Conclusion.
63 The issue that separates the medical evidence relied upon by the plaintiff and that of the defendant is really quite narrow. Ms Glennie reached her majority in April 1998. She was, at that time, however clearly disabled. Her life was chaotic. She was addicted to heroin. She was working as a prostitute and committing crime to assist in funding her drug habit.
64 Gradually and slowly she began a journey back towards normality. In 1999 she completed a detoxification programme and began a course of medication designed to eradicate her craving for heroin. According to her affidavit, she was "clean" within seven months.
65 However, heroin was only one of Ms Glennie's problems. She was also destitute and psychiatrically disturbed. She began drinking heavily and smoking cannabis each day, to the point where she was, in her own words, "smashed" (Aff [19]). She lived with her parents on the south coast. She had many short relationships and, as a result of one, became pregnant. Her daughter was born in July 2001. It was agreed by all doctors who furnished reports for the purpose of this hearing that she remained disabled to this point, that is, to the age of 21 years.
66 Dr Brown acknowledged the difficulty which victims of sexual abuse have in undertaking legal proceedings, even when they are adults. As I understand her report, the difficulty arises mainly because of their diffidence in disclosing such abuse. She therefore attached importance to a number of disclosures made by Ms Glennie in the period 2001/2002 to late 2004. She reasoned that, if the plaintiff had the capacity to make such disclosures, including a detailed statement to the police, then she "would have been able to instruct counsel during the years 2002 or 2003" (sic 2003/2004) "in an unimpeded fashion".
67 In evaluating that view, it is instructive to look at the nature of the disclosures which were made and the evidence concerning Ms Glennie's mental state at that time. The disclosure to the early childhood nurse occurred some time after the birth of the child (unspecified) in a particular context. In her affidavit, Ms Glennie said this:
"[23] I spoke to the early childhood nurse of my daughter about what had happened to me as a child and my concerns for my daughter. The early childhood nurse contacted DOCS and they became in contact with me. I had at that stage moved out of the house and informed them that I had removed my daughter from the home my father resided in."
68 That disclosure seems to me to be relatively unimportant. I would infer that the plaintiff simply said that she had been the subject of sexual abuse by her father when a small child, without significant elaboration. Of more importance is the next relevant disclosure, which was to the police. Ms Glennie attended the police station on three occasions. She did so on the spur of the moment for the first time on 5 June 2003. She was encouraged to write out a statement of what she could remember, and did so on 16 August 2003. She saw the police again on 23 September 2003 and finally made a detailed statement on 17 November 2003. Ms Glennie said this in relation to these disclosures:
"[25] I gave a statement to the Police in November 2003 about what had happened to me as a child and as a result they investigated the matter and commenced proceedings against my father. The proceedings against my father went very slowly and I felt that nothing was happening or being achieved."
69 The final matter Dr Brown thought important, as an indication of Ms Glennie's capacity to pursue her civil case, was the disclosure to Dr Kym Nicholson in counselling sessions on 21 October and 18 November 2004. Ms Glennie, in her affidavit, said this concerning those sessions:
"[24] I had brief counselling sessions with Kym Nicholson, a counsellor at the women's health centre in Nowra, on 21 October 2004, 18 November 2004 and by telephone on 9 February 2005. I did not feel that the counselling sessions achieved anything or enabled me to deal with any of the issues in my life."
70 Dr Nicholson furnished a report, which was as follows:
"Cassandra had heard about the Centre through the local Drug and Alcohol service. She said that she had reported to the police about her sexual abuse as a child and gave me a copy of her statement.
She presented by stating how very hard it was for her to get on with her life as she was constantly thinking about her childhood and why the abuse happened. She said that even though she had made her statement to the police 'nothing is happening again'. As a result she was becoming anxious and feeling overwhelmed by powerlessness at times. As a result of having gone to the police her family had disowned her even though her other sisters had also been abused. She was thus without their support. There were also issues affecting her current relationship with her partner and pot use and ongoing concerns over her brother's drug use.
Cassandra was extremely worried about her own daughter having contact with Cassandra's father but was also concerned about other children being in contact with him. Cassandra was highly motivated to seek protection for her daughter."
71 Dr Nicholson's notes of each consultation were tendered (Exhibit D). It is apparent that, beyond referring to the sexual abuse and providing a copy of her statement to the police, Ms Glennie did not elaborate. Dr Nicholson also indicated that she had spoken on the telephone to Ms Glennie on 9 February 2005 and saw her later that month in an educational group for managing anxiety and depression.
72 Ms Glennie, in her affidavit, provided the following general description of how she was feeling and coping in the period between the birth of her child and her attendance at Court on 14 November 2006, when she heard her father plead guilty. She said this:
"[26] I had feelings of powerlessness and I had experienced enormous stress in my life at this time. After leaving my parents house I had moved to public housing which I thought was unsuitable as it was in an estate which was lawless. I was fearful for myself and my daughter and her safety. Through the South East Area Health Service I saw a psychologist called Soraya Issa on or about the 8 November 2006 who assisted me by writing a letter to the Housing Commission to help me get more suitable housing.
[27] I would describe my life at this period as out of control. I was unable to make decisions about small or large matters in my life.
[28] For most of the period after reporting the matter to the police up until the time my father actually pleaded guilty I did not know what the outcome would be. I was fearful that he would not be convicted. I was constantly thinking about what had happened to me and not able to deal with the thoughts. It made living my life very difficult. I had no feeling of control about anything in my life at that time."
73 Ms Glennie, as I have said, was not required for cross examination.
74 This material, I believe, demonstrates that, notwithstanding the disclosures made by Ms Glennie in the period before 2006, including those made to the police, she remained enfeebled and incapacitated in the management of her affairs by reason of her psychiatric conditions. It was a giant step for her, and an important step, to go to the police. She took that step with great difficulty, and then only at the urging of her boyfriend. She made it notwithstanding her incapacity. It cannot, in my view, be taken as a general indication of her capacity to look after her own interests, and attend to her own affairs. It was, I believe, all she could manage at that time.
75 In State of New South Wales v Harlum (supra), Beazley JA (Tobias JA agreeing) said this:
"[94] The State's approach also fails to deal with another of the other fundamental aspects of bringing a claim, namely that it requires the exercise of willpower to initiate the claim: see Kotulski at 118. In this regard, I consider that it is important to understand that it is not only a question of having the willpower to engage in the task of commencing proceedings. Such an approach takes a far too simplistic view of what is involved in the commencement of an action. In making a decision to commence an action, the person is also making a decision to continue with the claim.
[95] Even if a person is able to fulfil each of the requirements contained in the State's approach, including the making of a decision to instruct a lawyer and to provide instructions, the person may not have the willpower to engage in all that is required to commence an action because of that person's mental condition."
76 Until Ms Glennie witnessed her father's confession in court, she did not, I believe, have the capacity or the willpower to give instructions to lawyers in respect of the cause of action she had, and that because of her multiple psychiatric conditions.
77 I accept the evidence of Dr Pickering and the other medical practitioners who share his view and I prefer that evidence to that of Dr Brown. There did exist, in my view, a substantial impediment to the commencement of proceedings before 14 November 2006, arising from the various psychiatric conditions suffered by Ms Glennie, and the effect they had upon her mental condition (cf State of New South Wales v Harlum (supra), Basten JA at [145]). She was, until that time, under a disability within the meaning of s 11(3)(b) of the Limitation Act 1969, such that until that date the running of the limitation period is suspended.