Hopkins v State of Queensland [2004] QDC 21

District Court of Queensland|2004-02-24

[1] This is an application for an extension of the limitation period pursuant to s 31 of the Limitation of Actions Act 1974. The originating application filed 7 July 2003 also sought leave to commence proceedings pursuant to s 43 of the Personal Injuries Proceedings Act 2002. That leave was granted by another judge on 23 July 2003, but the application under s 31 was adjourned and in due course came on for hearing before me. Following that leave, a notice under the Personal Injuries Proceedings Act was given on 4 October 2002.[1] On 26 May 2003 the respondent advised that it was satisfied that the notice of claim was compliant. Proceedings were commenced in this Court on 24 July 2003.

[2] The application seeks an extension of the period of limitation for the purpose of commencing an action for damages for negligence or breach of statutory duty against the respondent in respect of acts and omissions of officers of the Children's Services Department. In October 1984 the applicant was placed in foster care with a particular family. In the latter part of 1986 the applicant complained about physical abuse from her foster father. Although the complaint was investigated, the applicant was not removed from that family. The applicant alleges that between December 1984 and October 1987 the foster father abused her physically, emotionally and sexually. In October 1987 the placement with that family ceased.

[3] The applicant's case is that she subsequently suffered psychiatric illness as a consequence of that abuse, and that her psychiatric condition would have been avoided or would not have been as bad if she had been removed from that family in the latter part of 1986 following her complaint. The applicant alleges that the failure to remove her at that time was negligent, or in breach of statutory duty. The extension sought by the applicant would be one sufficient to prevent a defence under the statute from being pleaded in respect of the proceedings commenced on 24 July 2003.

[4] The applicant relies on two material facts said to be of a decisive character not within her means of knowledge until a period within 12 months prior to the commencement of the action. On 25 July 2002 the applicant obtained a copy of her departmental file from the Department of Families. It was submitted that it was only when she gained access to that file that she became aware that employees of the department responsible for her placement were in possession of information in October 1986 which ought to have caused them to remove the applicant from the foster placement. In the alternative, the applicant relied on the provision by a psychiatrist in June 2003 of a psychiatric report, by which she first became aware:

(a) that psychiatric injury of the kind described by the psychiatrist had been suffered by her;

[5] The applicant's affidavit material provides a good deal of background material in relation to her life.[2] She was born on 10 November 1974, and admitted to the care and protection of the Department of Families on 18 April 1978. Two sisters were similarly dealt with at the same time. In March 1979 the three were placed with a particular family in Toowoomba where they remained until October 1984, when their then foster mother became ill and was admitted to hospital. Their then foster father arranged for them to stay with some friends of his. About two months later, after it became apparent that it was not going to be possible for them to return to the original foster family, they were formally placed with that new family. This involved their living on a farm near Tin Can Bay. Some time in 1985 the applicant moved with the family to Dagun. According to a statement made to police in May 2002, the sexual abuse began on the applicant's 11th birthday, which was 10 November 1985.

[6] Exhibited to the applicant's affidavit is a copy of the material obtained by her by way of administrative release from the Department of Families in July 2002. This includes a number of contemporaneous notes in relation to her placement with the relevant family. A report on foster care dated May 1985 says among other things "the foster children seem very happy in this home."[3] A childcare officer visited the family to talk to the applicant and her sisters on 1 August 1985.[4] The note records that she "had a long talk with the girls, and they seemed to be very happy with the family". There is a note of a further visit apparently by the same childcare officer on 22 August 1985. A note dated 18 November 1985 reveals a plan for the foster parents to travel overseas in March 1986; they had arranged for some friends to look after the three girls during this period.

[7] There is a note[5] of a home visit on 9 May 1986 following the period while the girls were staying with the friends of the foster family while the foster parents were overseas. Evidently some complaints had been made to someone, and these had been passed back to the department. Evidently a childcare officer had visited the neighbours a couple of times,[6] but I can find no file notes for these visits. The officer went through these various things with the foster parents. The home visit note includes: "There was a couple of serious things, but after discussing them it seems there was really no basis to the accusations." The applicant said that the officer did not believe the claim of abuse and forced her to apologise to the foster parents for "telling lies about them." There is a further file note,[7] that on 17 June 1986 the officer had a long talk with the applicant's two sisters, but the applicant was not there at the time.

[8] It appears from the file that during 1986 the department was considering whether the applicant and her sisters would return to their mother. Apparently at one stage the mother had been encouraging an expectation to that effect.[8] It appears that of the three girls the applicant was the most keen to return to her mother at this time.[9] There is a good deal of material involving assessment of the mother's situation, and the question of whether it was realistic for the girls to return there. It does appear that the return of the girls to their natural mother and her then current partner was seriously considered.[10] Later material in the files shows that on two later occasions the applicant did attempt to return to her natural mother, and on each occasion the relationship between them broke down very quickly and the applicant left.

[9] There is a file note[11] on the applicant and her sisters by the acting supervisor at Gympie of 3 October 1986, which refers to allegations from the applicant to a childcare officer on 2 October that the foster family were discouraging any desire on the part of the girls to return to their mother. The memo refers to "emotional abuse"; that is apparently only a reference to the claim that the foster parents were refusing or providing additional food ("another piece of cake") depending on whether a particular child was or was not showing enthusiasm for returning to her mother. It also states "she and [her sister] got a beating with a stick for being in the strawberry patch and had been hit before." There is a reference to some independent people having seen bruises and the file note continues. "Concerned but has not written this as a CP1 (beating and emotional blackmail). [The childcare officer] has written his case plan with recommendations for increased visiting over the next six months to eventual return to mother". The file note shows that consideration was given to taking the girls away from the foster family and placing them temporarily elsewhere in the Toowoomba area until they could return to their mother, but that the childcare officer was not in favour of that course. There was also some concern expressed about adverse consequence in terms of the relationship believed to exist between the foster father and the girls if the foster father was confronted. The file note continues: "Abuse to Angela anyway ? - monitor carefully through school ... home visit to school to interview Angela ????"

[10] On 30 October 1986 the foster parents were spoken to by the childcare officer, but apparently principally about the prospect of the girls returning to their mother, to prevent them from discouraging that course. There was a further meeting with the foster father on 5 November 1986 in which it was reported that the applicant, "would really like to go home".[12] There is a further file note[13] of 27 November 1986 that a childcare officer has spoken to the three sisters. The note of the conversation with the applicant refers to her having stolen money from the foster parents and to her continuing enthusiasm at least to visit her mother. Plans were being made to arrange that.

[11] In a case review[14] which does not appear to be dated but evidently happened after November 1986 it was noted that following a visit to the mother for a long weekend in that month the applicant's two sisters decided that they would prefer to stay with the foster family, but the applicant was interested in another visit to her mother, before she made a decision. The case note includes a statement that the applicant, "has been displaying behaviour problems for the last few months and in fact has been stealing a great many things. She stole from the [foster parents] and she also stole from her mother when she was there." A later file note[15] records the holiday placement of the two eldest girls at Christmas was cut short because they made up excuses to go back to the foster family.

