NF v State of Queensland [2005] QCA 110

SUPREME COURT OF QUEENSLAND

CITATION: NF v State of Qld [2005] QCA 110

PARTIES: NF (applicant/respondent) v STATE OF QUEENSLAND (respondent/appellant)

FILE NO/S: Appeal No 8648 of 2004 / SC No 2309 of 1997

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 15 April 2005

DELIVERED AT: Brisbane

HEARING DATE: 23 March 2005

JUDGES: Williams and Keane JJA and Holmes J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: **1.**Appeal dismissed / **2.**Appellant to pay respondent's costs of the appeal to be assessed

CATCHWORDS: LIMITATION OF ACTIONS - POSTPONEMENT OF THE BAR - EXTENSION OF PERIOD - CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES - KNOWLEDGE OF MATERIAL FACTS - MATERIAL FACTS OF A DECISIVE CHARACTER - where respondent commenced action for personal injuries suffered while in the care of the appellant in 1968 - where appellant pleaded that the action was barred by limitation of actions legislation - where respondent successfully obtained order that limitations period be extended - where respondent pleaded that causal link between State care and her psychological problems was not known until consultations with a psychologist in 1996 - where appellant contended this fact was revealed during previous psychiatric treatment - whether respondent could prove that material fact of decisive character only came within her means of knowledge in 1996 - whether respondent had acted unreasonably in failing to pursue further inquiries before that time / LIMITATION OF ACTIONS - POSTPONEMENT OF THE BAR - EXTENSION OF PERIOD - CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES - EVIDENCE TO ESTABLISH RIGHT OF ACTION - where appellant did not deny owing duty of care to respondent - where evidence adduced by respondent established prima facie breach of duty of care - whether evidence sufficient to establish a right of action / LIMITATION OF ACTIONS - POSTPONEMENT OF THE BAR - EXTENSION OF PERIOD - POWER OF COURT TO EXTEND TIME - where trial judge concluded that passage of time did not prevent a fair trial - where good faith and honesty of those providing care on behalf of the State not in issue - where there is a fully documented record of treatment to which respondent was subjected - where it is the reasonableness of disciplinary proceedings that will be assessed - whether there was a likely prospect of a fair trial notwithstanding the passage of time / Limitation of Actions Act 1974 (Qld), s 11, s 30, s 31 / Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, applied / Carter v The Corporation of the Sisters of Mercy of the Diocese of Rockhampton & Ors [2001] QCA 335; Appeal No 8777 of 2000, 24 August 2001, discussed / Healy v Femdale [1993] QCA 210; CA No 37 of 1992, 9 June 1993, cited / Hopkins v State of Queensland [2004] QDC 021; DC No 2258 of 2003, 24 February 2004, considered / Kosky v Trustees of Sisters of Charity [1982] VR 961, cited / Royal North Shore Hospital v Henderson (1986) 7 NSWLR 283, considered / Stephenson v State of Queensland [2004] QCA 483; Appeal No 7621 of 2004, 17 December 2004, distinguished / Woodhead v Elbourne [2000] QSC 042; [2001] 1 Qd R 220, applied / Young v The Commissioner for Fire Service [1997] QSC 43; SC No 2005 of 1991, 24 March 1997, cited

COUNSEL: R V Hanson QC, with D J Kelly, for the appellant / R C Morton for the respondent

SOLICITORS: C W Lohe, Crown Solicitor, for the appellant / MurphySchmidt for the respondent

WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Keane JA wherein all relevant background facts are set out. I agree with the reasoning therein, but wish to add some brief additional reasons for arriving at the conclusion that the appeal must be dismissed.

In my view it is clear from s 30(1)(b)(ii) and s 30(1)(c)(ii) of the Limitation of Actions Act 1974 (Qld) (fully set out in the reasons of Keane JA) that in particular cases the personal circumstances of the person seeking relief pursuant to the Act will be of vital importance. One only has to have regard to the following words in order to demonstrate that:

"the person . . . ought in the person's own interests and taking the person's circumstances into account" [s 30 (1)(b)(ii)]

"as far as the fact is able to be found out by the person " [s 30(1)(c)(ii)].

Those words in s 30(1)(b)(ii) were considered and applied in the recent series of cases involving applications for extension of time by undercover police operatives: Russell v State of Queensland [2004] QCA 370; Morris v State of Queensland [2004] QCA 371; Stephenson v State of Queensland [2004] QCA 483; Reeman v State of Queensland [2004] QCA 484; and Bougoure v State of Queensland [2004] QCA 485. Further reference could be made to the observation by this court in Healy v Femdale Pty Ltd [1993] QCA 210: "There is no requirement to take "appropriate advice" or to ask appropriate questions if in all the circumstances it would not be reasonable to expect the plaintiff to do so." In similar vein is my observation in Young v The Commissioner of Fire Service [1997] QSC 43: "To my mind it is of critical importance here that the applicant's psychiatric condition prevented him from appreciating the nature and significance of the injury he had suffered and its likely consequences. The very psychiatric condition in question militated against the applicant knowing its seriousness and probable consequence."

