legal aid scheme that assists people who have insufficient means to pay for legal services to nonetheless have access to them;
...
9 When legal aid may be granted: civil matters
...
(4) The Agency may refuse to grant legal aid to an applicant in any of the following circumstances:
...
(d) in the case of original proceedings,-
(i)the applicant’s prospects of success are not sufficient to justify the grant of legal aid; or
(ii) the grant of legal aid is not justified, having regard to the nature of the proceedings and the applicant’s interest in them (financial or otherwise), in relation to the likely cost of the proceedings; or
(iii) for any other cause where it appears unreasonable or undesirable that the applicant should receive legal aid in the particular circumstances of the case.
26 Withdrawal of, or amendment to, grant of legal aid: civil matters
...
(2) In relation to a civil matter, the Agency may at any time withdraw legal aid from, or amend a grant of legal aid to, an aided person in any of the following circumstances:
(a)the aided person is no longer a person who would be entitled to that grant of legal aid, by virtue of any of the provisions of sections 9, 10, or 11.
...
Section 27 sets out the process for withdrawal of a grant of legal aid. There is no suggestion that the LSA has not followed this.
LSA v LAE & Ors
[17] For the purposes of these appeals, Dobson J’s judgment can be summarised under five headings:
•Section 54 standard of review: The s 54(4) standard of manifest unreasonableness is well settled. It is only attained where the LSA’s decision is “clearly and unmistakably unreasonable”. The threshold for intervention by the LARP is a high one, implying that Parliament intended there should be a degree of tolerance about decisions of the LSA because it was exercising a discretion. The s 54 right of review by the LARP is not akin to a full right of appeal: Legal Services Agency v Fainu (2002) 17 PRNZ 433; Legal Services Agency v Tana HC Whangarei AP26/02 9 December 2002 O’Regan J and Legal Services Agency v G HC Wellington AP190/01 30 April 2002 Doogue J ([69]).
•Reconsideration on basis of available information: The LSA is entitled to evaluate the prospects of success only on the basis of the information then available to it. If the LSA cannot re-assess legal aid without having all the evidence that might be called at trial, it would be precluded from ever reviewing the grant of legal aid pre-trial ([76]- [79], [170]a)).
•Rigorous analysis of prospects: The LSA’s task is to measure the plaintiff’s prospects of success on an objective and reasoned basis. Assessments of the reliability and/or credibility (of proposed evidence) need to be objectively evaluated and justified. If this were not the position, the consequence would be that all cases would inevitably have to be funded to trial. But the LSA is not required to recognise the “inevitability” that an arguable case will have to be determined by the Court ([86]-[87], [131], [170]b) and c)).
•Relevance of the decided cases: The decided cases demonstrate that the Court will “test with a robust level of cynicism” claims by plaintiffs and psychiatric experts to be called by them that those plaintiffs had suffered under a disability preventing them suing earlier and/or that circumstances had prevented those plaintiffs reasonably discovering the connection between the defendants’ actionable conduct and the harm the plaintiffs now claimed had flowed from it. It appears that “a substantially better standard of evidence to support such claims will be needed than was previously considered appropriate in allowing those cases to go to trial”. However, the LSA cannot reason, that simply because the plaintiffs in the decided cases failed, so too will the plaintiff in the case being reconsidered. Dobson J pointed out at [106] that:
... a reasoned, objective reconsideration would need to recognise the fact-specific context of the judgments, and analyse the extent of similarities and differences before reaching any view on the relative likelihood of those outcomes representing a reliable guide to the outcome in (the case being reconsidered).
Applying the test suggested in Timmins v LARP [2004] 1 NZLR 708 to which he had earlier referred (in [7] and [11]), Dobson J observed at [121]:
... I would not expect a reasonable self-funded litigant to discontinue such proceedings if his adviser’s analysis did not more than advert to a consistent series of failures in other historic abuse cases. Such a notional litigant would reasonably expect an analysis of why failures in those cases rendered the prospects in his or her own case materially worse than they had previously been perceived.
([89], [106] and [121])
•Own analysis of legal principles: The LSA is entitled to undertake its own analysis of the legal principles relevant to historic abuse claims without obtaining, from an outside adviser, an “adequately qualified opinion”. This recognises that the LSA has built up, among its own (internal) advisers, a level of expertise in monitoring the large number of historic abuse claims for which it granted legal aid ([125]-[127], [171]).
[18] Mr Cooke further condensed these points by recognising that Dobson J had held the LSA cannot say “the plaintiffs in the decided cases failed – so you will too”. It cannot decide on that “abstracted” level, or on the basis of such a superficial comparison. The much more careful, objective and reasoned factual comparison described by Dobson J is required. It is against that background that the LARP’s approach in the further decisions under appeal is to be considered.
The LARP’s approach that arguable cases must proceed
[19] The LSA contends that the LARP’s decisions in B and W perpetuate the LARP’s erroneous approach, namely that the LSA cannot withdraw legal aid if the plaintiff has an arguable case.