[12] The applicant said that in October 1987 the foster father went away again for a time and that she saw this as an opportunity to leave the foster family.[16] She started behaving in a way which she hoped would have her removed from them, and this was successful. The department's assessment of what occurred around that time appears in a file note which does not seem to be dated but is document E132. The note suggests that there were difficulties with the applicant and the situation eventually reached a point where the foster mother did not want her there any longer, and she had to be removed. At this time the applicant was telling the childcare officers involved that she wanted to return to her mother.

[13] In December 1987 the applicant was returned to her mother, but quite soon this broke down. The mother telephoned the department on 7 December complaining about the applicant's attitude, and on 9 December wanting the applicant removed that day.[17]

[14] The files record a large number of later events, as various placements were attempted. These were all ultimately unsuccessful, although some lasted longer than others. There are various reports complaining about the applicant's behaviour in various settings. In April 1988 she returned to the foster family the subject of her present allegations for a short time, and apparently there was a brief return, or at least a visit, in 1989. She was with her mother for a short time in November 1988,[18] in July 1990 and in August 1991.[19]

[15] The two sisters remained with the foster family until 1989, when they complained about sexual abuse by the foster father.[20] As a result they were moved from the family, and police spoke to the applicant and asked whether she had ever been sexually abused by the step father. She said that that had not occurred. She told the police something about the physical abuse but that was all. That is consistent with her later attitude of not wanting to think about the issue, or do anything to revive her memories of it.

[16] In early 2002 the daughter of the foster parents, and one of the applicant's sisters, complained to the police about physical and sexual abuse by the foster father. Subsequently that sister contacted relatives who contacted the applicant, and she then spoke to a police officer who was investigating their complaints. She made a statement to police on 11 May 2002. In the course of her discussion with the investigating officer, it was suggested to her that she find out what was on her departmental file. In July 2002 she obtained a copy by way of administrative release. She says that when she obtained this someone in the department told her she should take the file to a lawyer as she may have a claim against the department. She instructed solicitors on 11 September 2002 to investigate a claim.

[17] Prior to speaking to the investigating officer, the applicant had never spoken to anyone about sexual abuse she had suffered. She said[21] that, as a result of her having been told she was lying and made to apologise to the foster parents, she felt that no one would believe her. She just tried to block out thoughts of the abuse and get on with her life. She found it difficult to even think about the abuse, let alone talk to someone about it. She had tried to distance herself from that family and to block out thoughts about what had happened while she was living with them.

[18] She said that since the abuse occurred she had been experiencing severe depression, she was distrustful of people, she suffered repeated nightmares, became angry very quickly, and was excessively sensitive in relationships, had difficulty maintaining relationships, and experienced flashbacks triggered by events that remind her of the abuse. She had however not seen a psychiatrist or a psychologist in relation to her various problems prior to being referred to a psychiatrist in June 2003 by her solicitors for the purposes of a report.

[19] The applicant's solicitor obtained a report from a psychiatrist, Dr Byth, dated 19 June 2003.[22] It refers to the applicant's history, although paragraph 2.13 is insufficiently precise; it suggests that there had been a full report to the department. In fact all that happened was that some complaints by the children to the family with whom they were temporarily staying while the foster parents were overseas, which did not include any complaint of sexual abuse, were passed on, and there were then some complaints to a childcare officer in September or October 1996 of limited specific matters, which did not extend to any complaint of sexual abuse. The report refers to psychological symptoms said to have been experienced at the time, and currently, and did not suggest that there was not a continuation between the past and the present psychological symptoms.

[20] Dr Byth diagnosed post-traumatic stress disorder and borderline personality disorder; he did not regard her depression as sufficiently serious to amount to a specific disorder, but said that at times she may have met the criteria of an adjustment disorder in the context of stressful periods of her life. There were times in the past where she would have qualified for the diagnosis of substance abuse disorder. Dr Byth said that she had suffered post-traumatic stress disorder and borderline personalty disorder since her abuse during the foster care: para 13.1. He considered that she required specialist psychiatric treatment which would take about two years, although this offered limited prospects of improvement in her condition rather than a cure. He said that the symptoms had been continually affecting her since the abuse took place: para 14.3.

[21] Dr Byth's report concludes in the following terms: "In my opinion, the psychological trauma she suffered would have been greatly reduced had the [department] removed her from the [foster parents] when she originally complained of sexual abuse in October 1986. After this time, she began to develop severe anger and behaviour problems, and her personality difficulties escalated. The failure of the [department] to remove her from the household at that point significantly worsened her prospects of developing PTSD and personality disorder, and promoted her feelings of isolation, depression and emotional instability; which eventually became severe and ongoing problems throughout her life."

[22] This repeated the error referred to earlier; there was no complaint of sexual abuse to the department in October 1986. Nevertheless, Dr Byth identifies the failure of the department to remove the applicant from the foster parents at that stage as being an important causative factor in relation to her psychiatric problems. If therefore that failure was negligent or in breach of statutory duty, there is evidence that subsequently psychiatric problems were caused in the legal sense by that negligence or breach.

[23] The evidence reveals that there have been quite a number of other incidents which would have been most unpleasant or stressful which the applicant has experienced in the course of her life. Some of these are referred to in Dr Byth's report, and some were raised with him in cross-examination: p.30. Dr Byth adhered to his opinion in relation to causation. That is sufficient for present purposes. It is not necessary for me to decide whether that evidence should be accepted, or whether in the light of the various things that happened to the applicant in the course of her life, it is likely that she would have suffered psychiatric problems anyway even if she had been removed from the foster parents in October 1986.

[24] In one respect the information available to Dr Byth was incomplete. He did not know that the applicant had seen a psychiatrist before, in 1989, apparently in the context of a situational crisis about one of her children: p.36. The psychiatrist is still practising (p.35) but did not retain notes taken in 1989.[23] Dr Byth would have expected that psychiatrist to have attempted to obtain a full psychiatric history when the applicant was first seen (p.37), although presumably the history of sexual abuse and the suffering of continuing symptoms associated with it were not disclosed to that psychiatrist.

[25] The applicant also received some psychiatric attention as a result of an admission to hospital in Redcliffe on 26 March 1994 following an overdose of anti-depressants.[24] That was apparently prompted by a dispute over custody of her eight month old child. There was some discussion about this with a social worker on 28 March. She was discharged from hospital that day, but saw the social worker again on 12 April 1994 for a counselling session. Arrangements were made for her to see the counsellor on a regular basis for a number of weeks, and the following week there was a follow up noted as, "Worked through issues from patient's childhood eg abuse. Patient and I to continue this next week." However the notes do not report any later attendances. The applicant's reluctance to discuss the abuse from her childhood deterred her from taking the matter any further.[25] This shows that she was still affected by that abuse, but also that she was aware that she was affected.

[26] Dr Byth said that the applicant would have been aware of the existence of the symptoms she was suffering, and, because the symptoms included flashbacks to the particular traumatic event that produced the symptoms, she would have been aware of the connection between the symptoms she was suffering and the traumatic event which produced those symptoms: pp.34-5.[26] Dr Byth agreed that it would have been easier to work out ten years ago (for example) to what extent her current problems were caused by the various different things that happened to her; apart from anything else, her life had become much more complicated since then: p.35.