Against that background the evidence of Dr Atchison under cross-examination is of real significance. The doctor concluded as summarised by Keane JA: "The respondent did not press on with therapy which might have led to the discovery of the relevant causal nexus between Karrala House and her condition because the avoidance of the pain of confronting that fact was an aspect of her condition." The respondent had been subjected to so many traumatic events in her early life that in the circumstances it was not unreasonable for her to have acted as she did and to have responded to medical advice in the way she did. It was clearly open to the learned judge at first instance to find, as he did, that it was only the consultation in September 1996 with the psychologist Ms Bretag that made the respondent aware of the causal connection between her punishment in Karrala House by way of "solitary confinement" for 88 days (or maybe 119 days) and aspects of her psychiatric condition. That undoubtedly was a material fact of a decisive character relating to her right of action.

In the circumstances the appeal should be dismissed with costs to be assessed.

KEANE JA: On 12 March 1997, the respondent commenced an action against the appellant claiming damages for injuries suffered by her while she was in the care and control of the Director of the Department of Children's Services ("the Director") in 1968 at an institution called Karrala House. The appellant pleaded in its defence that the causes of action alleged by the respondent arose more than three years before the action was commenced, and that, accordingly, the respondent's claim is barred by s 11 of the Limitation of Actions Act 1974 (Qld) ("the Act"). In order to overcome that plea, the respondent applied for an order pursuant to s 31 of the Act for the extension of the limitation period to the date on which her proceedings had been commenced. That application was granted by the learned primary judge; and it is from that decision that this appeal is brought.

The appellant does not seek to attack his Honour's findings of primary fact. The appellant is concerned to challenge the legal conclusions which were said to follow from those facts. The appellant originally opposed the application on three grounds; and these grounds remain the bases on which the learned primary judge's decision is now attacked.

Background

In April 1997, Dr Atchison provided the respondent's then solicitors with a report in which Dr Atchison opined that:

"[The respondent's] abuse has had a permanent and devastating effect on her personality development and psychological health.

In particular, confinement at Karrala House has left her suffering from disabling claustrophobia and again shattered her ability to trust people who should have been caring for her. Instead of recognizing her distress at the predicament she was in in her life, staff at Karrala House compounded her problems by their treatment of her.

I believe [the respondent] is suffering a permanent psychiatric disability - post traumatic stress disorder and claustrophobia - as a result of her incarceration in Karrala House. She has always been aware of her psychological problems, but has never sought help until recently because remembering the events causes her great distress. I would rate her permanent disability as 20 per cent.

Her psychological conditions have affected her choice of employment, ie she is unable to work in confined areas. However, work has been a healing experience and has generally helped her to overcome some of the scars of her past. I do not believe her psychological condition plays a major part in her current incapacity to work."

The respondent was born on 2 June 1955. She was 12, approaching 13, years of age when she was first committed to the care and control of the Director. Previously she had endured a difficult childhood, being placed in an orphanage when aged 18 months. She remained in the orphanage for 10 years. She says that she was physically abused by the staff at the orphanage, and that she was sexually abused by men who "took [her] out for the day" from the orphanage. She says that when she was 11, she went to live with her father who, she says, physically abused her. She says that at that time she was raped by three men. She ran away from her father, and was placed in another institution from which she ran away. As a result, she was committed to the care and control of the Director and sent to Karrala House.

After leaving Karrala House, she went to live with her mother who, she says, rejected her. As a young teenager, she left her mother's house. She was taken into police custody. She says that, on her release from police custody, she spent some time in another institution. At other times she worked as a prostitute.

It is in the light of this unfortunate personal history that the respondent based her application for an extension of time under s 31(2) of the Act on the footing that, until she consulted Ms Bretag, a psychologist whom she consulted on several occasions in 1996, the fact that her treatment at Karrala House had caused or contributed to her psychiatric condition was a fact which was not within her means of knowledge.

The appellant contended that this fact came within the respondent's means of knowledge many years before when she was treated for her depression in her early 20's by Dr Lepage, a psychiatrist. He prescribed medication and told her that until she could identify and discuss her problems, she could continue to have depressive episodes.

