Carter v Co of the Sisters of Mercy of Diocese Rockhampton & Ors [2001] QCA 335

SUPREME COURT OF QUEENSLAND CITATION: Carter v Corporation of the Sisters of Mercy of the Diocese of Rockhampton & Ors [2001] QCA 335 PARTIES: HELEN MAY CARTER (plaintiff/appellant) v THE CORPORATION OF THE SISTERS OF MERCY OF THE DIOCESE OF ROCKHAMPTON (first defendant/first respondent) THE ROMAN CATHOLIC TRUST CORPORATION FOR THE DIOCESE OF ROCKHAMPTON (second defendant/second respondent) STATE OF QUEENSLAND (third defendant/third respondent) KEVIN LESLIE BAKER (fourth defendant/fourth respondent) FILE NO/S: Appeal No 8777 of 2000 DC No S53 of 1998 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: District Court at Toowoomba DELIVERED ON: 24 August 2001 DELIVERED AT: Brisbane HEARING DATE: 15 June 2001 JUDGES: McPherson JA, Muir J, Atkinson J Separate reasons for judgment of each member of the Court; McPherson JA and Muir J concurring as to the order made, Atkinson J dissenting. ORDER: Appeal dismissed with costs 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 DECISIVE CHARACTER – whether a psychiatric report constitutes a material fact of a decisive character under s 31(2)(a) Limitation of Actions Act 1974 (Qld) LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – GENERAL MATTERS – whether the third defendant would suffer prejudice due to the lapse of time of some 25 to 30 years -- 1 of 29 -- 2 Limitation of Actions Act 1974 (Qld), s 29(2)(c), s 30, 31 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, considered Henry v Thompson [1989] 2 Qd R 412, considered M (H) v M (K) [1992] 3 SCR 6; (1992) 96 DLR (4th) 289, considered Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325, considered Stubbings v Webb [1992] 1 QB 197 Tiernan v Tiernan Supreme Court of Queensland, No 39 of 1992, 22 April 1993, considered COUNSEL: P Howard for the appellant R G Hancock (sol.) for the first and second respondents R V Hanson QC with P J Flanagan for the third respondent J G Crowley QC with S Pointing for the fourth respondent SOLICITORS: Dean, Kath & Kohler for the appellant Deacons for the first respondent Swanwick Murray Roche for the second respondent Crown Law for the third respondent John Murphy & Co for the fourth respondent [1] McPHERSON JA: The plaintiff, who is the appellant in this Court, had a very harsh upbringing. She was born on 23 March 1960, of a mother who was addicted to alcohol and a father who abandoned them and returned to his country of origin when she was only a baby. At the age of 2 months she, together with her older sisters and brother, were taken into the care and protection of the State, which is the third defendant in this action. Under the State Childrens Act of 1911 and subsequent legislation, the State or the principal officer of the relevant Department became her guardian. In 1961 she was placed at Neerkol Orphanage, which was a private institution licensed to care for children and conducted by nuns belonging to an order of sisters, which is now the first defendant. [2] Apart from some time spent at St Vincent’s Home, the plaintiff remained at Neerkol substantially until she was transferred to Warilda in 1972. When she was 15 she went to a hostel for girls, which she left to live as a “street kid”. She formed a relationship with a lad named Jamie, by whom she became pregnant before he was killed in a motor vehicle accident in 1972. It was then that she first began to drink to excess. When she was 16, she was placed at Wolston Park Hospital, where she remained for six months. At age 19 she married, and had five children one of whom died from a chest infection when he was only three months old. Her marriage came to an end when she was 35. [3] The writ of summons issued on 27 July 1998 and the amended statement of claim is dated 28 July 2000. Against the first defendant, she alleged that the nuns at Neerkol subjected her to harsh treatment which included a variety of individual acts of cruelty, of which there is graphic detail in the material before the court. What was in some ways even more serious was that, as a little girl, she suffered from a stammer and was dyslexic in her speech, and was led to think that she was either mad or incorrigibly -- 2 of 29 -- 3 bad. No measures were taken to help correct her speech problems and, as a result her education suffered greatly. She attended a special school, but only for a period of a couple of years or so, and was treated, contrary to what is now recognised to be the true state of affairs, as if she were a person of below average intelligence. As a result her writing is not good, and she has some problems with reading and arithmetic. She experienced serious difficulties in gaining employment. In addition to these burdens, the plaintiff alleges that from about the age of 5 or 6, the fourth defendant sexually assaulted her, and, from the time when she was aged 7, he began to rape her with a frequency that over time increased to be an almost daily occurrence. The fourth defendant was an employee of the first defendant who lived in quarters at the site. He drove the school bus and helped to supervise the children at the Orphanage. He is being prosecuted for rape and other offences arising out of her allegation of the commission of these acts against her. [4] The plaintiff’s claim against the fourth defendant is for damages, including exemplary damages, for what, in the language of the law, is trespass to the person. Against the State as third defendant, her claim is for damages for negligence or equitable compensation for breach of fiduciary duty. Its foundation is essentially that the State, through the relevant departmental officers of State, is responsible in law for the acts alleged to have been committed by the first and the fourth defendants. It allowed, or it failed to prevent, those acts from taking place, and it failed generally in its duty of properly supervising the conduct of the Orphanage. In that regard the plaintiff relies particularly on an incident that took place on 11 August 1968, when she was a passenger in a vehicle bringing her back from St Vincent’s Home to the Orphanage to which she did not wish to return. She complained to a Departmental supervisor, who with another Departmental officer was with her in the car, of the treatment, including the rapes, that she was suffering at the Orphanage. According to her account of it, he struck her in the face and reprimanded her for saying such things. On arrival at Neerkol her complaints were reported to the nuns, and she was beaten for making them. As a result of these and other matters, the plaintiff claims she suffered personal injury “including mental and/or psychiatric injury, and has been left with permanent disabilities” for which she claims damages. [5] There is ample evidence to confirm some of her complaints of ill-treatment. It is right to say that her behaviour as a child made her difficult to manage, and the Orphanage was, in terms of the numbers of children being cared for, evidently grossly understaffed, which must have placed a great strain on the nuns themselves of whom there were only a few. They have since written her a letter of apology and regret for their actions and omissions, and they and the first defendant have arrived at a settlement of the plaintiff’s claims against them. They remain in the action only because the State as third defendant has issued contribution proceedings against them, which will be determined at the trial. The plaintiff’s action is now proceeding, if it can, against the third and fourth defendant alone. [6] There is no statutory period of limitation for breach of fiduciary duty. The problem is, however, that the limitation period for claims in negligence and trespass is three years. It did not begin to run against the plaintiff until she attained her majority in 1978, which means that the period expired on her 21st birthday on 23 March 1981. Her action was commenced long after that time. But s 31(2) of the Limitation of Actions Act 1974 authorises the court in certain circumstances to extend the limitation period. -- 3 of 29 -- 4 Her application for such an extension came before a Judge of the Supreme Court, but was dismissed on 8 September 2000. She now appeals against the order dismissing it. [7] Section 31(2) of the Act enables the court to extend the limitation period so that it expires a year after “that date”. The date in question is identified in s 31(2)(a), which speaks of “a date after the commencement of the year last preceding the expiration of the period of limitation for the action”. Paragraph (a) of s 31(2) is not a model of drafting lucidity, but what is meant is a date after the beginning of the final year of the limitation period, which in this case would have begun on 23 March 1980. The significance of “that date” is that an extension of the limitation period is not permitted unless “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 that final year began in 1980. The burden of proving that element rests upon the applicant for the extension, who in this case is the plaintiff in the action. [8] The “material fact” of that character, which the plaintiff says was not within her means of knowledge, was identified by Mr Howard of counsel for the plaintiff on appeal as being that the appellant now suffers from a psychiatric injury, namely depression, and that it was caused at least in part by the abuse she suffered at the Neerkol Orphanage. The plaintiff claims she did not know this material fact until she received and read a letter dated 29 September 1998, from Dr Eileen Birkett, who is a consultant psychiatrist. That, then, is the date before which the material fact that she has identified must be shown not to have been within her means of knowledge. [9] Dr Birkett’s report begins by saying that her primary diagnosis was “alcohol abuse with chronic dysphemia”, meaning depression. Specifically in response to a question designated “C” that was put to her, she says she considered that the plaintiff’s “family history of being at risk of alcoholic abuse, her abusive experiences as a child both sexual physical and verbal abuse, would undermine her self-confidence”, as well as “her ability to trust others, and … would have a major impact on her reaction to the world”. In her report Dr Birkett then goes on to say: “I believe that her experiences of abuse as a child have made a significant impact on her life. Her inability to learn which may have been due to either dyslexia or her stutter also made an impact on her ability to function. It appears of recent years she has had reasonable stable work it the hotel industry”. In an affidavit sworn by Dr Birkett and filed in support of the application, she elucidated what she was saying in her report by adding: “2. As indicated in my report, the plaintiff at the time of my examination of her suffered principally from chronic depression and alcohol abuse. I consider that a contributing factor to her depression was the sexual physical and mental abuse complained of whilst at Neerkol Orphanage. 