State of New South Wales v Julianne Higgins by her tutor David Benedict O'Shea; Barnardos Australia v Julianne Higgins

DECISION: 1. Leave to appeal granted.; 2. Notices of appeal to be filed and served within 10 days.; 3. Appeals dismissed with costs.

CATCHWORDS: LIMITATION OF ACTIONS - disability - mental illness - automatic extension of limitation period - plaintiff entitled to three year extension from date of last period of disability - D

Cloverdell Lumber Co Pty Ltd v Abbott (1924) 34 CLR 122 CASES CITED: Shortland Electricity v O'Connor [1999] NSWCA 87

CA 40708 of 2004 State of New South Wales (Claimant) Julianne Higgins by her tutor David Benedict O'Shea (Opponent)

PARTIES: CA 40710 of 2004 Barnardos Australia (Claimant) Julianne Higgins (Opponent)

FILE NUMBER(S): CA 40708 of 2004; CA 40710 of 2004

CA 40708 of 2004 P Menzies QC/C F Hodgson (Claimant) R Toner SC/T Hickie (Opponent) COUNSEL: CA 40710 of 2004 J Marshall SC/R Gambi (Claimant) R Toner SC/T Hickie (Opponent)

CA 40708 of 2004 I V Knight, Crown Solicitor (Claimant) Hilton King (Opponent) SOLICITORS: CA 40710 of 2004 Phillips Fox (Claimant) Hilton King (Opponent)

DC 2299 of 2003 LOWER COURT FILE NUMBER(S): DC 3891 of 2004

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40708 of 2004 DC 2299 of 2003

CA 40710 of 2004 DC 3891 of 2004

HANDLEY JA M W CAMPBELL AJA ADAMS J

7 JULY 2005 STATE OF NEW SOUTH WALES v JULIANNE HIGGINS by her tutor DAVID BENEDICT O'SHEA

BARNARDOS AUSTRALIA v JULIANNE HIGGINS CATCHWORDS

LIMITATION OF ACTIONS - disability - mental illness - automatic extension of limitation period - plaintiff entitled to three year extension from date of last period of disability FACTS

The opponent sued the State of New South Wales and Barnardos Australia, alleging that she had been sexually abused while residing at Hohnen House, a house run by Barnardos during 1993. The statement of claim was filed on 24 April 2004. The Limitation Act 1969 (the Act) suspended the running of the three year limitation period until the opponent turned 18 on 22 September 1995. The claimants alleged that the limitation period expired on 22 September 1998. The opponent claimed that she was under a disability due to mental illness which continued to suspend the limitation period until the statement of claim was filed. This argument was accepted by O'Toole DCJ who held that the action was within time. The claimants sought leave to appeal. HELD: (1) There was no reason to doubt the findings that the opponent was under a disability after she attained 18; (2) The expert witnesses were entitled to draw inferences regarding the earlier medical history of the opponent based on their clinical examinations and the history they obtained from her and from documentary material; (3) Section 52(1)(e) of the Act operated to extend the limitation period for a full three years from the date on which a plaintiff last ceased to be under a disability. ORDERS

2. Notices of appeal to be filed and served within 10 days.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40708 of 2004 DC 2299 of 2003