The respondent's evidence was that she was always aware that she had psychological problems but, until she was advised by Ms Bretag in September 1996 that these problems had been caused or contributed to by the treatment she had experienced at Karrala House, she was not aware that there was a causal connection between her problems and the treatment that she had experienced at Karrala House.

The learned primary judge accepted the respondent's evidence that it was not until her consultation with Ms Bretag in September 1996 that she became aware of the causal nexus between her treatment at Karrala House and her psychiatric problems. The many harrowing aspects of the respondent's childhood support this finding in the sense that the respondent was not in the position of a person who has suffered only one trauma in the course of her life, and who therefore knows inevitably that the sequelae of the trauma were caused by it.

The issues

The appellant contends that:

the respondent failed to prove that a material fact of a decisive character relating to her right of action came within her means of knowledge only after 12 March 1996 in accordance with s 31(2)(a) of the Act;

the respondent failed to demonstrate that there is evidence to establish the right of action upon which the respondent seeks to sue in accordance with s 31(2)(b) of the Act; and

by reason of the passing of time between the events of 1968 and now, the appellant would be significantly prejudiced in terms of the prospect of a fair trial if it is deprived of its limitation defence.

I shall discuss these issues in turn after first setting out the relevant provisions of the Act.

The Act

The power to extend the time for bringing an action outside the relevant limitation period is conferred on the court by s 31 of the Act. It is in the following terms:

"31****Ordinary actions

**(1)**This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.

**(2)**Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court—

(a)that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

(b)that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.

**(3)**This section applies to an action whether or not the period of limitation for the action has expired—

(a)before the commencement of this Act; or

(b)before an application is made under this section in respect of the right of action."

The expressions "material facts relating to a right of action", "of a decisive character" and "means of knowledge" are defined by s 30¹ of the Act as follows:

"30****Interpretation

**(1)**For the purposes of this section and sections 31, 32, 33 and 34—

(a)the material facts relating to a right of action include the following—

(i)the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;

(ii)the identity of the person against whom the right of action lies;

(iii)the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;

(iv)the nature and extent of the personal injury so caused;

(v)the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;

(b)material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing—

(i)that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and

(ii)that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action;

(c)a fact is not within the means of knowledge of a person at a particular time if, but only if—

(i)the person does not know the fact at that time; and

(ii)as far as the fact is able to be found out by the person—the person has taken all reasonable steps to find out the fact before that time.

**(2)**In this section—

"appropriate advice", in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts."

Section 31(2)(a) of the Act

The appellant does not seek to challenge the learned primary judge's findings of fact based upon his acceptance of the respondent's evidence. Rather, the appellant points to the respondent's consultations with Dr Lepage, and the advice given to her by him, and contends that, having regard to that advice, knowledge of the causal nexus between her condition and her treatment at Karrala House was "within her means of knowledge" having regard to the definition of that expression in s 30(1)(c) the Act.

The learned primary judge accepted the evidence of Ms Bretag, who was not cross-examined, that an element of the respondent's condition was that, until her consultations with Ms Bretag in 1996, the respondent felt unsafe and lacked the confidence to engage in a discussion of her problems. Dr Atchison also gave evidence and was cross-examined. Dr Atchison deposed that the respondent, by reason of her state of mind following her experiences at Karrala House, was "no different to the overwhelming bulk of victims of childhood abuse who simply live with the abuse and do not seek help". For these reasons the respondent was one of a class of persons who are "almost incapable" of seeking help. Dr Atchison concluded that "it was a fluke that [the respondent] sought help and ultimately became aware of the psychological effects her experiences at Karrala had upon her". In the course of Dr Atchison's cross-examination, she gave further evidence supporting the view that the respondent did not press on with therapy which might have led to the discovery of the relevant causal nexus between Karrala House and her condition because the avoidance of the pain of confronting that fact was an aspect of her condition.

It was in the light of this evidence, which his Honour accepted, that the learned primary judge considered the issue posed by s 30(1)(c)(ii) of the Act. His conclusions relevant to this aspect of the case were as follows:

"[24]The question then is whether she ought to have known of this fact earlier. A material fact is within a person's means of knowledge if:

'As far as the fact is able to be found out by the person – the person has taken all reasonable steps to find out the fact before that time.'