B’s case
[20] In B’s case the LSA points to [23]-[25] of the LARP’s decision:
[23] In withdrawing the Applicant’s grant of aid, the Agency has effectively determined that the Applicant cannot establish he was under a disability. In terms of the judgment in Legal Services Agency v LAE & Ors, the Agency is entitled to do that. However, it must apply the correct test. What this test is was discussed in Hurring v The Attorney-General (HC Wellington CIV 2006-045-1281 6 October 2008, Simon France J) ...
[24] In the Applicant’s case the Agency is really in the position of the court on a strikeout application. The Agency has to be satisfied that the Applicant’s cause of action cannot succeed. If the Applicant can establish there is an arguable case that he was under a disability, then it would be wrong in law for the Agency to withdraw aid based on grounds of prospects of success on this point.
[25] ... The Panel is of the view that the Applicant can establish there is an arguable case that he was under a disability. For the reasons set out above, the Agency’s decision on this point is manifestly unreasonable.
[21] I agree with Mr Chapman that this misconceives the LARP’s decision. The Discussion section of the decision deals successively with limitation/disability ([16]- [25]), reasonable discoverability ([26]-[27]), causation ([28]) and cost versus benefit ([29]-[32]). It cites Hurring as the test applicable on an application for leave to bring a proceeding founded on the applicant suffering from a disability. That is correct. However, the LARP rejected, as “illogical and fundamentally flawed” or “logically flawed”, the LSA’s rejection of the psychiatric opinion proffered by B. The opinion was from Dr Peter Dean, a consultant psychiatrist, dated 10 February 2009. Dealing with disability, Dr Dean reported:
Mr B first became aware of the possibility of making a claim after meeting a former resident of Hodderville in around mid 2004. This man had successfully claimed for the violence perpetrated against him. This was the first time Mr B had ever made the connection between his life’s difficulties and his experiences in care. He first because aware of the possibility of making a claim in around mid 2004. Mr B stated that he did not put in a claim at this time as he became “too distracted” by life’s events. ...
Mr B finally decided to put in a claim in mid-2006. By this time he had been imprisoned, serving his current sentence. At this time he had a period of abstinence from substances and an opportunity to think through his personal circumstances. He received some assistance with his sleep pattern improving on medication. He expressed a desire to address his
psychological issues. In the context of this relative stability, albeit in prison, Mr B felt able to seek legal advice. ...
[22] The LSA concluded its consideration of Dr Dean’s report by explaining that it:
49.... does not accept as persuasive that this insight suddenly dawned on the applicant in 2006. It was more likely to have been much earlier and well within a period when proceedings, if they were warranted, could have issued. Nor does the Agency accept there was any impediment to the applicant instructing a lawyer. The test is not whether he was aware he could make a claim, but whether in fact he had the ability to do so during the critical period that the Limitation Act provides for. The Agency is not satisfied that he has reasonable prospects of success of showing that he could not do so.
[23] Because the LSA’s decision noted the following points about Dr Dean’s report, I assume they were the basis of the LSA’s conclusion that it was not persuasive:
a) Regional Forensic Psychiatric assessments of B during terms of imprisonment concluded he was not in need of formal psychiatric intervention and did not need psychiatric medication. One such assessment was in 1997 (not 1987 as recorded in the LSA’s decision). Although Dr Dean noted these assessments, he did not explain how they were to be reconciled with his opinion.
b)Dr Dean recorded that B, when examined, was not on any regular medication and had no current health needs.
c) Dr Dean found B’s thought process “logical and coherent. He had no disorder of thought form. He had no delusions or hallucinations ... His memory of some events was patchy ... with difficulty placing events in their proper chronological order”.
[24] With one exception, the LARP did not consider these points. Rather, it founded its decision on the fact that there was no contrary psychiatric opinion – the unqualified opinion of Dr Dean that B had been under a disability was unchallenged. The exception was that the LARP treated the LSA’s reliance on the Regional
Forensic Psychiatric Service’s assessments of B as “illogical and fundamentally flawed”, because those assessments were undertaken out of concern that B may be suicidal, and were not directed at limitation issues.
[25] The LARP contrasted the unqualified nature of Dr Dean’s opinion with the weak psychiatric evidence called on behalf of the plaintiffs in the six decided cases. As Judges routinely point out to juries, trial is by jury (or, in the case of the historic abuse claimants, by Judge alone), and not by expert. Dr Dean’s opinion seems to me to pose more questions than it answers. Let me give four examples. First, what did Dr Dean make of the Regional Forensic Psychiatric Service’s assessments? If B was not in need of psychiatric intervention or medication at those earlier times when he was in prison, how can it be that he suffered under a disability until 2006? Certainly, the successive psychiatric assessments of B while he was serving prison sentences aimed to answer the concern ‘Is B in danger of committing suicide?’, not ‘Is B capable of giving instructions to sue in respect of the abuse he suffered in his adolescent years?’ But surely Dr Dean needed to explain why successive assessments that diagnosed B as not to be in need of psychiatric intervention or medication had no relevance to the issue whether, at those times, B was or was not under a disability.
[26] Second, Dr Dean notes that B had spent 14 of the previous 24 years in prison, serving various sentences. What was he doing during the other 10? One thing he was clearly doing was entering into relationships. Dr Dean reported that B had three children from three different relationships. Was B employed at any time(s) during those 10 years, and if so in what job(s)? All that Dr Dean says about this is that B reported to him that he “felt he was unemployable”. In making this point, I do not overlook the observations of the Court of Appeal in S v Attorney-General at [44], namely that a person suffering under a disability:
... can function well in areas of their life which do not require them to face the abuse, as obviously litigation against someone responsible, directly or indirectly, for the abuse would require them to do ...