3. At the time of my examination of her I considered that the plaintiff’s depression caused unhappiness, the plaintiff drank alcohol to ease this unhappiness, with her family history of alcohol abuse the plaintiff was genetically more likely to develop an abusive pattern of drinking, the alcohol abuse caused further depression and consequently more unhappiness.” -- 4 of 29 -- 5 [10] The plaintiff in her own affidavit in support of the application said that it was not until she read the report from Dr Birkett that she appreciated that the abuse she suffered at Neerkol Orphanage may have affected her from a psychiatric point of view and contributed to the difficulties she had experienced since leaving the Orphanage. Before consulting Dr Birkett, she says: “I [had] received psychiatric treatment but there was never any mention or indication of a connection between the abuse I suffered and my current condition.” [11] The “material fact” identified by the plaintiff in this case has two aspects. One is that she is suffering from a psychiatric illness or impairment; the other is that it was caused by or linked to the abusive treatment she underwent at Neerkol. If before 29 September 1998, she knew or had the means of knowledge of either of those two elements, then her application was rightly dismissed. There are problems of proof in respect of both. In considering them, it must be borne in mind that, under s 30(1)(c), a fact is not within the means of knowledge of a person at a particular time only if (i) she does not know that fact, and (ii) has taken all reasonable steps to find it out. [12] It is evident that, before the critical date of 29 September 1998, the plaintiff was aware that she suffered from a depressed condition. When she consulted Dr Birkett on 31 August 1998, she reported that “at times she feels depressed and believes that her [consumption of] alcohol is to ease the depression”. As Dr Birkett reported, the plaintiff’s “primary symptoms of alcohol abuse and dysthymia predominate”. As already mentioned, in 1972 she had spent six months as a patient at Wolston Park Hospital. In a letter written on 10 March 1994, Ms S. W. Stephenson, a clinical psychiatrist, wrote to the plaintiff’s then solicitor forwarding a “pre-diagnostic opinion”. Ms Stephenson said that she had seen the plaintiff first on 22 January 1994 and on six later occasions. She was then suffering grief and anxiety as a result of the death of her baby son; but the letter also mentions that the plaintiff had spent her childhood in institutions and in foster care, and “as a consequence, she has developed feelings of inferiority”. Despite requests from the third defendant, Ms Stephenson’s pre-diagnostic opinion, if it exists as a separate document, has not been produced. The plaintiff in her own affidavit also mentions that she had received psychiatric treatment before seeing Dr Birkett; but gives no indication of the dates or reasons for that treatment, or who it was who provided it, or what form it took. [13] In her reasons for dismissing the application, her Honour referred to Ms Stephenson’s report and the fact that the plaintiff had previously received treatment from psychiatrists. The learned judge said that, in applications under s 31 of the Act, it was “necessary, to the extent possible, to place all relevant material before the court”; and that the applicant had in that respect failed to satisfy the requirements of the statutory provisions entitling her to an extension of time for commencing the action. On appeal, that finding was challenged; but, the onus of proof being on the plaintiff, the learned judge was entitled to conclude that, in the absence of details of the plaintiff’s previous psychiatric consultations and treatment, she was not satisfied that she should, as a matter of discretion, grant the extension of time sought by the plaintiff. Unless her Honour’s discretion is shown to have been wrongly exercised, we have no power to disturb it. [14] Her Honour’s conclusion to that effect was in fact directly related to the plaintiff’s statement in her affidavit that, before she saw Dr Birkett, there was never any mention -- 5 of 29 -- 6 or indication of a connection between the abuse she had suffered and her current condition. It will, of course, be necessary at the trial, if it takes place, to establish a causal connection between the plaintiff’s psychiatric condition of chronic depression, her treatment and experiences in the Orphanage. The question at issue on this application and appeal is, however, whether she was, as she claims, in fact ignorant of the connection between the two elements, and, if so, whether she ought to have taken reasonable steps to discover the cause or source of her condition. [15] She was, of course, at all times before the critical date in September 1998 aware that she had been raped by the fourth defendant and also that she had been subjected to harsh treatment and uncaring attitudes by the nuns. The plaintiff in her affidavit admits that, because of the physical and sexual abuse that she suffered, she became a very aggressive person. She says that, in consequence, “I would assault other kids. I became an angry person”. It is a fair inference from this that, even at that early stage of her life, she was herself able to make a connection between her treatment at Neerkol and her mental state or behavioural condition. When she went to bed at night she used to bang her head on the mattress until she fell asleep. This is said to be consistent with the behaviour of children deprived of affection. Some of the other girls used to come over to her bed and try to comfort her. If later in her life she did not appreciate there was a connection between her childhood treatment and the alcoholism and her chronic depression, it was, in terms of s 31(1)(c) of the Act, nevertheless a fact which she could have found out by taking the reasonable step of asking any psychiatrist whom she consulted. She was aware of her need to consult psychiatrists and psychologists because she had done so evidently more than once before she saw Dr Birkett in August 1998. [16] It is true that she says that, before then, there was never any mention of a connection between the abuse suffered and her current condition; but it would have been a reasonable step for her on the occasion of those consultations for her to ask what caused her recurring states of depression. In any event, what her affidavit says is that it was only on reading Dr Birkett’s report of 29 September 1998 that she appreciated that there was expert evidence that her experiences at the Orphanage might have affected her psychiatrically and contributed to the difficulties she has experienced since leaving the Orphanage. The question is, however, 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 short, one would have expected her to ask what it was that caused the depressive states that precipitated her drinking to excess. There is no evidence that she did not do so or of what response she might have received if she did. Ms Stephenson’s remarks suggest that a connection was being suggested even at that time in 1994. In passing it may be recalled that the writ was issued on 27 July 1998, which was before the report dated 29 September 1998 was received. [17] In my opinion, the learned judge was entitled to conclude as she did that the plaintiff had not proved that a material fact of a decisive character was not within her means of knowledge before 29 September 1998. [18] Another factor that entered into the exercise of her Honour’s discretion in dismissing the application to extend time was the prospect of prejudice to the third defendant through the delay in bringing the action or making the application. The alleged events took place some 25 to 30 years ago. Some of the potential witnesses are very old and -- 6 of 29 -- 7 their memories have faded; and some have moved away or have died. In dismissing the application, the learned judge took account of the disadvantages that the third defendant might suffer in attempting to defend the plaintiff’s claim so long after those events had taken place. That is a factor that may legitimately affect a decision not to exercise the discretion under s 30(2) to extend the limitation period. See Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 544, 546-547, 551. [19] The reasons for judgment in Taylor’s case suggest that here there may be a presumption of prejudice to the third defendant in having to defend itself at a trial taking place after such a long a time; but there is also affirmative evidence of actual prejudice in this instance, in relation, for example, to the incident on 11 August 1968 in the motor vehicle, in which the plaintiff says she told the two Departmental employees of what was happening to the plaintiff at the Orphanage. The evidence of that incident is an important part of the plaintiff’s claim that the third defendant was, or ought to have been, aware of the rapes and other mistreatment that were taking place. It makes it more likely that the third defendant would be found to be legally liable for those acts if it took no steps to investigate or prevent them from happening. The two employees have been interviewed. Not surprisingly, they have no recollection of an event that occurred so long ago. Mr Howard submits that any such prejudice to the third defendant was no greater than the corresponding prejudice which the plaintiff would suffer at the trial. But the idea that equality in the prejudice likely to ensue somehow serves to foster a fair trial in circumstances like these was rejected by Toohey and Gummow JJ, and also by McHugh J, with whom Dawson J, agreed, in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 549, 55. [20] Finally, reference should be made to the Report of the Commission of Inquiry in the Abuse of Children in Queensland Institutions (the Forde Report) delivered in May 1999 and printed in November 2000 which was after this application had been heard and dismissed. Mr Hanson QC for the third defendant did not object to its being tendered on the appeal, although it was, of course, not placed before the primary judge. It contains information tending to confirm some of the plaintiff’s complaints about Neerkol, but does nothing to assist a resolution of the questions arising under s 30(2)(a) of the Limitation of Actions Act, which is the real issue on this appeal. It contains little or nothing that promises to eliminate the prejudice that the third party will encounter in defending the plaintiff’s claim at a trial of this action. [21] As regards the fourth defendant, the facts about what he did to the plaintiff have always been well known to her. She could have sued him at any time for damages for assaulting and raping her. Mr Howard submitted that it was not until Dr Birkett’s report was received that she realised that she had sustained psychiatric injury as a result of his conduct. She was, however, 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. Mr Howard’s response to that was that the amount