The reasonableness of the steps taken by an applicant to ascertain a material fact must be assessed on an objective basis, but with regard to the background and situation of the applicant: Castlemaine Perkins Limited v McPhee [1979] Qd R 469; Randel v Brisbane City Council [1984] 2 Qd R 276 at 285. Some of the relevant facts of the plaintiff's background and situation have already been mentioned. According to Ms Bretag, the plaintiff's low self esteem led the plaintiff to believe that she may have been in some way responsible for her treatment at Karrala House and that this 'self-blame is often a feature of children who have been abused'. The plaintiff says that 'I never blamed anyone for who I was. I just assumed and accepted that was the way I was'. The effect of the plaintiff's evidence is that she had not considered whether any person was legally responsible for any of her problems, let alone what enquiries should be made in that respect. Again, I accept the plaintiff's evidence that she did not consider those matters: the evidence is not inherently improbable and the defendant chose not to test it by cross-examination. The plaintiff's inadvertence to these matters was a consequence of her condition, and probably also of her limited education.

[25]In many cases under s 31, the reasonableness of the plaintiff's steps to ascertain material facts is assessed in a situation where the plaintiff is exploring whether there is a right of action and evidence to support it. The person is expected then to take steps to see whether there is a worthwhile right of action, and the question is whether he or she could reasonably be expected to take a certain step, which if taken, would reveal the decisive fact. The reasonableness of the step is assessed by asking whether a person who was or should have been investigating the prospects of a successful action, should have taken that step. In other cases, the person has simply not adverted to whether someone is legally responsible for his or her problems, and the person is not and need not be investigating a potential action, because a reasonable person in his or her particular situation would not necessarily do so. In that type of case, no step to ascertain a fact may be reasonably expected. A particular step may then be a reasonable one in a case of the first kind, but not in a case of the second kind.

….

[27]… had [the respondent] enquired of the causes of her problems by consulting a psychiatrist or a psychologist as she did in 1996, it seems at least likely from the reports of Dr Atchison and Ms Bretag that she would have learnt of the connection with Karrala House. But the question of whether the plaintiff has taken 'reasonable steps to find out the fact' must be answered in this case by asking whether it was reasonable to expect her to have taken any steps at all. The defendant's submission is that any reasonable person would have taken steps to identify the cause of her problems, because of Dr Lepage's advice. That advice, of course, was not in the context of exploring the existence of a right of action. It was medical advice which it appears that the plaintiff did not accept because she 'did not feel sufficiently safe or confident to engage in any identification or discussion'. Would any reasonable person, with her history, condition and personal circumstances, not have undergone further treatment to identify the cause of her depression? In my conclusion, that was not the only reasonable course to be expected of a person with her history and condition and in her then circumstances. The difficulty in accepting the defendant's submission is that it overlooks certain elements of her condition which made her afraid to discuss her problems. Her avoidance of that further treatment at that time by simply getting on with her life was not unreasonable.

.…

[29]In my conclusion, treatment to identify any cause or causes of her depression was not a step which any reasonable person, with her particular condition and circumstances, must have taken. It was not reasonable to expect her to have taken any steps to ascertain the relevant fact. I find that the material fact was not within her means of knowledge until after the critical date."

It can be seen that there are two aspects to his Honour's reasoning in relation to this issue. The first is that the issue of reasonableness of conduct must be judged by reference to the ends being pursued by the person in question at a given point in time. This approach is, as his Honour considered, supported by the decision in Royal North Shore Hospital v Henderson.² In this regard, it is noteworthy that, for the purposes of s 30(1)(c)(ii) the person there referred to is not to be assumed to have "taken appropriate advice".³ Further in this regard, s 30(1)(c)(ii) does not refer to the efforts of a "reasonable person", and thus stands in marked contrast with s 30(1)(b)⁴ of the Act which refers to the state of mind of "a reasonable person" who has taken appropriate advice. The learned primary judge took the view that when the respondent saw Dr Lepage she did not have litigation in view: she was not looking to place responsibility for her problems on someone else; rather she was concerned to obtain treatment for her condition to the extent to which she was able to cope with that treatment. This aspect of his Honour's reasoning was not specifically challenged by the appellant.

The second aspect of the learned primary judge's reasoning in support of his conclusion on the first issue is that the reasonableness of the respondent's conduct is to be assessed taking into account the circumstances of her condition and its effects on her ability to find out the material fact. It is this aspect of his Honour's reasoning which the appellant challenges directly. The appellant submits that the decision of the learned primary judge is in conflict with that of McGill DCJ in Hopkins v State of Queensland,⁵ and urges that this Court should prefer the latter decision. In my respectful opinion, while I differ with some obiter dicta of McGill DCJ (to which difference I shall return), there is no conflict between the actual decision in Hopkins and the decision at first instance in this case. Because the appellant founds its submissions on the first issue in the appeal upon the decision in Hopkins, it will be necessary to discuss that decision and the reasoning therein in some detail.