Those observations were made almost seven years ago. The Courts’ experience with historic abuse claims has expanded considerably in the interim. That is particularly
true of this Court, which has now tried a number of these cases (S’s case had not been tried).
[27] Third, the fact that B was sentenced to several terms of imprisonment indicates that on each occasion he was fit to plead to the charges. On each occasion he either gave instructions to counsel to defend the charges, or gave instructions for sentencing following a guilty plea(s). Although the relevance of an ability to give instructions to lawyers on several earlier occasions is probably obvious, I note that it was a point that influenced influenced Gendall J’s decision in Knight (I refer particularly particularly to [98]-[101] of the judgment). This point does not overlook the distinction between giving instructions to bring a civil proceeding, and giving instructions in relation to a criminal proceeding. Some of the proceedings Gendall J refers to in Knight were proceedings brought against Mr Knight, variously criminal, under the Mental Health Act 1969 and under the Protection of Personal and Property Rights Act 1998. Again, in making this point and the next one, I do not overlook the Court of Appeal’s comments in S v Attorney-General referred to in [26], but reiterate the point I made about S at the end of [26].
[28] Fourth, Dr Dean records B as reporting that “he had periods of stability” in his life, one of them being “in the period leading up to his last imprisonment when he had been surviving in the community without committing offences or taking drugs ...”. How can those periods of stability, seemingly akin to that B encountered while in prison in 2006, be reconciled with Dr Dean’s opinion that B was constantly under a disability until early 2006?
[29] While it is correct that the Judge in all the decided cases bar one had to choose between conflicting psychiatric evidence, in Hurring Simon France J had only the evidence of Dr Earthrowl tendered in support of the leave application. The decisive factor in Simon France J declining leave was that Mr Hurring had not provided Dr Earthrowl with all the relevant material, in particular much of the material the Crown had placed before the Court in its affidavit. I have already indicated that, had I been in the position of having to consider Dr Dean’s opinion, I would have several concerns about it. After all, an opinion is only as good as the material on which it is based. As Dobson J made clear, the LSA was entitled –
indeed obliged – rigorously to assess B’s prospects of success, including by critically considering Dr Dean’s opinion (and it had seen many comparable psychiatric opinions). I do not agree with the LARP’s view that the LSA did that in an illogical and fundamentally flawed way, rendering its decision on the critical or ‘threshold’ limitation/disability/reasonable discoverability aspects manifestly unreasonable.
[30] As it transpired, the LSA’s concerns about Dr Dean’s opinion, which I have endorsed as justified, were shared by Ronald Young J when B’s application for leave to bring his proceeding came on for hearing before that Judge on 2 December 2009. Ronald Young J adopted the sympathetic course of adjourning B’s application, to afford B an opportunity to file affidavits covering the gaps the Judge saw in the material he had. Ronald Young J’s views, as set out in his Minute of 2 December
2009, are sufficiently important to cite at length:
[4] In support of the application for leave to bring an action the plaintiff filed two affidavits, one from Mr B and one from Dr Dean, a consultant psychiatrist. In response the first defendant filed an affidavit by Dr Duff and an affidavit by a senior employee of the Department of Social Welfare.
[5] It became evident, having read the affidavits on both parties, that Mr B’s evidence did not provide adequate factual material as to what happened to him after his alleged abuse in 1985 through until 2006. While there were some generalised observations the detail of his life during that time was not provided. Without now going into detail I pointed out to counsel for the plaintiff that such material is essential to support Mr B’s application.
[6] Dr Dean’s affidavit can be contrasted with the affidavit of Dr Duff. Dr Duff’s affidavit identifies a comprehensive list of relevant factual material of more than twenty items she had taken into account in her assessment. Dr Duff in a detailed way identified and analysed the background material available with regard to Mr B. She made a series of significant observations arising from that documentation.
[7] Dr Dean undertakes no such analysis. He identifies nine or so documents he was referred to and took into account. However, neither in his report nor in his affidavit, does he mention the content of any of this written material nor make any attempt to reconcile what seem to be inconsistencies between this written material and the information he has been provided with by Mr B. It seems counsel for Mr B has failed to give Mr Dean all of the relevant written material available to Dr Duff.
[8] While it is not possible to know exactly what instructions Dr Dean had from counsel for the plaintiff, it is clear from his affidavit that he does not appreciate the legal issues which the Court have to resolve in such an application. Without that context it is very difficult to properly focus his enquiries and report. As a result Dr Dean makes a number of observations that are very generalised about Mr B, some of which appear to be in conflict
with some of the written material available. In addition the content of Dr Dean’s monologue in his affidavit and the content of his attached report at times appear to be in conflict with each other.
[9] Dr Dean does not undertake the kind of detailed analysis Dr Duff has undertaken of the facts to see whether the objective written material from Mr B’s life fits with what Mr B has told him. Dr Dean, for example, does not appear to consider the possibility of malingering when he undertakes his analysis of Mr B’s mental state, yet, given the apparent conflicts, such consideration seems important.