awarded for exemplary damages in Queensland have in the past been so pitifully small that, until the plaintiff became aware of Dr Birkett’s report on her psychiatric condition, she had no cause of action worth pursuing. He cited Henry v Thompson [1989] 2 Qd R 412, where only $25,000 was awarded as exemplary damages for a brutal assault carried out by police on an Aboriginal prisoner. But the $25,000 award in that case was made in the District Court at a time when the upper monetary limit of -- 7 of 29 -- 8 its jurisdiction was only $40,000 in actions of this kind, so that it represented more than half of the amount capable of being awarded in that case. Considerable depreciation has taken place in the value of money since that time. The jurisdiction of the Supreme Court, in which this action has been brought, is of course subject to no monetary limit, so that it would not have affected the amount that could have been awarded to the plaintiff if she had sued the defendant so much earlier. [22] Her Honour refused to extend the limitation period against the fourth defendant. In doing so, no finding was made in his favour that he would be prejudiced by the delay before the trial, and there is no cross-appeal against that finding. It is, therefore, not a factor that need be considered in the proceedings against that defendant. [23] In my opinion, the plaintiff has failed to show that her Honour’s decision was wrong. It follows that the appeal should be dismissed with costs. [24] MUIR J: I agree with the reasons of McPherson JA and with the order proposed by him. I wish to add only a few observations of my own. [25] The “material fact of a decisive character relating to the (appellant’s) right of action” relied on by the appellant at first instance and on appeal was “the fact that the appellant suffers from a psychiatric injury (depression) and that the injury has been caused (at least in part) by the abuse she suffered at the Neerkol Orphanage.” The appellant’s case was that these matters were not within her means of knowledge until she read Dr Burkett’s report on or about 7 October 1998. The learned primary judge found to the contrary. [26] The appellant contends that the primary judge erred in so concluding. Subject to the challenge to the primary judge’s findings on the question of prejudice resulting from the delay, as no other error of fact or law has been identified by the appellant, the appeal can succeed only if the appellant demonstrates that the primary judge’s findings in this regard were not reasonably open to her on the evidence. [27] The material does not suggest that the applicant was not fully conscious throughout of the nature and extent of the grave acts allegedly perpetrated on her person. Nor does she swear to a lack of understanding of a connection between the alleged abuse at Neerkol and her mental condition. What she swears to is a belated appreciation of the existence of relevant expert evidence, stating- “It was not until I read Dr Burkett’s report that I appreciated there was expert evidence indicating that my experiences of abuse at the Neerkol orphanage may have affected me from a psychiatric point of view and contributed to the difficulties I have experienced since leaving the orphanage. I had received psychiatric treatment prior to seeing Dr Burkett but there was never any mention or indication of a connection between the abuse I suffered and my current condition.” [28] The primary judge concluded that the new fact relied on by the appellant, went to the extent of the injury suffered by her, not to the existence of the cause of action. Having regard to the horrific and protracted nature of alleged abuse, I am unable to conclude that this finding was not open on the evidence. -- 8 of 29 -- 9 [29] Even if the finding under consideration could be shown to be affected by error, the appellant’s reliance on the discovery of a connection between psychiatric harm and the alleged abuse at Neerkol is highly problematic. She swears to having “always” harboured a hatred for the fourth respondent and the nuns at Neerkol and to linking her aggressive behaviour as a young person with the “physical and sexual abuse” allegedly suffered by her. [30] The primary judge noted in her reasons that throughout her life the appellant, since leaving care, had received treatment from psychiatrists. There was no effective challenge to that finding. Her Honour also observed in her reasons that - “Only after considerable difficulty has the third defendant been able to obtain one report from Ms Stephenson, a psychologist dated 10 March 1994 which makes reference to an adverse consequence of the applicant’s institutionalisation – that she had developed feelings of inferiority because of the imposition of authority.” [31] No evidence was forthcoming about the nature and extent of the other consultations, the extent to which the applicant’s Neerkol experiences were adverted to in the course of those consultations or the conclusions, if any, drawn by the applicant about any connection between those experiences and her psychiatric condition. [32] A fact cannot be said not to be within the means of knowledge of a person if “so far as the fact is capable of being ascertained by (the person) he (or she) has not “taken all reasonable steps to ascertain the fact”.1 That test is an objective one applied to a person with the background and circumstances of the applicant for an extension of the limitation period.2 The appellant’s background and circumstances include her history of requiring psychiatric care. There was no evidence, however, aimed at establishing, directly or indirectly, that the appellant’s mental or emotional condition adversely affected her ability to link her psychiatric condition to the alleged abuse at Neerkol or to make the assessment contemplated by s 30(1)(b) of the Limitation of Actions Act 1974. [33] Another issue on appeal was whether the primary judge erred in concluding that had she otherwise found in favour of the appellant she would have exercised her discretion against her on the basis of prejudice to the third respondent arising from delay. The primary judge’s reasons explained in some detail the evidentiary difficulties facing the third respondent. No flaw in her Honour’s reasoning in this regard was exposed in argument. [34] McHugh J’s reasons in Brisbane South Regional Health Authority v Taylor 3 explain the evidentiary problems facing a defendant in the position of the third respondent as a result of the effluxion of time. The ability of the third respondent to adduce worthwhile evidence in its defence, plainly, has deteriorated very substantially since 1971. [35] I am not persuaded by any argument to the effect that the horrific nature of the wrongs allegedly perpetrated on the appellant and the nature of the alleged responsibilities of 1 Limitation of Actions Act 1974 s 30(1)(c)(ii). 2 Randall v Brisbane City Council (1984) 2 Qd R 276 at 285 and Castlemaine Perkins Limited v McPhee (1979) Qd R 469, 472-3. 3 (1996-1997) 186 CLR 541. -- 9 of 29 -- 10 the third respondent for those alleged wrongs make it inappropriate that the limitation period not be extended. The role of the Court on an application such as this is to construe the relevant statutory provisions and apply them in the light of the admissible evidence. [36] I accept that the fact that times have changed so that the bringing of an action of the nature of the one commenced by the appellant is now more readily contemplated by victims in similar circumstances as the appellant may have relevance. It may, for example, be relevant to an assessment of what a reasonable person knowing the facts relied on by the appellant (and having taken appropriate advice) would have regarded those facts as showing for the purposes of section 30(1)(b) of the Limitation of Actions Act 1974. [37] There is, however, another consequence of changing social attitudes and perceptions. If a trial of the appellant’s claims is to take place in 2002 or 2003 it will be one in which the conduct of the defendants some 30 years ago will be assessed by a tribunal imbued with contemporary values and perceptions. The tribunal, no doubt, will endeavour to make whatever adjustments are required by law to be made. But even the resolution of primary facts may be rendered more difficult by changes in customs, attitudes and perceptions. The evidence of witnesses routinely needs to be weighed against objectively ascertainable facts as well as in the light of inherent probabilities or improbabilities. What may seem inherently probable or improbable to a tribunal considering a matter in about 1971 may not necessarily be seen in the same light by a tribunal thirty or so years removed from that time. Behavioural patterns change, often imperceptibly and the extent to which they change can at times be unrecognised. [38] Also, there is a likelihood that it will be impossible for reliable evidence to be given of facts and circumstances surrounding alleged incidents or series of incidents, which evidence, had the action been brought within time, may have been available to assist in disproving such allegations. For example, the evidence of rapes perpetrated at particular times and places may have been able to be tested by reference to routines adhered to at the time by the fourth respondent and others. With the passage of time evidence of that nature will tend to become less accessible as well as less reliable after thirty or so years. The point may well have been reached at which no such evidence, however general or qualified, can be adduced. These considerations support the conclusion reached by the primary judge on the question of prejudice. [39] ATKINSON J: There is usually no conflict inherent in the goal of modern litigation which is to produce a just result expeditiously. Indeed, delay in litigation may often lead to injustice to one or both parties. However, from time to time justice and expedition may appear to be in conflict with one another.4 The legal system is now dealing with a number of civil and criminal cases which have arisen out of the alleged mistreatment and abuse of children who were brought up in institutions and who are now adults. There has been sufficient community concern about such allegations to give rise to a number of extra-judicial inquiries which have led to reports into the separation of Aboriginal and Torres Strait Islander children from their families5 and 4 Spigelman, CJ, “Judicial Accountability and Performance Indicators” at p 6, Paper presented at ‘1701 Conference: The 300th Anniversary of the Act of Settlement, Vancouver, British Columbia, Canada’, 10 May 2001. 