So far as the existence of a causal connection between the applicant's injury and the breach of duty owed to her, it is apparent from the reasons in Hopkins,⁶ that there was only one candidate in that case which could have been the cause of the applicant's condition. For that reason, McGill DCJ said⁷ 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". His Honour referred to the decision of White J in Woodhead v Elbourne,⁸ where the plaintiff had experienced a number of problems in the course of her life any one of which, alone or in combination with others, could have caused the symptoms from which she suffered.

In Woodhead it was not sufficient to preclude the plaintiff from meeting the requirements of s 31(2)(a) that she may have been led to think that possibly the wrongful conduct with which she charged the defendant was the cause of her symptoms. As White J said in Woodhead,⁹ it was not until a psychiatrist made 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 … ".

In Hopkins¹⁰ McGill DCJ contrasted the facts of the case before him with the facts in Woodhead. In the latter case "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"; but, as McGill DCJ concluded,¹¹ in Hopkins, once the plaintiff was aware of her symptoms, she must have known of their connection with the abuse with which she charged the defendant. His Honour then made some remarks obiter,¹² to which I shall return, to the effect that a "'reasonable person endowed with the knowledge and experience of the plaintiff [Pizer v Ansett Australia Ltd [1998] QCA 298 at [20] per Thomas JA]' is different from a reasonable person suffering the same psychiatric condition as the plaintiff"; and his Honour then concluded his discussion of this issue:¹³

"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."

Reference to the observations of McPherson JA in Carter v The Corporation of the Sisters of Mercy of the Diocese of Rockhampton & Ors¹⁴ also serves to distinguish that case and Hopkins from the present case on the basis discussed above. In Carter the appellant relied on the fact that she had suffered a psychiatric injury caused by an event in the past as the relevant material fact. She had consulted psychologists and psychiatrists on occasions prior to her consultation with the psychiatrist on whose report she sought to rely. McPherson JA 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". The plaintiff had herself given evidence that "her mental state and behavioural condition" had been caused by the physical and sexual abuse which she had suffered while young. As a result, it was necessary to conclude that she had the means of knowledge of the relevant causal nexus before obtaining the report of the psychiatrist on which she sought to rely.¹⁵

In the present case, as the learned primary judge found, the respondent's childhood had been such that her treatment at Karrala House was not the sole candidate to be a cause of the respondent's condition. Dr Lepage certainly did not identify it as a cause of her condition; and the learned primary judge accepted the respondent's evidence that she had not made the connection. The question is, however, whether the respondent acted unreasonably in failing to pursue further inquiries into the cause of her problems, bearing in mind the nature of the condition from which she suffered.

The appellant argues that the evidence adduced on behalf of the respondent does not explain "why it was reasonable for her to have not discussed the incidents at Karrala House prior to 1996 but then for it to have been reasonable for her to discuss them after 1996". With this rhetorical flourish the appellant glosses over the circumstance that s 30(1)(c)(ii) does not refer to the ability of a "reasonable person" to find out a material fact; rather it refers to the ability of "the person" who does not know the fact to find out the fact by taking reasonable steps.

It is to be emphasized that s 30(1)(c) does not contemplate a state of knowledge of material facts attainable in the abstract, either by the exercise of "all reasonable steps", or by the efforts of a reasonable person. It speaks of a state of knowledge attainable by an actual person who has taken all reasonable steps. The actual person postulated by s 30(1)(c) as the person who has taken all reasonable steps, is the particular person who has suffered particular personal injuries. Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant. It seems to me that, if that person has taken all the reasonable steps that she is able to take to find out the fact, and has not found it out, that fact is not within her means of knowledge for the purpose of s 30(1)(c) of the Act. This view is supported by the text of s 30(1)(c)(ii) which is, as I have said, in marked contrast to s 30(1)(b). The authorities do not afford conclusive support for this view;¹⁶ but they do not foreclose its acceptance, and it may be noted that in Young v The Commissioner of Fire Service¹⁷ Williams J, as his Honour then was, accepted that a psychiatric condition which prevents an applicant from appreciating the nature and significance of the injury he has suffered was relevant for the purposes of s 30(1)(c)(ii). I note that it appears that this decision was not cited to McGill DCJ in Hopkins.

At this point I express my respectful disagreement with the observation of McGill DCJ in Hopkins¹⁸ where his Honour, speaking of the applicant's avoidance of a discussion of the incidents which caused her harm, said that this problem is:

"… not one which is readily accommodated within the framework of s 31 … 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' [Pizer (supra) at [20]] is different from a reasonable person suffering the same psychiatric condition as the plaintiff."