[27] Dr Byth said that a patient in the applicant's position was aware that she was consciously trying to avoid being reminded of the traumatic events, but that that desire to avoid is driven by intense anxiety and depressed moods when she has the reliving experiences. Hence the desire to avoid rather than confront the issue can be seen as a product of the psychiatric condition itself: p.38.

[28] Under s 31(2)(a) of the Limitation of Actions Act 1974, the first issue is whether "a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until the date after the commencement of the year last preceding the expiration of the period of limitation for the action." Because the jurisdiction of the court in such circumstances is to extend the period of limitation so that it expires at the end of one year after "that date", for practical purposes, in circumstances where the action has already been commenced on a particular day, the issue is whether a material fact of a decisive character relating to the right of action was not within her means of knowledge until the period of one year prior to the date on which the cause of action was commenced: Pizer v Ansett Australia Ltd [1998] QCA 298 per Pincus JA.

[29] There was no dispute that the facts relied on by the applicant were material facts for the purposes of the Act and both were within the twelve months. Whether they are of a decisive character depends on whether they satisfy the requirements of s 30(1)(b). In the case of material facts going to the extent of the damages, the issue becomes whether they make the difference between an action not worth pursuing (bearing in mind whether or not there are likely to be any difficulties with liability, and the possibility of any refund) and one which is worth pursuing: Taggart v Workers Compensation Board of Queensland [1983] 2 Qd R 19.

[30] A fact is not within the means of knowledge of a person if, so far as the fact is capable of being ascertained by her, she has taken all reasonable steps to ascertain the fact: s 30(1)(c)(ii). The test of what is reasonable is an objective one applied to a person with the background and circumstances of the applicant: Randel v Brisbane City Council [1984] 2 Qd R 276 at 285.

[31] I have already referred to the two alternative bases on which the applicant puts her case. It is convenient to refer first to the question of whether the psychiatrist's report in June 2003 provided to her for the first time a material fact of a decisive character. That is similar to an issue considered by the Court of Appeal in Carter v Corporation of the Sisters of Mercy of the Diocese of Rockhampton & Ors [2001] QCA 335. In that case also the appellant relied on the proposition that she had suffered a psychiatric injury and that it had been caused by particular events in her past as amounting to the material fact. The situation was slightly different in that case, because there was evidence that that appellant had consulted psychiatrists and psychologists more than once before she saw the psychiatrist whose report was relied on. McPherson JA at para [16] said that the question is "not whether there was any expert evidence, before that date, but whether she realised the possible connection between the two, or had taken reasonable steps to find out if there was." In that case the psychiatric condition from which she suffered manifested itself in depression and drinking to excess. But she was obviously aware of the presence of those symptoms, and his Honour also treated her affidavit evidence that, because of the physical and sexual abuse that she suffered she had become a very aggressive person, as showing that "she was herself able to make a connection between her treatment at Neerkol and her mental state or behavioural condition." At para [21] his Honour said: "She was aware that the sexual abuse had affected her to the extent of changing her behaviour by making her more aggressive to others. Any further mental or psychiatric injury of which she became aware in 1998 simply went to enlarge the damages that would be recoverable by her for the wrong which might have been sued for much earlier."

[32] That suggests to me that what matters is whether the applicant is aware of her symptoms, not whether she is aware of the particular psychiatric condition that they represent, and whether she connects those symptoms with the relevant incident in the past, or whether that connection is only ascertained with the benefit of expert medical advice. That appears to be the basis of the decision in Woodhead v Elbourne [2001] 1 Qd R 220. In that case the plaintiff had experienced a range of problems, and any of them or a combination of them could have been the cause of her symptoms. She may have been led to think that possibly the relevant incidents were the cause of her symptoms but that was insufficient: p.226. It was not until a psychiatrist made a diagnosis "disentangling, as it were, all of the adverse influences in the plaintiff's life and that opinion was conveyed to her that she could be said to have been in possession of the material facts of a decisive character which, if properly advised, could lead a reasonable person to institute proceedings. What that diagnosis did was to raise the prospect of success from a mere possibility to a real likelihood." (p.227).

[33] That does not appear to be the situation here. The applicant said that her symptoms dated from the time of the abuse, and that she experienced nightmares and flashbacks triggered by events that reminded her of the abuse. It was the assaults on her by the foster father from which she had tried to distance herself.[27] Dr Byth's report para 14.8 records that there were complaints of flashback memories of being sexually assaulted in the years before she turned 21. She did not then press charges about the sexual abuse because she was sensitive and avoided talking about the assault, to avoid stirring up the symptoms, and she felt a lack of support, and concern that she would not be believed. Dr Byth said in court that he believed that those factors would have continued to operate: p.29.

[34] This in my opinion is not like Woodhead, where the applicant had (reasonably) not made the link between her substantial psychiatric problems and the particular incident sought to be the subject of the action until that was pointed out to her by the psychiatrist. Dr Byth conceded that the symptoms would have been related by her to the particular traumatic events that produced the symptoms, that is the sexual abuse, and she would have been aware of the connection between the symptoms and that abuse: p.35. The position therefore is similar to that in Carter, except that in Carter there was an absence of evidence establishing a failure on the part of the applicant to link her psychiatric condition to the abuse she had earlier suffered.[28]

[35] The applicant was aware that she was suffering persisting symptoms as a result of this abuse long before 24 July 2002, symptoms which a reasonable person in her position having taken appropriate advice would have recognised as symptoms of a condition sufficiently serious to justify a claim for damages. In addition she was always aware of the link between those symptoms and the abuse suffered at the hands of the foster father. On the basis that that abuse (or at least that part of it that occurred after October 1986) was relevantly caused by the failure of the department to remove her from the foster home in October 1986, the connection between her psychiatric injury and that failure was therefore also within her means of knowledge at all material times. That follows as a matter of inference once she knows of the connection between the psychiatric symptoms and the abuse. Relevantly in my opinion the position is the same as in Carter (supra).

[36] The applicant also relied on the New South Wales decision of Johnson v DOCS [1999] NSWSC 1156. That was a case where the applicant alleged that he was suffering from psychiatric illness, in the form of chronic depression, which manifested in anti-social behaviour, violence, criminal activity, and excessive consumption of alcohol. This was alleged to have resulted from the treatment that he had received while he was young and in the care of the state. The plaintiff deposed to his having been unaware until he received a report of a psychologist that he had suffered that illness, or the nature and extent of it, or the connection between it and the defendant's conduct. That was held to be sufficient to satisfy the requirements of the statute.

[37] That case in my opinion is readily distinguishable from the present. There are some psychiatric conditions where by their very nature the person suffering from them is going to be unaware that they exist, and therefore necessarily be unaware of their nature and extent, and be unable to link them to any particular past events. A person suffering from delusions for example will generally not be aware that that state exists. With other conditions the person suffering may or may not be aware of their presence. A person who is suffering from depression may be quite well aware that he or she is depressed, but may not be aware that this indicated the presence of some psychiatric illness or condition. If the depression is manifested in anger, violence, anti-social behaviour and excessive consumption of alcohol, the person may not even be aware that he is depressed.