5 Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, Bringing Them Home, Human Rights and Equal Opportunity Commission, 1997. -- 10 of 29 -- 11 into the treatment of children in Queensland orphanages.6 These reports deal with the treatment of children who were put into institutions because their parents died, or their parents neglected or abandoned them or gave them up because of social or economic hardship, or because they were removed from their families. They contain moving accounts of the suffering of children who lived in such institutions. [40] It is perhaps not surprising that many of these children, now adults, have been left with lasting scars as a result of their childhood experiences and that some seek compensation through civil proceedings. However, when they do so, both the proposed plaintiffs and the proposed defendants face difficulties caused by the lapse of time since the events occurred and the limitation periods to which such delays give rise. Similar problems have been faced in other jurisdictions with regard to civil actions for sexual offences against children. La Forest J commenced his landmark judgment for the majority in the Supreme Court of Canada in M(K) v M(H)7 by saying: “This case concerns the procedural obstacles facing victims of childhood incestuous abuse who attempt to vindicate their rights in a civil action for damages against the perpetrator of the incest. While the problem of incest is not new, it has only recently gained recognition as one of the more serious depradations plaguing Canadian families. Its incidence is alarming and profoundly disturbing. The damages wrought by incest are peculiarly complex and devastating, often manifesting themselves slowly and imperceptibly, so that the victim may only come to realize the harms she (and at times he) has suffered, and their cause, long after the statute of limitations has ostensibly proscribed a civil remedy. It has been said that the statute of limitations remains the major stumbling block for adult survivors of incest … ” So it is in this case. Helen Carter is one of these children, now an adult, who lived in an institution and according to psychiatric reports is terribly affected by abuse suffered in an orphanage whilst under the care and protection of the State. [41] Ms Carter was born on 23 March 1960. When she was only a year old, on 5 June 1961, Ms Carter was made a “State Child” and she and her brothers and sisters were placed in St Joseph’s, Neerkol (“Neerkol”) in Rockhampton. Under the scheme of the State Children Acts 1911-1955, private institutions were authorised by the Governor in Council to receive State Children. Neerkol was one such institution and received financial support in respect of each State Child under its care. The management and supervision of the institution was the responsibility of the Corporation of the Sisters of Mercy of the Diocese of Rockhampton (“Sisters of Mercy”) and the Roman Catholic Trust Corporation for the Diocese of Rockhampton (the “Church”). The orphanage was, however, subject to ministerial overview and the auditing of its accounts by the State Government. [42] Documents which Ms Carter obtained from the State of Queensland pursuant to a Freedom of Information (FOI) request shows that in April 1964, when Ms Carter had just turned four years old, a medical officer examined her and found that she was 6 Commission of Inquiry into Abuse of Children in Queensland Institutions, May 1999. 7 [1992] 3 SCR 6 at 17; (1992) 96 DLR (4th) 289 at 293. -- 11 of 29 -- 12 “destructive in her habits [and] a menace to the other children”. He recommended she “be sent to an institution for the mentally sick.” Later in the same year the nun in charge of Neerkol reported, “Doctor has decided to quieten her down with sedation and watch her closely himself so as to be able to give correct information regarding her vicious habits.” She noted that a nun who was gentle with her appeared to have a good effect on her. [43] Ms Carter alleges in an affidavit filed in these proceedings that when she was about 5 or 6 years old, she was first sexually abused by the fourth defendant, Kevin Baker. Mr Baker was employed at Neerkol while Ms Carter was at the orphanage. His duties ranged from driving the school bus to supervising the children. [44] At the time of first sexual assault, Ms Carter says she was playing with another girl around the area of the men’s living quarters. They were playing with matches and were trying to light a cigarette. Mr Baker saw them and walked over. The girl with whom Ms Carter was playing ran away and Ms Carter was left alone with Mr Baker. He asked her to go with him, which she did thinking he was taking her to the Mother Superior. Instead he took her down under the steps of the working quarters. He sat her on the dirt and told her he was going to teach her a lesson. He moved her legs apart and pulled her underpants to one side and fondled her genitals. The applicant was frightened and cried throughout. [45] Other instances of abuse are alleged to have followed. Mr Baker also used to make Ms Carter meet him in his room. She complied as she was afraid to disobey him and felt that there was nothing she could do to stop him. During these visits, the level of abuse is alleged to have escalated, with instances of ejaculation and forced oral sex and occasions when he sexually assaulted her with an empty soft drink bottle. Ms Carter was, she alleges, only seven years old the first time she had sexual intercourse with Baker. It caused pain and bleeding. From this time on, Baker continued to have sexual intercourse with Ms Carter at least once a week, with the frequency increasing to a daily occurrence by the time Ms Carter left the orphanage. [46] In addition to the sexual abuse, Ms Carter alleges cruelty and neglect in her treatment by the nuns and lay staff who provided care for the children at the orphanage. Allegations of physical cruelty include savage beatings, burning with a metal rod and near drowning in the bath. Ms Carter had a stutter whilst she was a child. Mental abuse included cruel teasing about her stuttering, being locked in confined spaces and being tied to a pole. She said she was regarded as evil because of her stammer. She was frequently sedated. Her evidence is supported by other witnesses who lived at Neerkol as children. [47] In February 1967, when she was still only six years old, Ms Carter was transferred to St Vincent’s Orphanage, Nudgee (“Nudgee Orphanage”) and remained there for approximately one and a half years. The applicant was transferred from Neerkol on the grounds that she was ‘vicious and given to assaulting other children at the Home’. It was considered that the applicant was a danger to other children. Whilst at Nudgee Orphanage the appellant was visited regularly by Dr Maud Lamb. On 8 May 1967, Dr Lamb wrote in response to a letter to her from the Department: “… I must state that at no time have I considered suggesting the child’s transfer to a special hospital. -- 12 of 29 -- 13 She is of normal intelligence and does not in my opinion require psychiatric treatment. From a severely deprived background, Helen is a large child for her age with a severe speech defect. Failure to communicate is a very frustrating experience and she quite understandably uses her weight to gain her points. Helen is at present attending speech therapy session at Mary Street. She has been relating quite well with other children and the therapist. I am pleased to have at any rate part of the history of this child from the Department of Children’s Services but the last report is dated 1964 and I still require details of her history for the last 2 1/2 years.” [48] As a result, in June 1967, the Deputy Director sent a minute to the Director of the Department passing on her observations: “Dr Lamb feels that the Sisters at St Joseph’s [Neerkol] have not shown a full understanding of a girl of this type, who in her opinion, suffers from deprivation. A report from St Joseph’s had stated that the girl is inclined during the night, to bang her head on the pillow, which she states is not unusual for children, who are inmates of Institutions for many years, and are deprived of the affection a child would receive in a family setting. She feels that ultimately, Helen’s interests would be best served by a fostering placement with a couple who have no children smaller than her, but where she would receive individual attention from members of the family.” [49] In August 1968, however, the appellant was returned to Neerkol. On or about 11 August 1968, Ms Carter alleges she made a complaint to Mr O’Connor and Miss Mullins of the Department of Children’s Services on the way from Rockhampton to Neerkol. Ms Carter told them of Baker’s sexual abuse and of the nuns’ harsh treatment. Ms Carter says Mr O’Connor responded by stopping the car and slapping her face. He told her that she would have to repeat the allegation to the head nun. The applicant did so and was caned as a result. She alleges the abuse continued when she returned to Neerkol. [50] Ms Carter attended the North Rockhampton State Opportunity School (the “Opportunity School”) for part of 1971 and 1972. This was the only primary school she says she attended while at Neerkol. Mr Baker would drop her off and pick her up in the afternoon. She alleges that Mr Baker would make her be the last one off the bus and then would fondle her and remind her that it was their ‘little secret’. He also hurt and mocked her in front of other children. [51] In March 1972, the Principal at the Opportunity School made a complaint to Mr O’Connor about Ms Carter’s behaviour at the school. He also notes that she had made good scholastic improvement but threatened to exclude her from the school if her hyperactivity was not controlled. Miss Mullins suggested to Mr O’Connor that Ms Carter be kept home from school for treatment as she had been taken off sedation and her behaviour had deteriorated. -- 13 of 29 -- 14 [52] On the other hand, in June 1972, a child care officer from the Department of Children’s Services in Toowoomba told the Rockhampton office of the Department that the mother of one of the teachers at the Opportunity School was interested in fostering Ms Carter because of the attachment her daughter felt towards her. The officer suggested that any further investigation be postponed so that Ms Carter’s family background could be checked. [53] On 31 July 1972, Ms Carter was admitted to Warilda Children’s Home and then fostered out to various homes. On 21 January 1975, she was admitted to Wolston Park Hospital with perceived mental problems. She was discharged from Wolston Park Hospital on 13 March 1976, and was placed in a hostel for girls. She left shortly after to live on the streets with a boy, Jaimie, to whom she became pregnant. Jaimie was killed in a motor vehicle accident and Ms Carter developed an alcohol problem. She was married at 19, had five children of that marriage and is now separated, following the death of her youngest child at the age of three months in 1992. Her marriage was characterised by verbal and emotional abuse. She had a very limited education, has a poor employment history and has had a longstanding alcohol problem. [54] Ms Carter commenced an action by Writ of Summons filed on 27 July 1998. The amended statement of claim filed 28 July 2000 shows that Ms Carter claims that between June 1961 and July 1972, she was “assaulted, beaten, physically abused and mentally tormented by nuns and other staff who worked at [Neerkol]”. She alleges that she was “raped, sexually assaulted and assaulted” by Mr Baker. As a result she suffered personal injury including mental and psychiatric injury. She alleges that the State of Queensland was her guardian from 5 June 1961 and that it, along with the Sisters of Mercy, owed her a duty and/or a fiduciary duty to maintain her health, safety and well being; ensure that she was not assaulted, hurt or otherwise interfered with in a sexual manner or otherwise; and to take all reasonable steps to ensure her welfare and proper upbringing. She alleges that they were in breach of those duties. She therefore claims damages for negligence and damages and equitable compensation for breach of fiduciary duty against the Sisters of Mercy, the Church and the State of Queensland. She claims damages, including exemplary and aggravated damages, for assault against Mr Baker. [55] Section 29(2)(c) of the Limitations of Actions Act 1974 (“Limitations Act”) provides that any action for damages for personal injury must be brought within three years from the date on which the person ceased to be under a disability. Ms Carter ceased to be under a legal disability because of her age when she turned 18 on 23 March 1978. [56] The State of Queensland pleaded that the claim for personal injury for negligent breach of duty was barred by the Limitations Act. Mr Baker pleaded a similar bar to the claim for assault against him. On 20 August 1999, the Sisters of Mercy and the Church settled Ms Carter’s claim against them on confidential terms but the State of Queensland has brought contribution proceedings against them. The Sisters of Mercy have unreservedly apologised to the former residents of Neerkol who were “victims of physical, psychological, emotional and spiritual abuse.” In a letter of apology dated 25 September 1997, they said: “Having had the opportunity to listen to some of your experiences and hear the instances of brutality you describe, we have been helped to understand the hurt, humiliation and pain you suffered, and continue to -- 14 of 29 -- 15 suffer daily throughout your lives. We acknowledge it is time to recognise the unprovoked, unnecessary and ongoing abuses you endured, and we are sorry that we failed to imagine how you must have felt when subjected to such unwarranted physical suffering.” [57] The claim by Ms Carter against the State of Queensland for breach of fiduciary duty and equitable compensation is not affected by the limitations defence and so is able to continue whatever the outcome of this appeal. [58] The limitations period in respect of the claims for negligence and assault expired on 23 March 1981. The plaintiff brought an application for an order that the period of limitation within which to commence the proceedings in this action for damages for personal injury be extended until 27 July 1998, the date on which she commenced proceedings in the Supreme Court. [59] The appellant seeks to have this Court set aside the order dismissing her application to extend time pursuant to s 31 of the Limitations Act and order that the time for commencement of an action for personal injuries be extended to 27 July 1998. [60] Section 31 of the Limitations Act provides: “Ordinary actions 31.(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.” [61] The interpretation of s 31 is governed by s 30 which provides: -- 15 of 29 -- 16 “Interpretation 30.(1) For the purpose of this section and section … 31, … (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 caused 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 at that time know the fact; and (ii) so far as the fact is capable of being ascertained by the person, the person has before that time taken all reasonable steps to ascertain the fact. (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.” [62] This Court has previously remarked unfavourably on the complex and technical nature of these provisions and the fact that they have been a fertile source of litigation.8 The need for law reform is manifest and it has already been the subject of a Queensland Law Reform Commission Report (“QLRC Report No 53”).9 This is particularly so in the case of civil action by an adult for sexual abuse suffered as a child, where the right to sue may depend on the many different statutory provisions related to accrual of a cause of action or extension of the relevant period of limitation.10 In Canada, statutory reform has now allowed survivors of childhood sexual abuse to pursue legal action at 8 See Carlowe v Frigmobile P/L [1999] QCA 527; CA No 1512 of 1999, 22 December 1999, at [9]. 9 Review of the Limitation of Actions Act 1974 (Qld) Report No 53, September 1998. 10 See for example the discussion by A Marfording, “Access to Justice for Survivors of Child Sexual Abuse” (1997) 5 Torts Law Journal 221 at 238-248. -- 16 of 29 -- 17 any time.11 There is academic, judicial and legislative support for abolishing the statute of limitations with regard to childhood sexual abuse cases.12 [63] The first question13 determined by the learned Chamber judge was whether a material fact of a decisive character was within the means of knowledge of the appellant earlier than one year before the date of commencement of the action.14 The second question was whether the prejudice to the respondents by reason of the delay was such that the application should be refused on discretionary grounds. [64] There seemed to be little doubt that there is evidence to establish the right of action apart from a defence founded on the expiration of the period of limitation. Firstly, there is contemporary documentary evidence. The confidential volume of the Report of the Commission of Inquiry into Abuse of Children in Queensland Institutions15 (“the Forde Inquiry Report”) says of those documents with regard to Ms Carter: “Contemporary documents show that this child who was admitted to Neerkol in 1961 had a severe speech impediment, was aggressive to other children and exhibited other behavioural disturbance in the form of activities such as head banging. When she was four years old the orphanage’s then medical officer recommended that she be sent to ‘an institution for the mentally sick’. In 1967, the child was transferred to St Vincents Orphanage in Brisbane and was there examined by a psychiatrist. Her conclusion was that the child was of normal intelligence, not requiring any psychiatric treatment, rather her severe speech defect was frustrating her, causing her to use her strength against other children. While at St Vincents she was given speech therapy and was noted to be relating well to the therapist and other children. However, in 1968, she was returned to Neerkol and it does not appear that any further speech therapy or other intervention took place. Thereafter, there are records of her aggression and tantrums. Eventually, she was sent to the Rockhampton Opportunity School as it was then known, but her behavioural problems continued, leading to her being transferred in 1972 to Warilda. Eventually, she was placed in Wolston Park for a period, but it was noted that she had no psychiatric disorder and indeed was most inappropriately placed there.” [65] In addition, there is the evidence which Ms Carter and other residents are able to give of the abuse and neglect she suffered at Neerkol. She gave evidence at the Forde Inquiry where the following findings were made of her:16 “It was apparent that she was of normal intelligence and had long since overcome her speech defect. It seems likely that her behavioural problems were to a very significant extent contributed to by sexual acts being committed on her by an employee of the orphanage over a 11 M(K) v M(H) (supra) at 49. 12 G Hood, “The Statute of Limitations Barrier in Civil Suits brought by Adult Survivors of Child Sexual Abuse: A Simple Solution” (1994) 2 Uni of Ill L Rev 417 at 441; A Marfording (supra) at 252-254; M(K) v M(H) (supra) at 49; QLRC Report No 53 pp 152-153 but cf 160. 13 Stripped of its double negatives. 14 Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325 at 334 per Macrossan J; Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306 at 307 per Lee J. 15 May 1999, p 6. 16 (supra) p 6. -- 17 of 29 -- 18 number of years. In her account, and that of other residents, her various behavioural problems were responded to with punishment. What is certainly apparent from her file is that at no stage at Neerkol, despite the report of the psychiatrist who had seen her in Brisbane, was there any therapeutic or educational intervention to assist her. Her experiences are extreme, but they are representative of the lack of specialist assistance available to children at Neerkol as recently as the early 1970s.” Material fact of a decisive character [66] A fact which may be material to a right of action includes the fact of the occurrence of the negligence or breach of duty on which the right of action is founded, the identity of the person against whom the right of action lies, the fact that the negligence or breach of duty has caused personal injury, the nature and extent of the personal injury so caused and the extent to which the personal injury was caused by the negligence or breach of duty.17 [67] A material fact will be of a decisive18 character if, but only if, firstly under subsection 30(1)(b)(i) of the Limitations Act a reasonable person knowing those facts and having taken the appropriate advice on those facts would regard those facts as showing that an action on the right of action would 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 secondly, pursuant to subsection 30(1)(b)(ii) of the Act, 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, bring an action on the right of action. Appropriate advice means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts. [68] This is similar to the American rule known as the delayed discovery rule19 which provides that a cause of action will not accrue until the victim discovers, or with the exercise of reasonably diligence should have discovered, not only the fact of the injury or its true extent, but also that the injury was probably caused by the defendant’s conduct. This rule has been applied to cases of sexual abuse where the alleged victim may have a subjective view of this but has no objective information as to the nature of his or her injuries or the facts with respect to their cause. [69] In Canada and New Zealand, this is referred to as the reasonable discoverability rule. It has been applied to the situation in which victims of sexual abuse may find themselves. In Canada, the Supreme Court has postulated that the test under this rule is the same as the test under a statutory provision in British Columbia which is in similar terms to s 31 of the Limitations Act.20 The critical issue to be drawn from the 17 Limitation of Actions Act 1974 s 30(1)(a). 18 Limitation of Actions Act 1974 s 30(1)(b), 30(2). 19 Hansen v AH Robins Co 113 Wis 2d 550, 335 NW 2d 578 (1983); Hammer v Hammer 418 NW 2d 23 (Wis App 1987) at 26. 