[10] I have identified for counsel for the plaintiff a substantial number of areas that Dr Dean needs to specifically address where currently there is little more than a series of generalised assertions. Where his material is wholly reliant upon what the plaintiff has told him then he must consider whether malingering is a possibility. If he concludes there is no malingering he should explain to the Court why.
[31] Almost identical concerns were expressed by Simon France J in Hurring in respect of the opinion of Dr Earthrowl I referred to in [29] above. Rather than cite all of what the Judge said, I summarise, quoting some selected passages:
a) “Under a disability”: The Court would be assisted by the expert psychiatrist setting out his/her understanding of what is the legal test for “under a disability”. Simon France J reiterated that what is needed is that:
i)Throughout the claimed period the person was suffering from a recognised mental illness or disorder;
ii)That disorder produced an incapacity for the whole period to instruct a lawyer and commence a proceeding. An incapacity is not just “an inability to face up to the process of suing”.
Simon France J drew those two requirements from the Court of
Appeal’s decision in P v T [1998] 1 NZLR 257 per Richardson P at
260.
Dr Earthrowl did not set out what he understands the concept of disability involves.
([28], [47-48])
b)Completeness of information: The psychiatrist reporting for the plaintiff must be provided with all the objective material relating to the plaintiff and the relevant period of time. If that is not done “the probative value of the opinion is significantly diminished”.
([40]-[41])
c) Confront the issues and difficulties: The Court is better assisted if the reporting psychiatrist directly and specifically confronts the two components of disability, and the difficulties or concerns relating to each. Unjustified doubts that might otherwise arise are thereby avoided.
([50])
d)What enabled the plaintiff?: It would also be useful for the psychiatrist to explain how it was that the disability ended. The Judge posed the questions:
After 20 years of being “under disability”, and without the benefit of any professional assistance, what enabled Mr Hurring? If it is not possible to say, does this tell us anything about whether there was a disability?
([50]b))
[32] Reverting to the LSA’s contention that the LARP applied the Hurring test, rather than the test stipulated in Timmins (which the parties accept is the correct one), I note that the LARP decision only mentioned and applied the Timmins test when dealing with the final question – cost versus benefit. There is no mention of the Timmins test in the earlier part of the LARP’s decision headed ‘The Law’. The LARP needed to have – but did not have – firmly in its mind from the outset that it was reviewing the LSA’s application of the Timmins test. In other words, the LARP needed to bear constantly in mind that its task was to check whether the LSA had
made a proper assessment of B’s prospects of succeeding with his claim. Although the assessment required by the LSA is detailed in Timmins and Gummer, in brief summary it needs to be case specific, pragmatic, balanced and reasonable.
W’s case
[33] The starting point is the request LSA made to Ms Cooper on 20 May 2008. The LSA advised that it had carried out a comprehensive analysis of the judgments in the decided cases, and listed its resulting concerns. It requested Ms Cooper to provide it with “an analysis of the basis of your client’s claims and advise the Agency as to whether there is any reason why we should not put in place the withdrawal of aid process”. It listed the issues it expected Ms Cooper to address, amongst them the Limitation Act and causation.
[34] In her reply to the LSA of 20 June 2008, Ms Cooper summarised the law on the limitation issue, in particular the aspects of disability and reasonable discoverability. She then summarised the opinion of Dr Mark Huthwaite, a consulting psychiatrist, dated 13 December 2005. That opinion had been filed in support of W’s interlocutory application dated 28 April 2006 for leave (if required), pursuant to s 4(7) Limitation Act, to bring his proceeding. (My understanding is that that application was eventually heard by Mallon J as part of the substantive trial of the proceeding) Dealing with causation, Ms Cooper again referred to Dr Huthwaite’s report, and summarised the facts relating to W’s claim, from the time he joined the Navy in 1982.
[35] In its decision of 8 July 2008 the LSA expressed itself as “not persuaded by counsel’s analysis”. In relation to limitation, the LSA observed that it had been expecting a critical examination by counsel of the quality and strength of the evidence to be presented, in light of the law and the recent test cases. It stated:
10.The Agency does not accept that Counsel is not qualified to assess the legal aspects of limitation and causation issues. The Agency understands that Counsel is neither a psychiatrist nor psychologist, and does not require such an analysis. The Agency expects of Counsel a litigation analysis. The Agency expected Counsel to carry out a reasoned assessment of the strength (and weaknesses) of the
evidence to be presented for the plaintiff. That is not the assessment of a medical expert, but rather the assessment of Counsel, critically examining the quality and strength of the evidence to be presented in light of the law and the recent test cases. The Agency is entitled to rely on Counsel’s substantial knowledge and expertise within this group of claimants, her specialisation in this group litigation over a number of years that has been extensively supported and funded by the Agency. Counsel’s expertise is reflected in a unique hourly rate.
Dealing with causation, the LSA stated that counsel, again, had not distinguished
W’s position from that in the White and J cases. It asserted:
16.... counsel has not addressed how the evidential problems in those cases are overcome in the current case.