[38] That is not the situation with the present applicant. Her condition of post traumatic stress disorder is simply a diagnostic label attached to a particular collection of unpleasant consequences to her of the particular traumatic events in her past. A person suffering symptoms of post traumatic stress disorder may well not know that that collection of symptoms is appropriately described in technical terms by that particular label, but will certainly know that those symptoms are present. Further, I suspect that, given the nature of the disorder, the person suffering from the symptoms will necessarily be aware of the particular trauma to which they relate. The evidence of Dr Byth indicates that that is certainly the case with this applicant, and I suspect it would always be the case. Because of this feature as well it would always be identified as an unpleasant consequence of the particular traumatic event which caused it, and would therefore be identified as an obviously unnatural condition which was caused by that event.

[39] Accordingly I do not consider that there was anything in the report of Dr Byth which amounted to a material fact of a decisive character. The fact that she might not have been aware of the particular psychiatric condition from which she suffered does not in my opinion matter; she was certainly aware of the psychiatric symptoms, and that I think is what matters. The name of the condition is just the technical label for such a set of symptoms. She may also not have been aware of Dr Byth's assessment of the degree of severity of her condition, and his prognosis for her, but those are matters which only go to enlarge the damages. Bearing in mind the knowledge she had about the persistence of her symptoms prior to 2002, that did not represent a decisive fact as to the quantum of damages.

[40] One matter which was not addressed in this judgment, or indeed in Woodhead, is whether any allowance is to be made for the fact that for most of her life the applicant has been trying to avoid thinking about these matters, trying to put them out of her life. That is probably the practical reason why no complaint was made to the police, or indeed anyone else, about the abuse, and why no action was taken within the limitation period. The other reason would have been that at the time when the limitation period expired on 10 November 1995, the idea of suing in respect of sexual abuse as a child, either the abuser or some responsible entity, was not as common as it has subsequently become. It probably would not have occurred to her anyway, even if she might otherwise have been moved to complain to the police. That factor is not one which s 31 of the Limitation of Actions Act was intended to overcome.

[41] The other issue, about the effect of the reluctance to talk or think about the events, is also not one which is readily accommodated within the framework of s 31. The legislation does not permit an extension of the limitation period where it was reasonable for the applicant not to have commenced proceedings earlier, or where the applicant had a good excuse for not doing so. It is directed specifically to a situation where material facts were not known, and could not reasonably have been known, by the applicant within such a time as to permit an action to be commenced within the ordinary limitation period. The classic case for the application of the section is one where there are latent consequences of an apparently trivial injury where a serious condition is discovered later.[29] It is essentially concerned with facts which were in a practical sense not available to the applicant in time. It is not, it seems to me, concerned with the situation where an applicant who was in possession of the important facts simply did not want to pursue the matter, for whatever reason. I do not think that the situation is changed by the fact that the desire not to pursue the issue is in a sense caused by the psychiatric injury itself. There is also a focus on what it was reasonable to do, which directs attention to what an ordinary reasonable person in the position of the applicant would have done, rather than what this applicant would have done, bearing in mind her personal emotional and psychological difficulties. A "reasonable person endowed with the knowledge and experience of the plaintiff"[30] is different from a reasonable person suffering the same psychiatric condition as the plaintiff.

[42] For these reasons in my opinion any understandable reluctance of the plaintiff to pursue this matter earlier because of her psychiatric state is not a factor which can be taken into account when assessing what was within her means of knowledge, or when assessing whether a material fact is of a decisive character. The only way it seems to me that the Limitation of Actions Act accommodates psychiatric difficulties is that, if a prospective plaintiff's mental state is such that she is not of sound mind for the purposes of the Limitation of Actions Act, the limitation period does not run against her. This is because unsoundness of mind, like infancy, is treated as a disability. At the time when the applicant says the cause of action arose, the limitation period did not begin to run against her because, in terms of the Act, she was then suffering from the disability of infancy.

[43] She ceased to be under that disability in November 1992. Had she then been of unsound mind, the limitation period would not have commenced to run: s 29. If a person in such circumstances were of unsound mind, the limitation period would not run, and the action could be taken at any time: Williams v Zupps Motors Pty Ltd [1990] 2 Qd R 493. If that were the case, it would be appropriate to dismiss the present application because s 31(2)(a) would not have been satisfied. But as long as the prospective plaintiff is of sound mind, in my opinion s 31 does not assist someone who has merely refrained from taking action because of a desire not to think about the subject matter of the litigation. It was not suggested that the applicant was not always of sound mind for the purposes of the Act.

[44] It may be that the existence of such a mental state would be relevant in determining whether it was reasonable for a person in her position to seek particular advice, But that is not for present purposes the crucial issue. This is not a case where the applicant did not find out about the decisive material fact until she obtained expert advice. In such a case, the question is whether that material fact was nevertheless within her means of knowledge because, had she sought such expert advice at an earlier time, the material fact would have been disclosed to her at that earlier time. Here, the material facts as to the existence of significant psychiatric problems, and as to their relationship to the abuse suffered by her at the hands of the foster father, and hence their relationship to the failure of the department to remove her from the foster father, were all known to the applicant.

[45] The alternative basis upon which the matter was put was that the decisive material fact was the knowledge the applicant obtained in July 2002 that the departmental officers were in possession of information which ought to have caused them to remove the applicant from the foster placement due to the foster father's apparent physical abuse of her. In written submissions on behalf of the applicant two particular matters were relied on. The first was that by May 1986 the department was aware that while the foster parents were away the applicant had complained about them to neighbours with whom she was staying. This came to the attention of a departmental officer at least by May 1986, and the matter was followed up although ultimately the officer concluded that the allegations were false.

[46] This however was not a material fact which was beyond the means of knowledge of the applicant. The applicant knew that she was complaining to the neighbours at the time she made the complaints. There was later direct involvement between her and the departmental officer in which there was some follow up from those complaints. The applicant says this took the form of her being forced to apologise to her foster parents for what she said. That shows that she was then aware that a departmental officer was aware of her complaints to the neighbours. Accordingly the discovery in 2002 of a file note showing that the department was aware in early 1986 of the complaints to the neighbours did not tell her anything she did not know at the time.

[47] The other matter relied on was a complaint in late September or early October to a departmental officer of being beaten on the back after picking strawberries and pressure from the foster parents not to return to her mother. This complaint was made directly by the applicant to the officer, and was apparently verifiable by the presence of bruises. Again, she knew at the time that she was making this complaint and the fact that she had made the complaint to the department was known to the department. Departmental file notes recording the fact that she had made that complaint did not tell her anything she did not know at the time. She also knew at the time that that complaint did not lead to her being removed from the foster parents.

[48] There is another reason why I have difficulty in seeing this as a material fact of decisive character. The applicant's submissions really proceed on the basis that it is self evident that, if there was any credible complaint of physical abuse, it ought to have resulted in the applicant being removed from the foster parents forthwith, and it was negligent not to do so.[31] There is however no evidence that that was the case according to the standards of the time, such that a failure to take that step promptly amounted to negligence, and I do not regard it as self evident. In relation to the first occasion, evidently the departmental officer investigated the matter and arrived at the conclusion that the complaints had been false. Accepting that that conclusion was erroneous, it does not necessarily mean that it was negligent. On the second occasion when it was accepted that the complaints made by the applicant were genuine, the matter was taken seriously by the department and it is apparent from the note dated 3 October 1986 that serious consideration was given to removal of the applicant at that time. However that step was not taken. As I mentioned earlier, this was at a time when there was some difference between the children as to their apparent enthusiasm to return to their mother, with the applicant showing the greatest enthusiasm for that course. The department ultimately decided to deal with the matter by closer supervision, and pressing ahead with proposed visits to the mother, and if they went well by moving on to a proposed return to the mother, which ultimately occurred in January 1987.