20 In M(K) v M(H) (supra) at 45-47, La Forest J applied the test applied in British Columbia in Gray v Reeves (1992) 64 BCLR (2d) 275 at 309 by Hall J: “… it seems to me that the hypothetical reasonable person in the shoes of the plaintiff here would not have been acting sensibly in commencing an action until such a person came to appreciate that a wrong or wrongs that had occasioned significant harm to her wellbeing could be established”. -- 18 of 29 -- 19 Canadian cases is not whether the plaintiff was aware she had been wronged and had suffered adverse effects but when did she discover her cause of action in the sense of her having a substantial awareness of the harm and its likely cause. [70] The New Zealand Court of Appeal, following the Canadian Supreme Court decision in M(K) v M(H),21 held in S v G:22 “… the sexual abuse victim who reasonably has not linked serious psychological and emotional damage to the abuse does not have the limitation period run merely because of awareness of the symptoms of that damage. It is only when the psychological damage is or reasonably should have been identified and linked to the abuse that it can be said that the elements of the cause of action are known and thus the cause of action has accrued.” In this State, the question is whether or not the applicant’s case falls within the extension provisions of s 31 of the Limitations Act. [71] In this case, a material factor of a decisive character relating to the right of action must not have been within the means of knowledge of the respondent until 27 July 1997, being one year before the commencement of the action. It would not have been within the means of knowledge of a person at a particular time if, but only if, the person did not know the fact at that time and so far as the fact was able to be found out, the person had taken all reasonable steps to find out the fact before that time.23 [72] Unless the appellant can show that “the judgment reveals that the conclusion is affected by some error of law or fact . . . there is no basis for appellate interference”.24 This Court should be cautious in overturning a decision and not do so merely because if it were considering the application rather than the appeal, it may have come to a different decision. The findings of fact and the determination of whether those facts satisfy the requirements of the statute are made in an area where different minds might reasonably reach different conclusions. [73] The test for whether or not a fact was within her means of knowledge depends on whether the respondent took all reasonable steps to find out that fact.25 This test has both subjective and objective elements.26 What is relevant is the means of knowledge of the respondent and not of some hypothetical reasonable person.27 It is therefore important to examine what Ms Carter knew and what was within her means of knowledge. [74] It appears that Ms Carter consulted Mr Suthers, a solicitor in Maryborough, after the death of her son in 1992 in relation to the coronial inquest. The solicitor also 21 (supra). 22 [1995] 3 NZLR 681 at 687. 23 Limitation of Actions Act 1974 s 30(1)(c). 24 Pizer v Ansett Australia Ltd [1998] QCA 298; CA No 6807 of 1998, 29 September 1998, per Thomas JA at 9. 25 Moriarty v Sunbeam Corporation Limited (supra) at 329; Taggart v The Workers’Compensation Board of Queensland [1983] 2 Qd R 19 at 23-24; Sugden v Crawford [1989] 1 Qd R 683 at 685. 26 Dick v University of Queensland [1999] QCA 474; CA No 3204 of 1999; 12 November 1999 at [36] per Thomas JA. 27 Dick v University of Queensland (supra) at [30] per Thomas JA. -- 19 of 29 -- 20 investigated a possible personal injuries action by her against the Wide Bay Regional Health Authority in respect of liability for the death of her son. The purpose of visits to a psychologist, Sally Stephensen, at that time was to support the proposed claim of negligence occasioning personal injury. On 10 March 1994, Ms Stephensen wrote to Mr Suthers saying: “Mrs Carter’s childhood was spent in institutions, and for a short time in a foster home, where is appears people imposed their authority over her. As a consequence, she has developed feelings of inferiority. She is now in the process of dealing with people in authority, who give similar negative feedback. This seems to be interfering with her grief process. It appears the reasons she sees as the cause of her son Zachary’s death, are not the same as those being given by those who attended her child. It seems she is being denied her reality of the cause of her son’s death. The unresolved grief has caused an excess of anxiety. The anxiety and consequent helplessness, is having a marked effect on her daily life.” The legal action did not continue. Her time in institutions as a child was linked with problems in dealing with figures of authority but not with any recognised psychiatric disorder. [75] Ms Carter says she always harboured a hatred for Mr Baker and the nuns who abused her but did not ever consider that she was entitled to compensation in respect of their treatment of her. She said she was very reluctant to discuss her experiences with anyone. However, in the early part of 1997 she became aware of other persons who had suffered abuse at Neerkol. She decided to make a complaint to the police. On 6 August 1997, Ms Carter consulted a solicitor, Chris Kohler of Dean Kath & Kohler of Toowoomba, with regard to that complaint to the police. [76] Mr Kohler, in an affidavit sworn in these proceedings, said he informed Ms Carter that he could not assist her to any great extent as the matter was then in the hands of the police but that he could investigate the possibility of a claim for damages or compensation. Between August 1997 and March 1998, Mr Kohler investigated the plaintiff’s prospects of succeeding in a damages action, considered joining in a “class action” for other persons who were at Neerkol, engaged in settlement discussions with the Church and the Sisters of Mercy and investigated the identity of the proposed defendants in any action. In March and May 1998, Mr Kohler had consultations with Mr Warwick of counsel for the purpose of settling a writ. In June and July 1998, Mr Kohler made attempts to get legal aid for Ms Carter. [77] In June 1998, pursuant to an FOI request, Ms Carter received a copy of numerous Department files pertaining to her. There are approximately 300 pages from 1961 to 1978 inclusive, almost all of which refer to the plaintiff. Such material as is before the court tends to support the plaintiff’s allegations. [78] On 27 July 1998, out of an abundance of caution and on counsel’s advice, Mr Kohler caused the Writ of Summons to be filed. He says that at that time he had no idea about the plaintiff’s prospects of success and whether the difficulties she had -- 20 of 29 -- 21 experienced with her life since leaving Neerkol could be attributed to the abuse of which she complains. [79] On 31 August 1998, Ms Carter was examined by Dr Eileen Burkett, a psychiatrist. Dr Burkett provided a report to Ms Carter’s solicitors, dated 29 September 1998. Her primary diagnosis was alcohol abuse with chronic dysthymia. Ms Carter says that it was not until she read Dr Burkett’s report that she appreciated that there was expert evidence indicating a link between her experiences of abuse at Neerkol and her psychiatric difficulties. She said she had received psychiatric treatment prior to seeing Dr Burkett but there was never any mention or indication of a connection between the abuse she suffered and her current condition. Mr Kohler says that it was not until he read Dr Burkett’s report that he realised there was expert evidence to support the conclusion that the plaintiff’s experiences at Neerkol have had an effect on her subsequent life and employability such that a worthwhile action for damages or compensation could be maintained. [80] On 9 August 2000, Dr Burkett swore an affidavit in which she referred to her report dated 29 September 1998. She goes on to say: “As indicated in my report, the Plaintiff at the time of my examination of her suffered principally from chronic depression and alcohol abuse. I consider that a contributing factor to her depression was the sexual, physical and mental abuse complained of whilst at the Neerkol Orphanage.” The second sentence explicitly makes the link which was only implicit in Dr Birkett’s earlier report. [81] In May 1999, the Forde Inquiry Report was published. It said with regard to Neerkol:28 “This institution is currently the subject of litigation and cannot be discussed in any detail in this report. A detailed analysis will be forwarded to the Minister in a closed report.” The “closed report” was not published until December 2000. [82] On 25 June 2000, Dr Kenneth Armstrong provided a report to Mr Kohler after meeting with Ms Carter on 21 and 28 May and 19 June 2000. He also met with two of her children and referred to reports by psychologists and psychiatrists, statements by Ms Carter to the police and records from Ms Carter’s childhood. He had given evidence to the Forde Inquiry on 12 November 1998 as an expert on the topic of the consequences of childhood abuse. Dr Armstrong is a consultant paediatrician at the Royal Children’s Hospital and a Senior Lecturer in the Department of Paediatrics and Child Health at the University of Queensland. Dr Armstrong said: “There is no doubt in my mind that Ms Carter suffered horrendous abuse through her childhood which has ongoing and significant impact on her functioning as an adult, her mental health, her ability to form relationships, and her ability to sustain meaningful employment.” 