In my respectful opinion, the observation made in the last sentence cited from his Honour's reasons is correct so far as it goes, but it fails to recognize that s 30(1)(c) is not concerned with what might be expected of a reasonable person; it is concerned with what might reasonably be expected of the applicant in the particular case. I acknowledge that the view which commended itself to McGill DCJ in Hopkins is not foreclosed by the course of authority, but I consider that the approach of the learned primary judge more closely accords with the text and structure of s 30 of the Act.

In summary, in relation to the first issue, I conclude that the learned primary judge was correct to conclude that the requirements of s 31(2)(a) were satisfied.

Section 31(2)(b) of the Act

Consideration of the issue posed by s 31(2)(b) of the Act must begin with the recognition that, for the purposes of the application and this appeal, the appellant did not, and does not, seek to contend that it did not owe a duty of care to the respondent under the general law of tort, breach of which would sound against the appellant in damages for harm suffered by the respondent as a result of that breach.¹⁹

The submission advanced by the appellant is that s 31(2)(b) is not satisfied in the present case because there was no evidence to establish, either that the Director had been negligent in his care of the respondent according to known standards during her time in the Director's care, or that the Director's negligence caused her psychological problems.

The appellant's submission in relation to causation is disposed of by the evidence of Dr Atchison which affords a sufficient basis for rejecting this contention for the purposes of s 31(2)(b) of the Act.

As to the appellant's submission in relation to negligence, it is clear that an applicant for an extension of time can meet the requirement imposed by s 31(2)(b) of the Act if the applicant 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 [her] case".²⁰

The appellant submits that confinement may occur in circumstances where psychological harm may occur, but no claim in negligence will be available to the person thus harmed. In my view, analogies to the confinement of criminals and those infected with dangerous diseases are not apt. In such cases the law authorizes and requires the confinement. A duty to take reasonable care to safeguard a prisoner from harm by reason of confinement cannot co-exist with an obligation imposed by law to effect the confinement. Here the appellant conceded that the Director was duty-bound to exercise reasonable care for the well-being of the respondent. The appellant did not seek to argue that the nature of the Director's lawful authority over the respondent was such as to exclude a claim for damages for harm suffered by her if she was unreasonably confined. Indeed, such an argument would have been inconsistent with the basis on which the case proceeded, both before the learned primary judge, and in this Court.

The appellant summarized the evidence adduced by the respondent to demonstrate the evidence of a viable case of negligence against the Director as apt to establish no more than that the respondent was confined and that she suffered damage. That summary fails to recognize that the evidence adduced on behalf of the respondent shows that she was subjected to confinement which was "extraordinary", both in Dr Atchison's opinion, and in terms of a review of the punishments recorded in the "punishment book" as having been meted out to the other inmates of Karrala House. A review of these "punishments" shows that the respondent was punished much more severely than all but one of her fellow inmates. This evidence, and his Honour's findings in relation to it, seem to me to establish a prima facie case of a breach of the duty to exercise reasonable care for the well-being of the respondent which the appellant concedes was owed to the respondent.

The learned primary judge made a number of findings in relation to the evidence which can reasonably be expected to be available at trial and which, if unopposed, will be sufficient to establish a breach of the duty of care by reference to the standards prevailing in 1968. In this regard:

the learned primary judge found that the respondent was, for a period of 88 days from 21 April 1968 to 18 July 1968 either denied contact with other girls, or was allowed contact with other girls only when performing work, during which time the girls were not permitted to speak to each other.²¹ His Honour said:

"[39]… On any view she was kept alone in a room, without any contact with other girls, for nearly six weeks, and for another seven weeks her only contact with her peers was when doing work for an hour a day, during which casual conversation was not permitted. For about three months then she was denied any recreation outside her own room and any recreational or social contact with her peers".

The learned primary judge found that Dr Atchison's evidence established that this treatment was the cause of the respondent's claustrophobia and that, according to what is now known by psychiatrists "there would be a foreseeable risk of some mental impairment from treating a child in this way". His Honour observed that there was no suggestion, either in the cross-examination of Dr Atchison or elsewhere that this appreciation of the risks of this kind of confinement causing mental impairment to a child is the result of "an advance in psychiatry since 1968". The appellant argued that this observation by the learned primary judge involved a reversal of the onus of proof; but in my view, his Honour was simply making the point that, on the material before him, he was entitled to regard it as unlikely that the risk that confinement of the kind to which the respondent was subjected could be harmful to her could not reasonably have been appreciated in 1968.

The learned primary judge found that there was at least some contemporaneous medical opinion which warned of the risk that this kind of treatment could harm the children subjected to it.