[49] Attitudes towards domestic discipline, and in particular corporal punishment, were different in 1986 from what they are now, and, as pointed out by Muir J in Carter (supra) at [37], there are difficulties in assessing now acts and omissions by reference to standards and values at a significant point in the past, here almost 20 years ago. In the absence of at least some evidence supporting the proposition, I would be reluctant to proceed on the basis that it was negligent in 1986 to fail to remove the foster child promptly from care because some corporal punishment was being applied, in circumstances where the department's intention was to attempt to return the child (and her sisters) to their mother anyway within a few months, particularly if there was greater supervision in the interim. That supervision occurred to some extent at least, and did not detect any continuing problems. The notes record an impression that the children were happy. The childcare officers seem always to have been quite favourably impressed with the foster parents.

[50] It may well be that these days departmental officers who adopted such an approach would be regarded as naive. But there is no evidence that that would not have been regarded as an appropriate response in 1986. This is not to say that it was not negligent; it is just not obviously negligent, and there is no evidence on the point. There are a number of references to difficulties the foster parents were having with the applicant, attributed to her behaviour. There are also references to some behaviour problems of the applicant before she went to these foster parents.[32] In these circumstances, it is understandable that the childcare officers might have preferred to accept the version given by the foster parents.

[51] There is some additional material in the files however which needs to be considered. A case review report dated 20 May 1988 was prepared by a childcare officer and the area manager.[33] When originally released some text had been deleted because it referred to people other than the applicant, specifically her sisters, and this was omitted to reflect privacy considerations. I became concerned during the hearing that there were some documents which might well contain material relevant to the issues which ought to be disclosed in full, at least to the court, and after the hearings full copies of some documents were disclosed, including that document.[34]

[52] This document refers to aspects of the behaviour of the applicant and particularly her sisters in April 1986 when they were staying with the neighbours of the foster parents, which apparently had been reported to the department by them. The report notes "this type of behaviour indicates that the children may have been exposed to sexual abuse in the past." At the time this note was prepared the applicant was no longer with those foster parents, and there was no intention to return her to them, so it was then not relevant to the placement of the applicant to consider whether the abuse might have been at the hands of the foster father. However at that time apparently the other two sisters were still with those foster parents, yet it does not appear this led to any concern about the suitability of the foster parents. Perhaps it was assumed that any sexual abuse occurred prior to the time when the children were removed from their mother.

[53] This is the only reference that I have been able to find in the material to some concern about possible sexual abuse, and this was prepared in 1988. It is not clear whether this was recognised in 1986 as an indication of possible sexual abuse in the past and, if so, what if anything was done about it. It does not even appear when this information came into the possession of the department, that is, when it was reported to them by the neighbours. I cannot find any note of any visit to the neighbours by a childcare officer, or any other contact with them about this, although there are follow-up notes about other matters involving the neighbours.

[54] That the applicant and her sisters were behaving in this way at that time would have been known to the applicant. But there is no reason to think that she knew that the department knew of this behaviour at any time prior to October 2003 when this full document was released. I accept that that fact was not within the means of knowledge of the applicant. Apart from the fact that it was not provided initially when the request for the file was made (because one incident of behaviour referred to identifies one of the applicant's sisters), I also accept that it was reasonable for the applicant not to seek access to her departmental file earlier than she did.

[55] Whether a fact was within the means of knowledge of the applicant depends on whether she has made all reasonable enquiries. What enquiries are reasonable is an objective question, but is to be decided by reference to the behaviour to be expected of a reasonable person endowed with the knowledge and experience of the applicant.[35] There was no reason for a reasonable person in her position to be concerned with the contents of the departmental file, or to think that that might have thrown any light on whether the department ought to have removed her earlier. Although if one is contemplating legal action against a government department obtaining a copy of the file is an obvious enough step to take, it only becomes one at the point where it is reasonable to contemplate at least the possibility of a claim against the department. By way of analogy, if one is concerned about the possibility of lung disease a chest x-ray is an obvious precaution to take. But it is not unreasonable not to undertake a chest x-ray if and so long as there is no particular reason to be concerned about the possibility of lung disease.

[56] This is certainly a material fact, but the issue remains whether it is of a decisive character. Does it raise the prospect of success from a mere possibility to a real likelihood?[36] Again, there is no evidence that this sort of indication of possible sexual abuse in the past ought to have resulted in the prompt removal of the children from their current placement, or even a closer investigation (which might or might not in all the circumstances have resulted in discovery of the abuse, or identification of the foster father as the abuser). I am not prepared to assume in the applicant's favour that, according to the standards of the time, it was negligent for the department not to have promptly removed the applicant from the foster parents simply because she and her sisters were displaying some unusual behaviour which was suggestive of possible sexual abuse in the past.

[57] That is also complicated by the fact that it was conceded by the respondent that the applicant has shown a prima facie case. The applicant's case on liability as I mentioned did not directly refer to this material in the file, but was based on the proposition that, because there had been credible complaints of physical abuse in 1986, the applicant ought to have been removed from the foster parents anyway and it was negligent not to do so. If that is correct, then the additional fact that there was known behaviour suggestive of possible sexual abuse was not a material fact of a decisive character, because on the basis of the facts known previously, the applicant had a good cause of action against the department. Once sufficient facts are already known or within the means of knowledge of the applicant to justify litigation, discovery of a further fact which strengthens the applicant's case, or reveals an additional basis for a claim, is not decisive. The crucial characteristic of a decisive fact is that it is one that makes the difference between a claim not worth pursuing and one which is worth pursuing. Additional facts about a claim worth pursuing anyway will not be decisive, nor will additional facts which still do not make a claim worth pursuing.

[58] If the applicant's proposition, that because of the knowledge of the complaints of physical abuse, the applicant ought to have been promptly removed from the foster parents, is correct, it follows that this fact is not decisive. Alternatively, if these are matters which depend on further evidence, which is not presently before the court, the fact is still not decisive. The respondent's concession means that I do not have to consider whether the requirements of s 31(2)(b) are satisfied, but I still have to consider whether this material fact is decisive. But for the respondent's concession about the prima facie case, I would have regarded it as not decisive because of an absence of evidence that it was indicative of negligence. I do not think that that concession changes things; it simply means that, if it is correct, the fact is not decisive for a different reason.

[59] It follows that I do not consider that the applicant has shown that there was anything in the departmental files which amounted to a material fact of a decisive character. Accordingly the applicant has not satisfied s 31(2)(a) on either basis.