28 (supra) at p 98 -- 21 of 29 -- 22 [83] Dr Armstrong’s answer to the question of what impact the alleged abuse has had on Ms Carter’s development as a child and as an adult demonstrates the usefulness of a professional understanding of the developmental stages of childhood and empirical research into the effect of maltreatment of children in institutions in analysing the effect of Ms Carter’s childhood experiences on her situation as an adult. He concludes: “These 11 years in Ms Carter’s life had a massive effect on her development, and can be seen as the origin of many of her adult problems - depression, periods of alcoholism, and post traumatic stress disorder”. He also concluded that the abuse was entirely responsible for her employment history being characterised by short-term sporadic jobs because of the impact the abuse had on her. This impact included: “l her ability to trust individuals, particularly those in ‘authority’ positions l her cognitive ability was not allowed full development l her educational needs were ignored throughout primary school l her self esteem has been extremely fragile and l her mental health has been damaged by her early childhood experiences.” [84] He says that her childhood only prepared her for unskilled labour in a situation of minimum contact with other people. Even then problems with authority and her mental problems were, he thought, likely to intercede negatively. In contradistinction to this life preparation, apparently undertaken because of her ‘subnormal intelligence’, Dr Armstrong was of the view that Ms Carter was a woman of average intelligence who, given different life circumstances and an appropriate education, may have achieved much more lucrative and rewarding long lasting adult employment. [85] There are a number of material facts which were not within Ms Carter’s knowledge until after 27 July 1997. The first was the information contained in the documents received from the Department in June 1998 pursuant to a Freedom of Information request. These documents reveal information about her circumstances and tend to support the plaintiff’s case, particularly the letter by Dr Lamb of 8 May 1967 and the minute of the Deputy Director of 6 June 1967, which contain information which could not previously have been known to Ms Carter. The second was the report by Dr Burkett of 29 September 1998 linking her abuse at Neerkol with her psychiatric difficulties. Even so, it was not until Dr Burkett swore her affidavit on 9 August 2000, that the causative link was explicitly made. The third was the more detailed report by Dr Armstrong, an acknowledged expert on the consequences of childhood abuse, which was not received until 25 June 2000 and which found that the abuse she suffered at Neerkol has had significant impact on her mental health. Finally, the confidential volume of the Forde Inquiry Report to which reference has been made, was not available to the plaintiff until it was released in December 2000. This report reveals the breach of duty by the State with regard to its responsibility of the children at Neerkol. Until she became aware of these matters, she was not aware of the nature and extent of the personal injury caused to her nor the extent to which it was caused by the breach of duty. She did not know until then that an action by her for damages -- 22 of 29 -- 23 or compensation would have a reasonable prospect of resulting in an award of damages sufficient to justify the bringing of an action.29 [86] None of these facts were within her means of knowledge until after 27 July 1997. Whether the applicant failed to take all reasonable steps to ascertain the existence of a connection between disorder and abuse must be determined, as Byrne J held in Tiernan v Tiernan,30 “in the light of all the circumstances, including the personal background and situation of the applicant.”31 While a reasonably well-adjusted, ordinarily self-confident person might be able to make the requisite link and be prepared and able to take civil action for the wrongs done to them, typically adults who have survived such abuse are lacking in self-esteem and remain powerless.32 This particularly applies to Ms Carter. As Dr Armstrong observed, the treatment she was afforded as a child made the development of self and the feeling of self-worth impossible. [87] The Forde Inquiry Report notes that most of the witnesses at the Inquiry, who were residents in institutions as children, were between 40 and 60 years of age. Ms Carter is now 41 years old. The report says that this may reflect “the time it takes individuals to come to terms with their past to the point where they feel able to discuss their experiences.” As Stevenson J in the Supreme Court of Canada has observed:33 “For victims of sexual abuse to complain would take courage and emotional strength in revealing those personal secrets, in opening old wounds. If proceedings were stayed based solely on the passage of time between the abuse and the charge, victims would be required to report incidents before they were psychologically prepared for the consequences of that reporting. … delay in the reporting of sexual abuse is a common and expected consequence of that abuse … ” [88] The research literature on childhood sexual abuse shows that the initial effects of the abuse include fear, anger, hostility, guilt, shame, low self-esteem and depression.34 Apart from the initial effects, childhood sexual abuse is now believed to have severe long-term consequences, which often manifest themselves long after the victim has reached the age of majority. These include low self-esteem, feelings of isolation and alienation, major depression, inability to relate to others and difficulties with interpersonal, marital and sexual relationships.35 The resultant inability of a victim of 29 Cf Watters v Queensland Rail [2001] 1 Qd R 448 at 451-452 per McPherson JA; and at 457 per Thomas JA. 30 Supreme Court of Queensland, No 39 of 1992, 22 April 1993. 31 Tiernan (supra) at 3; Castlemaine Perkins Ltd v McPhee [1979] Qd R 469 at 473; Randel v Brisbane City Council [1984] 2 Qd R 276 at 278, 281, 285. 32 W v Attorney General [1999] 2 NZLR 709 at 725-726 per Thomas J. 33 R v L (WK) [1991] 1 SCR 1091 at 1101. 34 A Browne and D Finkelhor, “Initial and Long-Term Effects: A Review of the Research” in A Sourcebook on Child Sexual Abuse, D Finkelhor (ed), Sage Publications, Beverly Hills, 1986, pp 143, 149-150, 180, 183 quoted in A Marfording, (supra) at 224. 35 JL Herman, Father-Daughter Incest, Harvard University Press, Cambridge, 1981 pp 31-32, 83, 96-97, 99-100, L Stroessner Brunngraber, “Father-Daughter Incest: Immediate and Long-Term Effects of Sexual Abuse” (1986) 8 (No 4) Advances in Nursing Science 15 at 25, 27; Browne and Finkelhor (supra) p 156-157; referred to A. Marfording (supra) at 224; See also Handler “Civil Claims of Adults -- 23 of 29 -- 24 childhood sexual abuse to recognise the true nature of the abuse and the damage caused by it is well documented,36 as is the difficulty for the victim in complaining of the abuse.37 [89] It appears that Ms Carter was able to discuss her experiences to some degree with Ms Stephensen after the death of her son but no diagnosis was made at that time linking her childhood experiences with any psychiatric disorder capable of giving rise to a claim in damages. [90] As to whether the plaintiff ought in her own interests to have commenced the action within the limitation period, I can do no better than repeat the observations of Byrne J in Tiernan v Tiernan,38 who after dealing with liability in a case of childhood sexual abuse within a family, said: “It [is] necessary to ask whether a reasonable person who had received the appropriate advice of a competent lawyer would in mid-July 1971 have appreciated that she had on then known facts a reasonable prospect of success and of an award of damages sufficient to justify the suit. In 1971 the advice of a competent lawyer would not have been encouraging. In those days, when there was no community awareness that sexual abuse occurred in apparently normal families, let alone of the long-term effects of such abuse, the applicant might well have received advice along these lines. That the allegations: a. would probably be denied by the father and by the mother; b. might be received with a measure of scepticism, with the father suggesting they were the imaginings of an adopted, socially awkward, adolescent; c. were uncorroborated; d. were grave, involving criminal misconduct by a parent, and so would require clear proof before the tribunal of fact would find the claims probably to be true; (contrast the modern exposition in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1993) 67 ALJR 170). In 1971 a prudent solicitor would, I think, also have suggested that her father might attempt to portray her submission as evincing consent, explaining that, although such a conclusion was most unlikely, if it were reached it meant defeat: J.G. Fleming, The Law of Torts, 4th ed. (1971) pp. 79 – 80; cf. the 8th ed. (1992) at p. 82. As to the damages, a generation ago, when civil claims against a parent for sexual abuse were unknown in this State, the competent practitioner would have acknowledged that predicting the award was difficult. In principle, aggravated and exemplary damages were available. Molested as Children: Maturation of Harm and the State of Limitations Hurdle” (1987) 15 Fordham Urb LJ 709 at 716-717 quoted in M(K) v M(H) (supra) at 28. 36 S v G (supra) at 688; M(K) v M(H) (supra) at 36-37; Manning, J, “The reasonable sexual abuse victim: ‘A grotesque invention of the law’?” (2000) Torts Law Journal 6 at 7, 9; QLRC Report No 53 pp 149-151. 37 Mullis ACJ “Compounding the Abuse? The House of Lords, Childhood Sexual Abuse and Limitation Periods” (1997) 5 Medical Law Review 22 at 26 quoted in QLRC Report No 53 p 151. 38 (supra) at 5-6 -- 24 of 29 -- 25 However, the applicant had not sustained even temporary physical injury and in 1971 the long-term psychological impacts of child sexual abuse were not appreciated. Probably the applicant would have been told that the damages would not be assessed in a substantial sum because, apart from the nightmares and lingering thoughts, there were no residual consequences: cf. the different views of the Court of Appeal and the House of Lords in the child rape case Stubbings v Webb [[1992] 1 QB 197] at 206, 211; [1993] 2 WLR 120, 126 E-F. … Section 30(b)(ii) acknowledges that there may be sufficient reason not to launch proceedings which appear to have reasonable prospects of success and of resulting in an award sufficient to warrant the litigation: cf. the remarks of Hope J.A. in Roval North Shore Hospital v Henderson (1986) 7 NSWLR 283, 287 mentioned by Kelly S.P.J. in Moriarty at 330-331. In my opinion, a reasonable person in 1971, whatever view had been taken of the prospects of success and as to the damages, would have considered, taking into account the applicant’s circumstances, that she “ought” not in her “own interests” to have sued.” [91] More recently it has been accepted that a cause of action in negligence against the welfare authorities may arise in circumstances such as the plaintiff finds herself.39 [92] There are material facts of a decisive nature relating to the nature and extent to which the personal injury was caused by the breach of duty which were not within the plaintiff’s means of knowledge earlier than one year before the date of commencement of the action. Exercise of discretion [93] Once the appellant has satisfied the requirements of an extension of time under s 31(2) of the Limitations Act, she still bears the onus of showing that the justice of the case requires the exercise of discretion in her favour.40 [94] The learned chamber judge took the view that the prejudice to the State of Queensland was such that there could not be a fair trial of the allegations against it. The relevant departmental officers, Mr O’Connor and Miss Mullins, however are still alive and in their sixties and have denied the specific allegations against them. Many of the nuns are now either dead or very old but 54 former residents of Neerkol and 6 Sisters of Mercy who had been staff at Neerkol gave evidence to the Forde Inquiry. [95] In addition, as the Forde Inquiry Report has shown, the State of Queensland’s liability can be seen in the documentary history which shows the relationship between the State and