[36] Whereas the LSA’s decision was critical of the lack of analysis by counsel, so the LARP’s decision of 7 October 2009 was critical of the lack of analysis by the LSA. Although it accepted that the LSA had (in its further submissions to the LARP) listed the similarities between W’s case and the decided cases, the LARP took the view that the LSA had failed to relate those similarities to the reasons why the limitation defence succeeded in the four decided cases. The LARP concluded that it “must perforce undertake this task”, and proceeded to do so. Relevant to what I have said in [25] to [31] above, these points emerge from the LARP’s decision (I head the points with the case the LARP was drawing a comparison with):
a) Hurring
•Unlike the opinion of Dr Earthrowl, there was no diffidence in Dr Huthwaite’s opinion. Neither is there any suggestion that Dr Huthwaite was not given all the relevant information ([30]).
b) Ashton
•Unlike the opinion expressed by the psychiatrist who reported for Mr Ashton (Dr Barry-Walsh) the evidence of Dr Huthwaite was not qualified. Dr Huthwaite was firm in his view that W was under a disability for the total period he identified ([33]).
c) Knight
•While the Court in Knight did independently scrutinise the report of Dr Barry-Walsh, it cannot be said that a Court will be as willing to dismiss a psychiatrist’s finding of there being a disability quite as readily without the assistance of a second counter report as existed in Knight. In W’s case the expert evidence of Dr Huthwaite is unchallenged by a tabled contrary psychiatric report ([37]).
d) White
•The Court heard evidence from three psychiatrists. Although generally agreed as to the plaintiffs’ conditions, these psychiatrists differed on limitation issues. In W’s case there is only the unchallenged evidence of Dr Huthwaite ([38]-[39]).
e) J
•The only similarity between J and W’s case is that W also was able to handle ordinary living: he worked in the Australian Merchant Navy, became a JP, married for a period and completed a Criminology degree. In relation to that similarity, the Panel referred to the comments of the Court of Appeal in S v Attorney-General which I have cited in [26] above ([42]- [43]).
•If there were a psychiatric opinion contrary to that of Dr Huthwaite, or his opinion were qualified or ambivalent, then there would be considerable similarity between J and W’s case. However Dr Huthwaite is firm on the following points:
(i) W was diagnosed with PTSD in 2004, and this diagnosis was subsequently confirmed by other medical professionals. He
had suffered from PTSD from the time of the incident until
2004.
(ii) ThePTSD resulted in such disability that W was prevented from instructing a lawyer to act until he commenced his counselling in 2004.
(iii)W did not make the link between his abuse and the symptoms and effect of the PTSD until he saw the counsellor.
This expert evidence is unchallenged. There is nothing in any of the material before the LARP giving cause to doubt the factual and evidential basis on which Dr Huthwaite has given his opinion ([44]-[45]).
[37] Based on what I said in [25] to [31] above, that analysis was obviously not the type of scrutiny of Dr Huthwaite’s opinion that was required. Neither the LSA nor the LARP carried out the appropriate scrutiny. Let me set out what I consider was required. I will do so in question and answer form.
[38] Q1: Did Dr Huthwaite explain his understanding of the legal test for “under a disability”, or otherwise demonstrate that he had a proper understanding?
A:No. He did not directly explain his understanding. However it does emerge from his views on the two requirements, dealt with in the next two questions.
[39] Q2: Throughout the claimed period, was W suffering from a recognised mental illness or disorder?
A:Yes, Dr Huthwaite opines that he was suffering from PTSD, and explains in detail what PTSD is, relating his description to W’s case.
[40] Q3: Did the PTSD suffered by W disable him from instructing a lawyer and commencing a proceeding for the whole period?
A:Yes, although Dr Huthwaite gives two slightly different answers to this question. First:
... Up until his disclosure to the therapist (in 2004) it would have been rather difficult for him to recognise the cause and effect of the incident. His insight is very likely to have been impaired by his denial and rage, and for many years by his alcohol abuse and these factors prevented him from bringing legal proceedings.
Second:
This psychological state as described above would have in my opinion, resulted in such disability that it would have prevented him from instructing a lawyer to act on these matters. It was only once he started in counselling with Marilyn Jeffrey that he developed sufficient insight and understanding to seek and instruct legal counsel in this matter.
[41] Q4: Does Dr Huthwaite reconcile his opinion that W suffered
continuously under a disability, with W’s ability to carry on with life
in the interim? A:
Yes. Dr Huthwaite notes that W joined the Australian Merchant Navy after leaving the Royal New Zealand Navy, and subsequently worked
in various jobs in security and then private investigation. He notes
those latter occupations led W to an interest in criminal justice and
that he completed a degree in Criminology. The Doctor records that
W had a girlfriend at the time he examined W, and that W had earlier
been married for a short time some years back, the marriage ending
because of W’s drinking. Dr Huthwaite explains:
I am often asked in these situations for my opinion as to whether an individual should reasonably have been expected to identify the symptoms of Post Traumatic Stress Disorder earlier than what they did. In my experience it is not at all uncommon for a person not to have done so and diagnoses of Post Traumatic Stress Disorder often remain undiagnosed and unknown to the individual and those around them for many years. Indeed, one of the effects of Post Traumatic Stress Disorder is that it can undermine the ability of the individual to see matters objectively or rationally. The individual tends to develop coping mechanisms some adaptive (for example: repression of memories) and some maladaptive (for example: alcohol abuse) in order to cope
with the changes experienced within themselves as a consequence of the traumatic event. This is a natural and common response in circumstances leading to Post Traumatic Stress Disorder.