[60] I accept that it is not necessary for the applicant to show a great deal to satisfy this requirement. In Wood v Glaxo Australia Pty Ltd [1993] QCA 114; [1994] 2 Qd R 431 at 434 Macrossan CJ said: "The applicant must demonstrate something like a prima facie case. The evidence need not at the stage at which the application is brought be in a form which would be admissible at trial and it may indeed be hearsay. It will not be possible to predict whether the plaintiff's evidence will prevail at trial when it will be subjected to challenge and forced to confront the opposing evidence of the defendant, but it is probably accurate enough to say that an applicant will meet the requirement imposed by s 31(2)(b) if he can point to the existence of evidence which it can reasonably be expected will be available at the trial and which will, if unopposed by other evidence, be sufficient to prove his case."

[61] One case referred to in Wood was Dwan v Farquhar [1988] 1 Qd R 234, where an extension of the limitation period was sought by a person who had contracted AIDS as a result of a blood transfusion during an operation in May 1983. The application was unsuccessful at first instance and on appeal because the applicant could not establish the requirements of s 31(2)(b). In that application there was no evidence to the effect that particular precautions ought to have been taken as at May 1983 to guard against the acquisition of AIDS by a blood transfusion, but counsel for the applicant submitted that the fact that the applicant had contracted the disease was sufficient to demonstrate negligence, and relied on the maximum "res ipsa loquitur". As to this Matthews J said at p.236: "I do not think that sufficient relevant facts were known at the time the appellant received the transfusion. This follows, in my opinion, from the development of knowledge of AIDS and the lack of suggestion in the course of the appeal of any standards or practices which may relevantly have been adopted to prevent its spread. Emergence and recognition of AIDS as something to be dreaded and therefore guarded against, and the widespread publicity given to it, have in recent months tend to make experts of us all; but in the context of an operation performed and a blood transfusion given in May 1983, I am unable to accept counsel's submission that the appellant could not, in the ordinary course of events, have contracted AIDS if the respondents had used proper care."

[62] Before considering the claim in negligence, it is convenient to refer to the alternative claim for breach of statutory duty. Reliance was placed on s 58 of the Childrens Services Act 1965-1980. That section provided as follows:

"(1) When a child is admitted to the care and protection of the Director either by declaration of the Director or by order of a Children's Court it shall be the duty of the Director to utilise his powers and the resources of the Department so as to further the best interests of such child in care and, in the performance of that duty and without limiting the Director's discretion in that regard, the Director may, from time to time, make use of such facilities and services as may be available or be made available by -

(d) placing such child in care in an institution established or licensed pursuant to Part IV of this Act;

(e) placing such child in care in a boarding school, hostel or any other place considered by the Director to be in the best interests of such child in care.

The director may impose such conditions upon the use he makes or proposes to make of any of such facilities and services as he considers to be in the best interests of the child in care concerned.

(2) A child admitted to the care and protection of the Director shall not be placed, whilst so admitted, in a child training centre except with the approval of the Minister first had and obtained."

[63] There is nothing in the Act which indicates expressly whether or not a breach of this section gives a person a right to sue for damages. For the argument to be of assistance to the applicant it is necessary for the section to be construed as imposing an absolute duty on the director, that is an obligation in fact to further the best interests of the child, not merely to take reasonable care to achieve that result. If on its true construction the obligation is no more than to take reasonable care, an applicant unable to show a cause of action in negligence would be unable to show a cause of action for breach of s 58. The applicant submitted that s 58 had been contravened because the statutory duty was not fulfilled, and that such breach had caused the injury the subject of the action, and that it was not necessary to show negligence to establish breach of s 58. That it seems to me involves the assumption that s 58 on its true construction imposes an absolute duty.

[64] I am not aware of any Queensland decision which deals with the question of whether s 58 confers a private right of action for damages for breach, and I was not referred to any in supplementary written submissions in relation to this point. In X v Bedfordshire County Council [1995] UKHL 9; [1995] 2 AC 633 the House of Lords considered a number of cases involving claims for breach of statutory duty, or negligence in the performance of statutory powers, some of which involved legislation for the care and protection of children, although nothing directly analogous to the present. Nevertheless the judgment is a useful discussion of principle in this area by a House which was virtually[37] unanimous. Lord Browne-Wilkinson said at p.731: "The principles applicable in determining whether such statutory cause of action exists are now well established, although the application of those principles in any particular case remains difficult. The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise to any private law cause of action. However, a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty. There is no general rule by reference to which it can be deduced whether a statute does create such a right of action but there are a number of indicators. If the statute provides no other remedy for its breach and the parliamentary intention to protect a limited class is shown, that indicates that there may be a private right of action since otherwise there is no method of securing the protection the statute was intended to confer. If the statute does provide some other means of enforcing the duty that will normally indicate that the statutory right was intended to be enforceable by those means and not by private right of action. ... However, the mere existence of some other statutory remedy is not necessarily decisive. It is still possible to show that on the true construction of the statute the protected class was intended by parliament to have a private remedy. ... Although the question is one of statutory construction and therefore each case turns on the provisions of the relevant statute, it is significant that your Lordships were not referred to any case where it had been held that statutory provisions establishing a regulatory system or a scheme of social welfare for the benefit of the public at large had been held to give rise to a private right of action for damages for breach of statutory duty. Although regulatory or welfare legislation affecting a particular area of activity does in fact provide protection to those individuals particularly affected by that activity, the legislation is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general. ... The cases where a private right of action for breach of statutory duty have been held to arise are all cases in which the statutory duty has been very limited and specific as opposed to general administrative functions imposed on public bodies and involving the exercise of administrative discretions."

[65] In that case it was held that none of the relevant statutes conferred a private right of action. When dealing with the particular provisions then in question, his Lordship said at p.747: "It is true that the legislation was introduced primarily for the protection of a limited class, namely children at risk, and that until April 1991 the legislation itself contained only limited machinery for enforcing the statutory duties imposed. But in my view those are the only pointers in favour of imputing to parliament an intention to create a private law cause of action. When one turns to the actual words used in the primary legislation to create the statutory duties relied upon in my judgment they are inconsistent with any intention to create a private law cause of action." His Lordship went on the analyse the particular statutes in a way which is not directly relevant, although it is significant that attention was paid to the formation of subjective conclusions on the part of the statutory authority.

[66] The same two considerations referred to by his Lordship are present in this case, but again that is all. The duty is not expressed in specific terms, but in the most general terms, and the section expressly provides that the director has a discretion in the performance of the duty. This is not a case of legislation which creates a higher or more specific standard of care.

[67] In Byrne v Australian Airlines Ltd (1995) 185 CLR 410, Brennan CJ, Dawson and Toohey JJ said at p. 424: "One generalisation that can be made is that where the persons upon whom the statutory obligation is imposed are under an existing common law duty of care towards the persons whom the statute is intended to benefit or protect, the statutory prescription of a higher or more specific standard of care may, in the absence of any indication of a contrary intention, properly be construed as creating a private right. Thus it is that Factories and Shop Acts and other legislation designed to protect the health and safety of employees in the workplace have been held to impose duties the breach of which gives rise to a right to sue for damages." The general terms of the duty was also regarded as a factor in telling against the creation of a private right of action by the Court of Appeal in Heil v Suncoast Fitness [1998] QCA 419, where the majority said at para [10]: "The duty created by s 10 is perfectly general, not specific." In that case their Honours had regard to "the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation: Sovar v Henry Lane Pty Ltd [1967] HCA 31; (1967) 116 CLR 397 at 405, Their Honours also noted at [14] that there was a degree of improbability about the proposition that the various sections of the Workplace Health and Safety Act 1989 then under consideration intended to confer a private right of action other than on employees, and ultimately held that s 10 did not confer such a right of action.