Neerkol, rather than relying on individual memories. The confidential volume deals with this matter in some detail at pages 9-10: “The role of the State Children’s Department Under the relevant legislation (the State Children Act 1911 and the Children’s Services Act 1965), the Director of the State Children’s Department (and its various departmental successors) became guardian 39 TC v State of New South Wales (1999) Australian Torts Reports ¶81-500 at [94] - [191] per Studdert J. 40 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 546, 554. -- 25 of 29 -- 26 of State children or as they later were, children under Care and Protection, or Care and Control, orders. The Children’s Services Act 1965 specified a duty in the Director to use his powers and the Department’s resources to further the best interests of the children in his care. … Section 49(1) of the State Children Acts 1911 required all State children to receive a minimum of one visit every three months from an officer of the Department to ascertain whether any apprenticeship or work agreements in respect of them had been fulfilled and that their ‘treatment, education and care’ was satisfactory. The regulations required inspections of receiving institutions at least once per month. During the years in respect of which complaints by former residents of Neerkol were received, i.e. 1920’s through to the 1970’s, there was a State Children’s inspector (or as they were later known, District Officer) stationed in Rockhampton. However, few of the former residents could recall actually having been spoken to by an inspector at any time prior to being sent out to service. Inspectors’ visits to the home were usually anticipated, and preparations were made by way of extensive cleaning and improving of the home’s appearance eg., by placing quilts, not otherwise used, on beds. The children were not encouraged to speak to the inspector, and the possibility of extending an opportunity for complaint does not seem to have been entertained either by the departmental staff or those in charge of the home. There, was it seems, no real interest on the part of the Departmental inspectors in exploring the conditions in which children in the Home were living; rather the attitude was that the nuns deserved congratulation for their difficult work, and ought not to be challenged in any way. That perception arose, it must be said, in a context where the orphanage was underfunded and understaffed, and the nuns were expected to take every child in need of accommodation no matter how stretched their resources. On the other hand, the fact that the ratio of staff to children at Neerkol was grossly inadequate must have been apparent to those in charge of the Department. For example, during the 1950s, between 10 and 15 nuns cared for between 300 and 400 children at the Orphanage. External help was seldom engaged, except in the form of farm labour. Enquiry would have revealed, for instance, that one nun was responsible for the care of 45 boys in the big boys’ dormitory, while another nun with a single assistant had charge of 94 girls, big and little. In the nursery, a single nun with the help of two fourteen-year-olds was looking after 25 to 30 babies and toddlers. Notwithstanding, the Department continued to place children at Neerkol, without regard to its capacity to provide proper care for the number it was receiving, until its restructuring in the late 1960’s and early 1970’s. Another area in which the Department must be said to have failed in its obligations to the children at Neerkol is in its failure to make any -- 26 of 29 -- 27 attempt at maintaining family relationships. Parents were begrudgingly allowed visits to their children, but contact was not actively encouraged. Nor were the children kept informed about their families. Two of the witnesses who came to the Inquiry, despite having lived at Neerkol at the same time had only discovered in the months before giving evidence that they were half-brother and sister. It does not appear that the staff of the State Children’s Department in its office in Rockhampton had any training in their role, and it is clear that they were considerably overworked. Given those circumstances, it is unfair to criticise their performance as individuals. What can be justly criticised, however, is the failure of the Department of Children’s Services (as it became in 1965) to ensure that staff with training in child care and protection were employed in its Rockhampton office. Appropriate qualifications were available at least by the late 1960s; but qualified staff did not arrive at the Department’s central Queensland office until the late 1970s, a fact representative of an indifference to the Department’s obligations to regional children, manifested over decades. The consequence of that indifference was that no attention was given to the needs of individual children; no sufficient scrutiny of the circumstances in which the children were kept took place; and no opportunity was given for the children’s complaints to be heard. Worse, the evidence was that when some children did attempt to complain of abuse to departmental officers the response was disbelief and anger; and in some instances the complaint was relayed to the nuns, resulting in further reprisal. The State failed in its care of the children of which it was, through the Director of the Department, guardian.” Hundreds of pages of departmental records relating to Ms Carter have been disclosed in this action. However, it is said a number of other relevant departmental records have been destroyed or cannot be found. [96] The learned chamber judge held that she would not dismiss the application to extend time in respect of Mr Baker on the discretionary ground. The State of Queensland should still therefore have to defend itself against its liability to Mr Baker’s actions. [97] Most significantly with regard to the State of Queensland is the fact that it has not been able to plead a defence under the Limitations Act to its alleged breach of fiduciary duty. The factual matters which will have to be determined in respect of that claim are the same as those that would have to be traversed in respect of the claim for negligence. There is therefore no additional prejudice which will be suffered as the same difficulties present themselves to both parties in respect of the breach of fiduciary duty as the claims for negligence and assault. The claim for breach of fiduciary duty could not be said to be fanciful. The Supreme Court in Canada, for -- 27 of 29 -- 28 example, held in M(K) v M(H)41 that incest is both a tortious assault and a breach of fiduciary duty. [98] The High Court has held that the court cannot weigh the unfairness of precluding a justified cause of action against the risk of stale claims.42 The policy justification of protecting defendants from deeds in the past is, however, unpersuasive in such a case.43 As the Supreme Court of Canada observed:44 “Statutes of limitations have long been said to be statutes of repose; see Doe on the demise of Count Duroure v. Jones (1791), 4 T.R. 301, 100 E.R. 1031, and A’Court v. Cross (1825), 3 Bing. 329, 130 E.R. 540. The reasoning is straightforward enough. There comes a time, it is said, when a potential defendant should be secure in his reasonable expectation that he will not be held to account for ancient obligations. In my view this is a singularly unpersuasive ground for a strict application of the statute of limitations in this context. While there are instances where the public interest is served by granting repose to certain classes of defendants, for example the cost of professional services if practitioners are exposed to unlimited liability, there is absolutely no corresponding public benefit in protecting individuals who perpetrate incest from the consequences of their wrongful actions. The patent inequity of allowing these individuals to go on with their life without liability, while the victim continues to suffer the consequences, clearly militates against any guarantee of repose.” [99] The social mores of the times have changed. When Ms Carter’s cause of action accrued in the late 1970s, the social climate was not conducive to bringing a claim of this nature. As Sir Nicolas Browne-Wilkinson VC observed in Stubbings v Webb:45 “The question is whether, in 1975, the plaintiff acted reasonably in not then suing Mr Webb and Stephen Webb for the serious wrongs alleged to have been done to her. In my judgment it is important not to consider the question by reference to the social habits and conventions of 1991. Over recent years, for the first time civil actions have been brought by victims of adult rape against their assailants. As to actions against child abusers, this is apparently the first case in which the alleged victim has sought to sue her abusers. In the present climate and state of knowledge it would in my judgment be very difficult, if not impossible, for a plaintiff coming of age in the late 1980s to establish that she acted ‘reasonably’ in not starting proceedings alleging child abuse within three years of attaining her majority. But we are concerned with the reasonableness of the plaintiff’s behaviour in the period 1975 – 78. At that time civil actions based on sexual assaults 41 (supra) at 59, 68-69; see also the views of R Graycar and J Morgan expressed in “Disabling Citizenship: Civil Death for Women in the 1990s” (1995) 17 Adel L Rev 49 at 73; Marfording, (supra) at 228-229; Williams v Minister, Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497 at 510-511; but cf Williams v Minister, Aboriginal Land Rights Act 1983 & Anor (1999) 25 Fam LR 86 at [740]; Johnson v DOCS [1999] NSWSC 1156 at [120]-[136]. 42 Cf Brisbane South Regional Health Authority (supra) at 549; Osland v Osland 442 NW 2d 907 (ND 1989). 43 Hammer v Hammer (supra) at 27; cf Brisbane South Regional Health Authority (supra) at 551. 44 M(K) v M(H) (supra) 29. 45 (supra) at 212. -- 28 of 29 -- 29 were unknown in this country. In my judgment, it was accordingly reasonable for the plaintiff not to have considered the injuries done to her sufficiently serious to justify starting proceedings against her adoptive father and brother. In 1975 such proceedings were unthought of and it was therefore reasonable for her not to have started such proceedings.” See also the discussion by Byrne J in Tiernan v Tiernan.46 [100] It would be in the circumstances “plainly unjust”47 not to exercise the discretion in favour of the applicant. [101] The appellant has satisfied the requirements of s 31 of the Limitations Act and that the justice of the case requires the extension of time to commence an action after a limitation period has expired. The appeal should be allowed and the court should order that the time for commencement of an action by the plaintiff for personal injuries be extended to 27 July 1998. 46 (supra) at 3. 47 Australian Coal and Shale Employees’Federation v The Commonwealth (1953) 94 CLR 621 at 627; Brisbane South Regional Health Authority (supra) at 556. -- 29 of 29 --