CA 40710 of 2004 DC 3891 of 2004

HANDLEY JA M W CAMPBELL AJA ADAMS J

7 JULY 2005 STATE OF NEW SOUTH WALES v JULIANNE HIGGINS by her tutor DAVID BENEDICT O'SHEA

BARNARDOS AUSTRALIA v JULIANNE HIGGINS Judgment 1 HANDLEY JA: Before the Court are two summonses for leave to appeal from what has been treated as an interlocutory judgment or order of O'Toole DCJ of 3 August 2004. Her Honour had before her a notice of motion of 3 August 2002, filed on behalf of Julianne Higgins, which in substance sought declarations that the running of the limitation period for the causes of action pleaded in her statement of claim had been suspended until June 2002 by reason of her disability due to mental illness. 2 The plaintiff's original statement of claim was filed on 24 April 2002 joining as defendants the State of New South Wales, Barnardos Australia and one of its employees or former employees. The statement of claim alleged that between January and September 1993 while the plaintiff was an inmate at Hohnen House, a home run by Barnardos Australia for children who could not reside with their parents, the plaintiff was sexually abused by the third defendant, a female employee of that organisation, and that her complaint or complaints to Barnardos Homes and to the Department of Community Services or its predecessor were ignored. 3 The plaintiff turned 18 on 22 September 1995 and prima facie the three year limitation period fixed by s 18A(2) of the Limitation Act 1969 expired on 22 September 1998. Her statement of claim was filed well outside this period. The notice of motion sought to overcome this difficulty by obtaining either the declaration referred to or an extension of the limitation period under s 60C of the Limitation Act. The parties elected to proceed on the disability issue and the claim for an extension of the limitation period has been deferred. 4 The proceedings in the District Court were attended by an excessive degree of informality. Notices of grounds of defence have not been filed by any of the defendants. The notice of motion sought declarations which the District Court has no power to grant. The parties could have resorted, but did not, to the procedure under DCR Pt 26 r 5AA which provides for the determination of a separate question, a facility that is available even before the pleadings have closed. While this was not done formally, in substance this is what happened. 5 The primary judge having ruled in favour of the plaintiff on the limitation issue did not make any orders, other than for costs, and again declined to do so when asked some months later by counsel for the defendants. Her reasons for refusing to make other orders included the fact that counsel for the plaintiff said this was not necessary. When these matters were drawn to our attention, the Court declined to proceed until counsel for the parties had signed short minutes of orders that the District Court would be asked to enter. When that had been done, the Court heard the leave applications on their merits. The Court had previously intimated that, if leave were granted, the summonses would be heard on a final basis and the parties have come to Court prepared to fully argue the cases. 6 Section 11(3) relevantly provided that a person is under a disability: "(b) while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of: (i) any disease or any impairment of his or her physical or mental condition, (ii) restraint of his or her person, lawful or unlawful, including detention or custody under the Mental Health Act 1958." 7 Section 52 is the operative provision and sub-s (1) relevantly provides: "(1) … where: (a) a person has a cause of action, (b) the limitation period fixed by this Act for the cause of action has commenced to run, and (c) the person is under a disability, in that case: (d) the running of the limitation period is suspended for the duration of the disability, and (e) if, but for this paragraph, the limitation period would expire before the lapse of three years after: (i) the date on which the person last (before the expiration of the limitation period) ceases to be under a disability, or (ii) the date of the person's death, (whichever date is the earlier), the limitation period is extended so as to expire three years after the earlier of those dates." 8 The primary judge found that the plaintiff, a single mother who had custody of her son Jayden, was visited at her home by two officers of the Department of Community Services in June 1998, not long before her 21st birthday on 22 September. She said during her cross-examination that the officers told her that her neglect of her son was "a serious abuse". The plaintiff said that she was shocked, alarmed and agitated. There was no other evidence to support that date and Jayden was not removed from her custody by Court order until September 1999. Although there was no other evidence to support the June date her evidence to that effect was not challenged in cross-examination and the Department file was not obtained. 9 Dr Pakula, a psychiatrist, who gave evidence in report form and orally before the primary judge, said that the plaintiff could manage her own affairs if she could look after her son satisfactorily, and the converse is probably also true. If so, this evidence, which the judge accepted, would establish that the plaintiff was under a disability during the limitation period. However, this is an unsatisfactory basis on which to refuse leave to appeal or to dismiss the appeal, as further investigation, particularly of the Departmental file, may demonstrate that the June date was incorrect. It is therefore appropriate to consider the alternative basis on which the judge found that the limitation period had been extended by the plaintiff's disability. 10 The judge said in para 51 of her judgment: "I conclude that prior to the plaintiff's eighteenth birthday, and at all material times thereafter, she suffered from a schizophrenic and/or paranoid illness which impaired her capacity for mundane activities." 11 This finding was based substantially on earlier findings referring to the evidence of Dr Pakula, Dr Davies, Dr Dragutinovich, a psychologist, Dr Phillips and Dr Kaplan. Her Honour concluded that the plaintiff's causes of action were not time barred when the proceedings were commenced and that "at all material times the plaintiff's mental illness constituted a disability as defined in section 11(3)". 12 Mr Menzies QC, appearing for the State, has submitted that the judge's finding based on the medical evidence is not properly supported by that evidence because it did not establish that the plaintiff was "incapable of or substantially impeded in the management of her affairs … by reason of any disease or any impairment of her physical or mental condition'. 13 In order to deal with these submissions it is necessary to refer in some detail to some of the medical evidence and some of the objective facts. Dr Pakula first saw the plaintiff on or about 14 March 2001 and his report of that date is in evidence. The plaintiff became his patient on or about 5 June 2002 and has remained his patient. His second report dated 26 March 2003 dealt with the matter more fully. Both reports were in evidence before the judge. Dr Pakula also gave extensive oral evidence in chief and in cross-examination. His opinion in his report of 21 March 2001 was that the plaintiff was suffering from a psychotic condition which was then under control as a result of medication she was taking under Court orders. In his second report he concluded (para 331): "Given the information that I have received and also taking into account the early departure from school made by Julianne and her disorganised and disruptive life style, it is very likely that she was suffering from a major psychiatric illness, that is of a schizo-effective disorder well before her eighteenth birthday, and that in fact prior to her eighteenth birthday she was suffering from a mental condition. By this I mean all aspects of her mind and all aspects of her life were affected by this mental illness and would cause her to have difficulty making a rational judgment or to exercise willpower to control her psychical acts in accordance with a rational judgment. Clearly then she was in such a state of mind that she did not have the legal capacity to properly consider the issues or to give instructions to commence legal proceedings within the prescribed three year period on the day that she turned eighteen years of age." 14 Dr Pakula's oral evidence broadly supports that opinion. He made a number of general concessions, but in answer to questions from the judge after the close of the cross-examination he said (white book p 195): "My view is that several years prior to 1999 that Julianne was developing this illness. It is my view, I would not necessarily be one hundred per cent correct, I think it would be the view of most psychiatrists. It does not mean that I would be right, it is just how we view these illnesses." 15 Then the following questions and answers were given (white book pp 195-196): "Q. When I say hindsight I don't mean to be discourteous, but having attached a diagnostic label now that on your professional experience you are comfortable with doing, you hypothesised that those things that went amiss in her life? A. Were part of that illness.