[68] That such a right of action was conferred by s 9 of that statute was confirmed by the Court of Appeal in Schiliro v Peppercorn Childcare Centres Pty Ltd [2000] QCA 18; [2001] 1 Qd R 518. In that case considerable reliance was placed on the history of acceptance that legislation of this nature created an actionable duty in favour of employees, and that the statutes imposed specific and generally more rigorous duties on employers than were imposed at common law, and otherwise contained provisions which were of assistance to employees in litigating such claims. Their Honours at p.523 also noted a statement of Dixon J as he then was in O'Connor v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464 at 477-8: "The difficulty is that in such a case the legislature has in fact expressed no intention upon the subject, and an interpretation of the statute, according to ordinary cannons of construction, will rarely yield a necessary implication positively giving a civil remedy. As an examination of the decided cases will show, an intention to give, or not to give, a private right has more often than not been ascribed to the legislature as a result of presumptions or by reference to matters governing the policy of the provision rather than the meaning of the instrument." That does not make it any easier for someone in my position. In general however the judgment in that case focuses very closely on the particular legislation then under consideration, and the history of similar legislation and decisions in relation to it.

[69] Counsel for the applicant referred me to dicta in two single judges decisions in New South Wales, TC v New South Wales [1999] NSWSC 31 and Johnson v DOCS (supra) where at least the possibility of a private action for damages for breach of a statute dealing with the welfare of children was recognised, although in the context where it was held that there was also a sufficient claim based solely in negligence.

[70] In the present case the absence of any specific requirements to be performed, and the existence of a discretion on the part of the director as to how the objective of furthering the best interests of the child in care is to be performed, suggest to me that it was unlikely that the legislature was intending to impose by the section an absolute duty to produce a particular outcome, the best interests of the child, a breach of which would be actionable in damages. Apart from anything else, it is going to be very difficult to know even retrospectively what is or is not in the best interests of the child, although in circumstances where the child has suffered to the extent the present applicant has, it is tempting to assume that almost any alternative would have been a better outcome. However, the facts in Carter (supra) show that sometimes children in institutions suffer horribly, and there are all too many cases before the courts[38] where children who are in the custody of their parents, or at least their mothers, suffer physical and sexual abuse at the hands of someone or other. There is no guaranteed safe alternative. Even today when there is I suspect a much greater recognition of the potential dangers which children may suffer in various circumstances, it is not necessarily going to be very helpful when making a decision about the placement of a particular child to know that there is some real risk of serious harm whatever course is followed. In these circumstances, it seems to me most unlikely that the legislature intended to impose an absolute duty on the director to secure what turned out to be the best available outcome for the child.

[71] In my opinion on a consideration of the various factors referred to earlier I conclude that s 58 does not confer a private right of action. It is simply a statement of legislative direction as to the policy the director is to pursue, while giving the director a wide general discretion as to how that policy is to be pursued. As well, I would not construe it as imposing an absolute duty. Accordingly it is necessary for the applicant in order to satisfy s 32(2)(b) to show there is evidence of negligence.

[72] As I have indicated, I have some difficulty in seeing that the material presently available satisfies that requirement. There is no evidence before me that, applying the standards of 1986, reasonable care required either the department or one of its officers to decide to remove the applicant from the foster parents without further delay, that is to say, that no reasonably careful department or childcare officer would have failed to take that step in the circumstances. However, counsel for the respondent in supplementary written submissions has conceded that there is a prima facie case for the applicant against the respondent. It may well be that this concession was made on the basis of knowledge as to what evidence would be available at a trial which is more extensive than is apparent to me from the material presently before the court. Whatever the explanation may be, I will proceed on the basis that it is conceded that s 31(2)(b) is satisfied. For the reasons given above however in my opinion the requirements of s 31(2)(a) are not satisfied and the application must be dismissed.

[73] In these circumstances it is not necessary for me to exercise my discretion, but in case a different view should be taken elsewhere I should at least make findings of fact in relation to the various matters raised and relied on in relation to the discretionary issues.

[74] The respondent has attempted to locate a number of the childcare officers and other officers who were involved at relevant times for the applicant's care.[39] The respondent's solicitor identified six relevant people. The childcare officer who was supervising the applicant's placement in the latter part of 1986, Ms Burton, resigned from the department on 10 March 1995. The respondent's solicitor has not been able to trace her. It is apparent from a memo[40] that she wrote on 20 November 1986 that she at that time had a distinctly favourable view of the foster parents. Whether she would now be in a position to enlarge upon the basis for that assessment would depend on the extent to which she retained some memory of events some 18 years ago. It would be unsurprising if she did not, but if the respondent cannot find her that avenue would be closed. There would be I suppose some possibility of her turning up, but on the other hand, had proceedings been commenced within the limitation period she would then have still been working for the department.

[75] The acting supervisor who wrote the memo of 3 October 1986[41] left the department on 8 April 1987. The respondent's solicitor has been able to locate her. She has no independent recollection of the applicant, or the foster parents, and even after parts of the file note of 3 October 1986 were read to her she stated she was having trouble recalling them.[42] She is of particular importance because she and the missing childcare officer are the ones on whose decisions the applicant's case particularly focuses, and she was the more senior person. Another childcare officer who was involved in 1987 when the applicant was removed from the foster parents resigned from the department in November 1989. He is and has been since June 1999 receiving treatment for management of a psychiatric condition which renders him fragile and vulnerable to stress as a result of which his psychiatrist has expressed the opinion that he ought not to be appearing as a witness in court.[43] In these circumstances it is unlikely that the court will receive the assistance of any useful evidence from him.

[76] Another childcare officer, Ms Campbell, who prepared the case review[44] of 20 May 1988 left the department in June 1990. The respondent's solicitor was able to contact her, but she had no recollection of the applicant or the foster parents, even after she was reminded of aspects of the case note. It may be that if she saw more of the file her memory might be refreshed, but it appears that with the passage of time she has lost any independent recollection of this matter. This might be of some significance as it is unclear whether the reference in that document to the signs of possible past sexual abuse in the behaviour of the children while they were staying with the foster parent's neighbour in early 1986 were recognised as such at that time, or only recognised as such subsequently, and after October 1987.

[77] The officer who initially conducted the assessment of the foster parents in December 1984 has not been located. Finally, an officer whose involvement seems to have been more during the period after the applicant left the foster parents has been located, but he appears to have little recollection of the matter.

[78] In general therefore it appears that the respondent would be unlikely to get much assistance now from witnesses to amplify or explain the content of the files. The fact that the files are available is of some significance, but the response when attempts have been made to locate relevant witnesses merely tends to confirm the assumption that memories tend to fade with time, and that it is difficult for witnesses to recall matters of detail after such a long period.