The learned primary judge referred to a memorandum dated 1 November 1968, from the Director to the Director-General of the Department of Health and Medical Services proposing changes at Karrala House. His Honour said of that memorandum:

"[41]… The nature of the recommended changes adds support to the [respondent's] case that the institution had been operated in a way which could be fairly criticised by the standards of the time. One recommended change was that Karrala House should 'change in character from a detention centre for recalcitrant girls to a youth hospital for the care and treatment of emotionally disturbed girls who have appeared before the Children's Court and for the reception of girls on remand. It will be an 'assessment, remand and treatment centre'."

For the appellant, evidence was adduced to the effect that the respondent was "one of the most difficult girls with which this Department has had to deal" and that "the records clearly indicate that protective measures had to be taken, not only for the girl herself, but also for other girls in Karrala House". Having referred to this evidence, the learned primary judge said:

"[43]… The recorded justification then for the [respondent's] treatment was that she was an unusually difficult case who had to be kept as and where she was, at least for the protection of others. Again however, this evidence does not deny the [respondent] any substantial prospect of success. The [respondent] may have been especially difficult to manage, but if there was a then foreseeable risk of harm of the relevant kind, the treatment of the [respondent] may yet have been unreasonable in the context of duties to protect the [respondent's] welfare."

In my opinion, while it may ultimately be shown that there is a good defence to the respondent's claims, there was, on the evidence before the learned primary judge, a sufficient basis for concluding that "there is evidence to establish the right of action" upon which the respondent sues.

I conclude that the learned primary judge was correct to conclude that the requirements of s 31(2)(b) were satisfied.

The residual discretion

The appellant's principal argument was that the learned trial judge's exercise of the discretion to grant an extension of time miscarried in that he failed to appreciate that a fair trial of the action, including the appellant's defence of it, cannot now be had. In this regard, the appellant relies upon the decision of the High Court in Brisbane South Regional Health Authority v Taylor.²²

The Brisbane South decision is concerned to ensure that an extension of time under the Act should not become the occasion for a trial which is unfair to the defendant. It is authority for the following propositions:

the onus is upon the applicant who has satisfied the conditions in s 31(2) of the Act to show good reason for the exercise in his or her favour of the discretion vested in the court by that provision;²³

the principal consideration which guides the exercise of that discretion is the concern whether a claim, which is prima facie out of time, may yet be fairly litigated;²⁴

if a fair trial is unlikely, the discretion conferred by s 31(2) should not be exercised in the applicant's favour.²⁵

In the present case, the learned primary judge concluded that the prospect of a fair trial of the matters in issue between the parties was essentially unimpaired by the lapse of time. In particular in this regard, his Honour found that:

there was unlikely to be any controversy between the parties as to the nature and circumstances of the regime in place at Karrala House during the respondent's time there;

there was a fully documented record of the disciplinary procedures to which the respondent was subjected, and of the reasons for the disciplinary measures which were adopted in relation to the respondent.

Further, the learned primary judge noted there is no suggestion in the respondent's case that those responsible for the respondent's treatment at Karrala House were not acting in good faith in the performance of their duties, or that the respondent did not misconduct herself in the ways recorded in the "punishment book" kept by the Director's officers. Nor do the pleadings suggest that evidence of particular dealings between the respondent and the appellant's officers will be relevant to any issue in the trial.

His Honour was alive to the concern that there might be prejudice to the appellant by reason of the difficulty of assessing the appellant's treatment of the respondent without contemporary standards and sympathies affecting that assessment. As to the task of assessing whether the management of the respondent accorded with "the then prevailing standards" of care, the learned primary judge concluded:

"[49]… If it is the case that [a risk of mental impairment from such treatment] is now foreseeable, but that this has come from a break through in psychiatry since the events in question, there ought to be ample evidence available on that matter and the unavailability of these persons would not affect the outcome. In my view then the absence of these persons as witnesses would occasion no significant prejudice to a fair trial.

[50]Importantly, it is not submitted that there would be a difficulty in obtaining evidence as to the development of psychiatry as at 1968 and in particular as to what was then within the knowledge of psychiatrists as to the potential risks of this treatment."

In my view, the appellant has not demonstrated that these conclusions were not open to his Honour.

The appellant submits that it is disadvantaged by the lapse of time because it is no longer in a position to call as witnesses at the trial those who were the decision makers in relation to the respondent's treatment at Karrala House. Those decision makers were required to weigh the risk of psychological harm to the respondent against the need to protect other inmates and staff and the public, and the need to establish discipline. This balancing exercise had to be made having regard to the alternative courses of conduct available to the Director having regard to the resources that were available to his officers at the time.