[42] Q5: Does Dr Huthwaite explain what was the ‘trigger’ which enabled W
to make the connection between the sexual abuse he suffered in the
Navy in 1984 and the PTSD diagnosed in 2004? A:
Yes, Dr Huthwaite does this in several places, employing different
language. The gist is that he reports that W first developed an insight
into the consequences of the incident at a time (in 2004) “he was re-
editing his life”. Dr Huthwaite perhaps best explains the trigger in
this passage:
... He told me that he came to this through a period of self reflection as he started “pacing back through his life”. It was almost 20 years to the month that it dawned on him that what had happened in the Navy had significantly impacted on his life. The significance of the 20 years was that he had signed up to the Navy for 20 years. On reaching this insight he decided that he needed to see a counsellor and it was at that time that he contacted Marilyn Jeffrey. His subsequent disclosure of the abuse has evolved from there and led to his first sensitive claim with ACC in July 2004.
The events of 2004 are also mentioned in other parts of Dr
Huthwaite’s report. It is clear that the order of events was:
• Recognition by W of the symptoms of PTSD through “a process of self-discovery”.
• W consulting a counsellor in July 2004, and subsequently medical professionals.
• W making his first sensitive claim to the ACC in July or
August (both months given, in different parts of the report) 2004.
[43] Thus, Dr Huthwaite’s opinion does, although in one case not directly, answer all the necessary questions. That does not mean that the opinion is beyond
challenge. It seems to me that areas of concern for the LSA about the opinion might be at least fourfold. First, Dr Huthwaite’s view that W only became enabled “through a process of self-discovery” in 2004 – 20 years after the event. Could it really not have been considerably earlier? This self-triggering can, for example, be compared with the “trigger” in S v Attorney-General. The comparison between that trigger and W’s “process of self-discovery” is conveniently drawn in this passage from the judgment of Simon France J in Ashton:
[70] ... The Court of Appeal (in S v Attorney-General) summed up the psychiatrist’s evidence (at [44]):
... PTSD served as a “significant and major barrier to him bringing proceedings”. He said that BS became significantly depressed when he tried to overcome the barrier to him finding out about his past and finding a way to bring proceedings ... He said it was of some significance that once BS had knowledge of the relevant issues, was “released” by the death of his caregiver, Mrs S, and had appropriate medical and psychological support, he then had vigorously pursued the legal claim. He was able to overcome the effects of his disorder “when he was given more information, had affirmation that his situation was not right and was given appropriate psychological and medical support.”
[71] In my view it is somewhat optimistic to suggest that the plaintiff’s evidence in this case is superior to that evidence. There is much there that is lacking here. In that case the recognised illness, PTSD, was said not only to be a barrier to proceedings but also was an actual source of further harm (i.e. depression) whenever the prospect of initiating proceedings was considered by S. That is a clear example of disability. Further, and significantly, the trial evidence was clear that S’s attendance at a former care-giver’s funeral had proved a cathartic event in his life that played the significant role in ending his disability. S’s pattern of conduct subsequent to attendance at that funeral was consistent with his claim of it having released him from the disability. I further observe that, even then, further professional assistance was required to assist S to overcome the disability.
[44] Second, Dr Huthwaite records that W reported the 1984 incident to a senior officer after it occurred, but that nothing was done about it. When a visitor from the Air Force lodged a later complaint against the alleged perpetrator, Dr Huthwaite records that W gave evidence at the ensuing investigation, which resulted in the perpetrator’s discharge from the Navy. How, really, can these actions be reconciled with Dr Huthwaite’s opinion that W was disabled from bringing a legal proceeding in respect of the incident until 2005? While it could readily be accepted that W might not sue while still in the Navy, the fact is that he left the Navy in 1985.
[45] Third, causation is an obvious difficulty for W, given W’s alcohol abuse over the relevant period. Dr Huthwaite reported (as set out more fully in [40] above):
... (W’s) insight is very likely to have been impaired by his denial and rage, and for many years by his alcohol abuse and these factors prevented him from bringing legal proceedings.
[46] Fourth, although Dr Huthwaite offers an explanation (the one I have set out in [40] above), it remains difficult to comprehend – let alone accept – that on the one hand W could for 20 years hold down several jobs including employment as a private investigator, become a JP and study for a degree, yet on the other hand be disabled to the extent that he was unable to give instructions to bring a claim for abuse he complained about at the time and subsequently gave evidence about at a naval investigation.
[47] I reiterate that this type of analysis was not carried out by either the LSA or the LARP. It is the sort of scrutiny that is required. Having carried it out, I do not consider that the LSA could reasonably have assessed W’s prospects of success in overcoming the limitation defence as so low that the continuation of legal aid was not justified. That conclusion does not overlook – but nor do I intend embarking upon – the other issues in W’s case eg W’s likely net recovery from any claim. Suffice it to say that W alleges that the incident of sexual abuse he complains of brought to an end his planned career of 20 years in the Navy.