[79] Because of the information recorded in the files however it may well be that issues of liability will turn more on the question of what was the appropriate standard of care, and what responses were dictated by that standard at the relevant time. The respondent has not sought to show any inability to obtain at this time evidence directed to that issue, and presumably relevant material, either in the form of internal policy manuals, or academic writing, or perhaps even surviving experts, will be available. I will assume that it is. I suspect that that would be the focus of any contest on liability rather than the details of what was done in this case, although that may well be simply because of an inability of the people concerned now to recall anything not recorded in the files.

[80] There is also the consideration referred to by Muir J in Carter, that the passage of time can make it more difficult properly to apply the standards of the time when assessing questions of negligence. That is likely to be a matter of some importance if the case ultimately turns as I suspect it will on the issue of whether the standards at the time were breached.

[81] There is the further consideration that it will be that much more difficult because of the passage of time to determine to what extent the applicant's psychiatric problems are attributable to a failure to remove her from the foster parents some time in 1986. That was always going to be a difficult question, bearing in mind the applicant's history. There is some material in the files suggesting that there were some behavioural problems even before the applicant went to the foster parents.[45] She also had other problems, having been diagnosed with epilepsy in August 1982. In January 1983 she took an overdose of epilepsy tablets, which resulted in a massive fit leading to her admission to the Toowoomba Hospital.[46] There is also the consideration that the applicant has had quite a complicated life with a number of other unpleasant features which may well have had psychiatric consequences anyway, some of which occurred after the limitation period expired. As a general proposition, it would have been easier to identify the particular consequences of a failure to remove the applicant in 1986 earlier rather than later.

[82] The applicant accuses the foster father of quite serious emotional, physical and sexual abuse prior to October 1986, when the applicant says the department should have removed her, and it is quite plausible that there would have been significant lasting psychological consequences of that conduct anyway. The defendant could only be responsible to the extent to which those consequences had been made worse. The determination of that issue is also likely to have been made more difficult because of the passage of time. This is therefore not a case where issues of quantum are relatively straightforward and largely unaffected by the passage of time; on the contrary, this is a case where the issues of quantum are complicated and likely to have been made significantly more difficult to resolve because of the passage of time.

[83] To some extent these factors impact on the applicant as well, because she has the onus of proving what her loss was. But the respondent has the onus of showing that, even if the applicant had been spared abuse from the foster father after October 1986, other incidents in her life would have been likely to cause some degree, perhaps a significant degree, of psychological harm of a similar nature anyway: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158. The psychiatrist consulted by the applicant in September and October 1989 has no records relating to the applicant, and no recollection of her.[47] The respondent's solicitor has tried to obtain files from other doctors in relation to the applicant, but this has either been unsuccessful because some doctors have destroyed their files or has revealed nothing which throws new light on whether there was any abuse and what its effects might have been.

[84] In Woodhead (supra) her Honour "not without some anxiety" (p.228) concluded that this discretion ought to be exercised in favour of the plaintiff. Her Honour noted that despite the dimming of memory, no particular witness, document or circumstance appeared to be lost, and that there had been no great delay by the plaintiff in instituting the proceedings against the background of the long passage of time when the alleged acts took place. The acts were alleged to have occurred between July 1981 and December 1987. The plaintiff turned 18 in February 1992, and the proceeding had been commenced in December 1997, less than three years after the limitation period had expired, and only ten years after the conclusion of the period during which the acts had occurred. Although her Honour did not say so, it occurs to me that the fact that the defendant in that case was the actual wrongdoer, rather than someone sued on the basis of a failure to prevent harm from another, may have been taken into account.[48]

[85] On the other hand, in Carter (supra) reference was made to the very great delay, a period of some 25 to 30 years before the application for extension was heard. Some potential witnesses were very old and their memories had faded and some had moved away or died: [18]. Reference was also made to the analysis of McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1997) 186 CLR 541. Muir J said that neither the horrific nature of the wrongs suffered by the appellant nor the nature of the responsibilities of the State made it inappropriate that the limitation period not be extended: [35]. That was a case however where the delay was longer than in the present, and where there was more reason to think that useful evidence from witnesses would for one reason or another no longer be available.

[86] The present case is in an intermediate position, the application being brought just under 17 years after the date on which the negligence is alleged to have occurred, and almost eight years after the limitation period has expired. It is one where because of the passage of time a difficult exercise in assessing quantum has been made a good deal more difficult, and where a number of the departmental officers concerned are either not available or have no independent recollection of the circumstances. In these circumstances I think there would be some real prejudice to the defendant in being required now to defend this action. I am conscious of the fact that, in the light of her mental state, it was understandable that the applicant did not pursue this issue earlier. Nevertheless in the light of all of the relevant considerations I would conclude that the balance lies against exercising the discretion. If I had concluded that the discretion were open in the matter, I would nevertheless exercise it against the applicant.

[1] Affidavit of Millwater filed 15 July 2003, para 3.

[2] Affidavit of the applicant filed 15 July 2003.

[3] Document E95; an earlier report of 21 December 1984 is to similar effect: document A4.

[6] Document E113 which also records complaints to the foster parents of a great deal of physical punishment from the earlier foster parents, regarded by the officer as lies.

[8] See for example document E106 in Part B of Exhibit ACH2 to the affidavit of the applicant filed 15 July 2003.

[12] Document E124; the childcare officer still strongly supported the foster parents: document A13.

[16] Affidavit filed 15 July 2003 para 15.

[17] Documents F7, F8; but see document C3 which gives later dates.

[19] She has now no relationship with her mother: p.6.

[20] See the applicant's statement to the police para 85, and affidavit of Fyfe filed 2 September 2003, Exhibit ASF-18.

[21] Affidavit filed 15 July 2003 para 19-20.

[22] Affidavit of Millwater filed 15 July 2003, Exhibit DEM1.

[23] Affidavit of Fyfe filed 2 September 2003 para 38. That is what Dr Byth would expect: p.37.

[24] See the hospital records, affidavit of Fyfe, Exhibit ASF-34.

[26] The applicant said she knew she had problems (p.41) which she described as "problems of memories" (p.42), and referred to flashbacks.

[27] Affidavit filed 15 July 2003 para 36, 37.

[28] See Carter (supra) at [32] per Muir J.

[29] Pizer (supra) at [20] per Thomas JA.

[31] If this is so there was no decisive material fact in the files. She always knew the facts that were material, if that is all that must be shown.

[32] Affidavit of Millwater sworn 28 October 2003 Exhibit DEM-2, p.2. See also documents E56, E60, E66, E94.

[34] A copy is Exhibit DEM-2 to the affidavit of Mr Millwater sworn 28 October 2003. I give leave to the applicant to rely on this further affidavit.

[35] Pizar v Ansett Australia Ltd [1998] QCA 298 at [15] per Thomas JA.

[36] Sugden v Crawford [1989] 1 Qd R 683 at 686, cited in Woodhead (supra) at p.227.

[37] The only exemption was that one of the five law lords dissented on one relatively minor point.

[42] Affidavit of Fyfe filed 2 September 2003 para 20.

[45] Affidavit of Millwater sworn 28 October 2003 Exhibit DEM-2, p.2. Apparently these developed after 1978: document E20. See also E56, E60, E66, E94.

[48] Cf. Carter (supra) at [98] per Atkinson J.

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Judgment (120 paragraphs)

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Cases Cited (5)