Q. She couldn't cope in other words? A. Yes, she couldn't cope, but that was part of the illness not just part of her personality in being unable to cope, because under treatment she is able to cope. I guess the first time I saw her in 2001 I didn't have all of the information and she looked perfectly well on treatment, but then she had several episodes of suicidality very clear psychosis requiring involuntary admission to psychiatric hospitals and a further community treatment order and the diagnosis was a lot clearer at that time. In psychiatry we can't always make the diagnosis straight away, it takes a period of time, for example, a good example is bipolar disorder or manic depressive illness. A person may have two or three episodes of major depression where they are very depressed and suicidal, but ten years later they may present with a manic illness, now we would be treating that person with what we call uni-polar depression until they have the manic episode we then change the diagnosis to a manic depressive illness. The illness then becomes clearer in retrospect what some of the issues were and the main indication for us is the treatment is different." 16 The objective history of the plaintiff so far as her contact with psychiatric treatment is concerned is helpfully set out in a chronology prepared by counsel for Barnardos Australia. On 3 September 1999 she lost custody of her son under an order of the Children's Court at Wollongong. In January 2000 that Court made a wardship order. On 18 January 2000 she was seen by Dr Kaplan, who diagnosed her as suffering from a serious psychiatric disorder, most likely a schizophrenoform or schizoaffective disorder. He expressed the view that at that stage she was in no state to care for a child. She was compulsorily hospitalised from 5 February to 7 April 2000 and subsequently from 5 June to 4 July 2002, and from 8 to 16 August 2002. 17 Apart from the evidence of Dr Pakula and the report of Dr Kaplan of 18 January 2000, the plaintiff produced other evidence in report form from Dr Davies of 21 May 2002 and from the psychologist, Dr Dragutinovich, of 22 August 2002. Dr Phillips, who was qualified for Barnardos Australia, also gave reports which significantly support the view taken by Dr Pakula, and I quote from Dr Phillips' report of 19 March 2002 (white book p 344): "More likely than not, the client had a genetic predisposition to the onset of a psychotic disorder. Her vulnerability to psychotic disorder increased in keeping with early adverse life events. She went on to develop her initial psychotic symptoms when approximately 17 years old, this being the typical age for the onset of psychotic symptoms in a young person.