[48] Both the LSA and the LARP needed to base their respective decisions on the opinion of Dr Huthwaite, since that was the only one available to them. I have already noted (in [29] above) that in every decided case except Hurring, the Judge had the benefit of psychiatric opinions offered by the opposing parties. Since W’s case awaits judgment from Mallon J, I need to be circumspect about what I say. However, I note that at W’s trial the Crown called two psychiatric experts. One was Dr Barry-Walsh, who had provided an opinion on 4 October 2006 to the New Zealand Defence Force. The other was Professor Graham Mellsop, Professor of Psychiatry at the Waikato Clinical School of the University of Auckland. Professor Mellsop’s view was that alcohol abuse was the only diagnosis of W for which there was unequivocal evidence. For reasons he explained to the Court in detail, the Professor expressed the opinion that:
None of the psychiatric diagnoses (in reality, only clearly one, alcohol over- use) regarded by me as appropriately assignable to W are in his case associated with a level of disability, or a duration of disability, which would prevent him from lodging a claim at most times in the period 1984 to 1997.
[49] Two other points about Professor Mellsop’s evidence warrant mention. The first is that the Professor notes that, from about 1997, W appeared to have had overt psychological or psychiatric difficulties, particularly including alcohol abuse and dependence, which W apparently attributed at the time to some of his surrounding life situational issues. He was assessed by Psychiatric Service clinicians at the time, both as an outpatient and an inpatient. Professor Mellsop notes:
Dr Huthwaite indicates there had been no contact with psychiatric services or personnel by W until 2004. He specifically does not acknowledge the
1997 outpatient and inpatient attendance at NSW Mental Health Services.
[50] Thus, there appears to be a gap in the information provided to – or at least considered by – Dr Huthwaite. A demonstration of the point I made in [31]b) above.
[51] The second point concerns the diagnosis of PTSD. Professor Mellsop made these observations:
4.3 In the last two years, partly under the shadow of the development of new versions of both the International Classification of Diseases and the American Diagnostic and Statistical Manual, there have been an increasing number of reviews and meta-analyses relevant to both the definition and the treatment of PTSD appearing in the International and peer refereed literature. Major opinion is coming down in favour of the argument that the core assumption, of a specific aetiology which distinguishes PTSD from most other psychiatric disorders, lacks compelling or consistent empirical support. (eg Rosen and Lilienfeld, 2008). It has also been increasingly well established that
(i)many people can develop a similar symptom profile in the absence of a relevant trauma history,
(ii) most people exposed to such serious stressors/trauma do not develop the PTSD symptom profile,
(iii) during a lifetime, most of the population is exposed to at least one of the extreme stressors/trauma
(iv) no particular “dose/response” relationship between the PTSD
symptoms and trauma severity has been clearly demonstrated.
4.4 Which therefore calls into question the reliability of the PTSD
diagnoses, the validity of such a diagnostic entity, and the need for Courts to
recognise that their use of PTSD as a valid diagnostic entity may go way beyond the empirical supporting evidence.
[52] To summarise, not only does Professor Mellsop reject the diagnosis of PTSD
in relation to W, but he queries its validity as “a diagnostic entity”.
The LARP misinterpreting Dobson J’s judgment to reconsider
[53] The question the LSA wants answered here is essentially: What did
Dobson J envisage when he directed:
... that the Panel re-consider its decision to reinstate legal aid in each of those cases. Both parties are to participate in that further review in a manner consistent with the observations as to the process required for doing so (which Dobson J had given)?
[54] I have taken the liberty of confirming with Dobson J that he envisaged a pragmatic but fair procedure along these lines:
a) Having been directed to review afresh its decision in 14 of the cases, in each the LARP will seek submissions from the legal aid applicant ie the plaintiff. In particular this is an opportunity for the applicant, in the light of Dobson J’s comments, to explain afresh why the applicant’s claim should continue to be legally aided, when each of the decided cases has gone against the plaintiff. In short, to explain why the applicant’s claim has different and better prospects of success justifying legal aid.
b)The LARP will then afford the LSA the opportunity to respond to the applicant’s further submissions. In so responding the LARP is not to confine the LSA to the reasoning behind or content of its decision to withdraw aid. Rather, the LSA is to have a full opportunity to respond to the applicant’s fresh submissions and to explain why it adheres to its decision to withdraw legal aid.
[55] Each of the LSA and the LARP and those advising them is publicly funded. Each is concerned with the distribution of public monies. Rather than formalistic
and nitpicking constraints, what is called for in the fresh reviews by the LARP which Dobson J directed, is the most efficient and efficacious process consistent with administrative fairness. In W’s case a rather more elaborate exchange of submissions was agreed in a teleconference with the Convenor of the LARP on 18
August 2009. This is recorded in the Convenor’s memorandum dated 25 August. It provided for reply submissions. Ultimately, the LSA felt constrained to respond to the reply submissions made for W. W responded by inviting the LARP to ignore those submissions in response.
[56] I accept that it was W’s solicitor who, in her reply submissions of 7
September 2009, complained that the LSA’s further analysis “was only carried out after the decision, in order to confirm it”, and that “is unfair for the Agency to purport to do that analysis now”. Because it was not satisfied that the LSA had constructed its analysis “post facto”, the LARP rejected that complaint. It should have rejected it as a matter of principle.