These submissions are substantial. They warrant close consideration. In the end, however, I do not consider that it has been demonstrated that the learned primary judge erred in concluding that there was a likely prospect of a fair trial of the issues notwithstanding the lapse of time. In this regard:

the balancing exercise, on which the issue of the reasonableness of the appellant's treatment of the respondent depends, involves an objective assessment: it is not concerned with the subjective views of the individual decision makers. Their good faith and honesty is not in issue, and the test of reasonableness for the purposes of the tort of negligence is objective;

whether the confinement of the respondent to the extent demonstrated by the appellant's punishment book was a reasonable response to her recorded misconduct is an issue which can be decided without hearing from the decision makers. Indeed the decision makers could not swear to the issue of reasonableness;

it is difficult to accept that the appellant will not be able to call evidence of psychiatrists bearing upon the reasonableness of the decisions that were made in relation to the treatment of the respondent in 1968 in the light of what was then known of the effects of such confinement upon girls and young women. While it may truly be said of much of human experience that "what has been forgotten can rarely be shown",²⁶ that observation has little force in relation to the growing body of scientific knowledge where the record of what was known in earlier times means that it cannot be forgotten;

finally, the records concerning the respondent's problems kept by the officers of the Director do not suggest that the decisions relating to the confinement of the respondent were prompted or constrained by a scarcity of material resources.

There are two further points which may be made here by reference to the decision in Brisbane South. The first is that it was important in that case, as is apparent from the joint reasons of Toohey and Gummow JJ,²⁷ that the principal issue in the case turned upon the terms of a conversation between the plaintiff and a medical practitioner employed by the defendant in relation to the risks of a proposed medical procedure. Their Honours drew attention to the contrast between such a case, where the lapse of time made a fair trial a virtual impossibility, and a case such as Kosky v Trustees of Sisters of Charity,²⁸ where the evidence bearing upon the major issues in the case was largely documentary so that there was no prejudice by reason of the lapse of time to the possibility of a fair trial on the merits.

The second point to be made here in relation to Brisbane South relates to the burden assumed by an appellant who challenges the exercise of the judicial discretion under s 31(2) of the Act.

In Brisbane South, the High Court set aside the decision of the Court of Appeal, and restored the decision of the learned primary judge. Toohey and Gummow JJ acknowledged that a different conclusion had been open to the learned primary judge on the evidence before him.²⁹ In short, in relation to the "real question [which] is whether the delay has made the chance of a fair trial unlikely", the primary judge is required to exercise a discretion; and this Court will not interfere with the exercise of the discretion unless error is demonstrated.³⁰

In my view no error has been demonstrated. Having regard to the learned primary judge's findings upon the evidence, and his Honour's orthodox application of the considerations relevant to the exercise of his discretion, no basis is shown for setting aside his Honour's exercise of the discretion conferred by s 32(2) of the Act.

Conclusion

For these reasons, I would order that the appeal be dismissed; and that the appellant pay the respondent's costs of the appeal to be assessed.

HOLMES J: I agree with the reasons of Williams and Keane JJA and the orders they propose.

Footnotes

1. Formerly numbered s 30(a), (b), (c) and (d). ↩

2. (1986) 7 NSWLR 283 esp at 298 - 299. ↩

3. Healy v Femdale Pty Ltd [1993] QCA 210; CA No 37 of 1992, 9 June 1993. ↩

4. It is to be noted that recent criticism of reasoning in Henderson in relation to the NSW analogue of s 30(1)(b) is not pertinent to the present discussion. Cf Stephenson v State of Queensland [2004] QCA 483; Appeal No 7621 of 2004, 17 December 2004 at [14] - [25] per Davies JA, [37] - [67] per Williams JA, [90] - [123] per Chesterman J. See also Reeman v State of Queensland [2004] QCA 484; Appeal No 8239 of 2004, 17 December 2004, Bougoure v State of Queensland [2004] QCA 485; Appeal No 6094 of 2004, 17 December 2004. ↩

5. [2004] QDC 021; DC No 2258 of 2003, 24 February 2004. ↩

6. [2004] QDC 021 2004 esp at [31] - [35]; DC No 2258 of 2003, 24 February. ↩

7. [2004] QDC 021 at [33]; DC No 2258 of 2003, 24 February 2004. ↩

8. [2001] QSC 042; [2001] 1 Qd R 220. ↩

9. [2001] QSC 042 at [24]; 2001] 1 Qd R 220 at 227. ↩

10. [2004] QDC 021; DC No 2258 of 2003, 24 February 2004 at [34]. ↩

11. [2004] QDC 021; DC No 2258 of 2003, 24 February 2004 at [35].