Accepting that Ms Higgins has a history highly suggestive of a psychotic disturbance, the client's illness is entirely typical. In keeping with this her illness would have occurred whether or not she had been abused at the Barnados home.

It is difficult at the present rime to be certain about Ms Higgins diagnosis. She has developed a schizophrenia DSM IV TR 295.90 (undifferentiated type) or a schizoaffective disorder, spanning the domains of schizophrenia and mood disorder. I favour the former on the evidence which is available. I anticipate that there will be further deteriorations in the client's presentation and in her ability to cope as the disorder continues. She may suffer florid psychotic symptoms from time to time. I do not believe that the client will ever become a member of the workforce.

More likely than not, Ms Higgins was going to develop a psychiatric disturbance during her adolescence/early adult years whether or not she suffered sexual abuse at Hohnen House, as is alleged. 18 In those circumstances there is no reason to doubt the substantial correctness of the judge's conclusion previously quoted in para 51 of her judgment. 19 The plaintiff had lucid intervals when she was able more or less to cope with the various pressures on her, and take the steps that she took to regain custody of her son, obtain victims' compensation, and take other action. Nevertheless, given the psychiatric evidence, there is no reason to doubt the correctness of the conclusion that she was substantially impeded for continuous periods of 28 days or upwards during the three years between her 18th birthday when the limitation period began to run, and her 21st birthday, when it normally would have expired. Section 52(1)(e) of the Limitation Act provides that persons such as this plaintiff are to have an unbroken period of three years from the date on which they last ceased to be under a disability and the limitation period is extended accordingly. That is the natural reading of the section and this is supported by paras 245 and 246 of the report of the New South Wales Law Reform Commission which led to the passing of the Act. It is also supported by the remarks of Sheller JA in Shortland Electricity v O'Connor [1999] NSWCA 87. On this basis she was well within time. 20 Both Mr Menzies for the State and Mr Marshall for Barnardos Australia challenged the inference that Dr Phillips and Dr Pakula drew from their observations of the plaintiff on examination and from the history oral and documentary they obtained, that her condition was manifest during the limitation period. There is no reason to think that the approach adopted by Dr Pakula and Dr Phillips would be regarded as inappropriate by other psychiatrists. Had this been the case, one would have expected there to have been evidence called to that effect. The State did have the benefit of a medical examination of the plaintiff by a psychiatrist but did not tender his report. 21 The approach adopted by these two psychiatrists is also perfectly permissible on legal grounds. In Cloverdell Lumber Co Pty Ltd v Abbott (1924) 34 CLR 122, 137-8 Isaacs J said (citations omitted): "There is also a presumption of evidence that comes in aid of the defendants. The present existence of facts does in some cases operate retrospectively as evidence of former condition. It is not necessary to do more than cite three authorative examples. One is Bristow v Cormican where Lord Blackburn said 'The acts of ownership done in Lord O'Neill's time from 1837 to 1872 along his demesne would justify the jury in drawing an inference that similar acts had been done during the long interval from 1661 to 1837'. The next is Sanders v Sanders where the Court of Appeal held that payment of rents from 1864 to 1877 was, in the absence of evidence to the contrary, sufficient to support the inference of prior payments from 1833 to 1864. The third is even more direct, Doe v Fuchau , where the insufficiency of a distress on a certain date was prima facie evidence of an insufficient distress on an earlier date." 22 This principle remains relevant under the Evidence Act 1995. In other circumstances, the failure of the plaintiff to call Mr Littrich, the solicitor she consulted in July 1999, might have justified adverse inferences against her. However having regard to the progressive nature of the illness referred to by all doctors, the substantial agreement between Dr Pakula and Dr Phillips, and the objective matters already mentioned, the absence of Mr Littrich from the witness box and the failure to obtain an affidavit from him do not warrant the reversal of the decision of the primary judge. 23 I would therefore propose that the following orders be made:

2. Notices of appeal to be filed and served within 10 days.

3. Appeals dismissed with costs. 24 CAMPBELL AJA: I agree. 25 ADAMS J: I also agree. **********

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