The LARP substituting its own view instead of reviewing the LSA’s analysis
[57] I trust that what I have said in [19] to [32] above substantially deals with this complaint. When considering withdrawing a grant of legal aid, the LSA’s focus should be on assessing the prospects of success primarily on the basis of the psychiatric evidence available to the LSA. I am not suggesting that causation and an assessment of likely benefits versus costs (and thus any impact of the ACC bar) are not relevant considerations. I am suggesting that the primary focus should be on the critical or threshold limitation/disability/reasonable discoverability obstacles. If a claimant cannot overcome those obstacles, his/her claim will fail in limine.
[58] I reiterate that the LARP’s jurisdiction to interfere with the LSA’s decision is limited to cases where it considers the LSA’s decision to withdraw aid is “clearly and unmistakably unreasonable” or simply wrong in law. Without descending into detail, I think the LSA is justified in protesting that the LARP underestimates how high the s 54(1) threshold for intervention is, and that its decisions demonstrate an inappropriate readiness to substitute its own analysis for that of the LSA. These comments are deliberately general and somewhat tentative. That is because, like
several other Judges, I regard the LSA’s task in monitoring legal aid for the historic abuse claims as a difficult one.
Concluding that the decided cases were irrelevant
[59] Again, I have largely dealt with this complaint. I agree with Mr Cooke that the relevance of the decided cases is:
a) To demonstrate, in a general way, the difficulties faced by plaintiffs in historic abuse claims, and the close scrutiny they have and will receive from Judges upon seeking leave to bring a proceeding out of time and/or at trial.
b)For any particular light they shed on the prospects of success of the applicant in the case being considered by the LSA. I have attempted to draw principles or checkpoints from the decided cases, which might usefully be applied by the LSA to the case under consideration. I do not consider that a microscopic comparison of the facts of the decided cases with those of the case under consideration is likely to be helpful. After all, every case is different.
The LARP addressing only the Limitation Act issues
[60] In their submissions, counsel disagree as to what the LSA did and did not consider, and similarly as to what the LARP took into account or overlooked. However, counsel are agreed that, if it applies to the case, the ACC bar to the recovery of compensatory damages is a relevant consideration, though not the primary one. I agree. If the LSA considers the applicant has reasonable prospects of overcoming the limitation defence, then likely net recovery becomes a relevant consideration.
Failure to take into account the plaintiff’s desire to have abuse acknowledged
[61] In its 1 December 2009 decision in B’s case, the LARP levelled this criticism against the LSA:
[31] In its assessment of the likely costs of proceeding against the outcome, the Agency has ignored the Applicant’s desire to have his abuse acknowledged. The failure to take into account a relevant consideration is an error of law.
[62] I accept Mr Cooke’s protest that the LSA has throughout been acutely aware of, and very sensitive to, the desire of claimants to have the abuse they allege acknowledged by the Court. Mr Cooke referred me to parts of the LSA’s documentation demonstrating this, and it would be surprising if that were not the case.
[63] I also accept that this “vindication” factor is very much subsidiary to the limitation/disability/reasonable discoverability factors on which I have focused.
[64] It is, of course, possible for a Court to uphold an historic abuse claimant’s allegations of abuse, while at the same time holding that any remedy in respect of that abuse is statute barred. That occurred, for example, in the White cases, where at [312] of his judgment Miller J found that Mr Earl White had been abused by one of the staff at the Hokio Boys’ Home around 1974-1976. But Mr Earl White’s claim failed because Miller J concluded (at [442]) that he had the ability to bring a proceeding throughout, despite having psychological and psychiatric conditions.
[65] I doubt that such an outcome was very satisfactory for Mr Earl White. Indeed, it was the prospect of that sort of outcome – substantially a failed claim – that prompted Hammond J to comment in the Court of Appeal’s decision in Crown Health Financing Agency v P [2008] NZCA 362:
[278] I worry most of all about the claimants. They have presumably all been encouraged to think that they have sustainable claims. They will of course have an intrinsic belief in the “justice” of their cause. All counsel and Judges who practised in the pre-ACC days became familiar with the effects on people in real life of long-pending claims for damages. Here we have even more vulnerable people, most of whom have had what they clearly regard as inappropriate and harrowing experiences in psychiatric institutions.
Counsel for the claimants, with respect, need to make a realistic reappraisal of the claims, and those claims which are to be advanced need to be dealt with timeously.
Result
[66] The formal result is that I dismiss the LSA’s appeal in W’s case, but allow it in B’s case. For the reasons I have explained, those outcomes are of no consequence.
[67] I trust this judgment is of some assistance to the LSA in considering, in the future, whether it should withdraw legal aid from an historic abuse claimant, and of assistance also to the LARP in its task of reviewing decisions by the LSA to withdraw aid where the applicant applies under s 54 for a review.
Costs
[68] Costs are reserved for submission by memorandum, if any order is sought. My tentative view is that no order is appropriate. That perhaps explains why no submissions were made about costs.
Solicitors:
Bartlett Partners, Wellington for the Appellants
Cooper Legal, Wellington for the Respondents
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