Carter v The Sisters of Mercy of Rockhampton & Ors [2000] QSC 306

SUPREME COURT OF QUEENSLAND CITATION: Carter v The Sisters of Mercy of Rockhampton & Ors [2000] QSC 306 PARTIES: HELEN MAY CARTER (applicant/plaintiff) v THE CORPORATION OF THE SISTERS OF MERCY OF THE DIOCESE OF ROCKHAMPTON (respondent/first defendant) THE ROMAN CATHOLIC TRUST CORPORATION FOR THE DIOCESE OF ROCKHAMPTON (respondent/second defendant) STATE OF QUEENSLAND (respondent/third defendant) KEVIN LESLIE BAKER (respondent/fourth defendant) FILE NO/S: Toowoomba District Registry No 53 of 1998 Brisbane Registry No 7440 of 2000 DIVISION: Trial PROCEEDING: Civil DELIVERED ON: 8 September 2000 DELIVERED AT: Brisbane HEARING DATE: 31 August 2000 JUDGE: White J ORDER: Dismiss the application filed 16 November 1998 Dismiss the application filed 28 July 2000 CATCHWORDS: LIMITATION OF ACTIONS – Extension of time – mistreatment of applicant while child at an orphanage – wh material fact of a decisive character – delay - prejudice Limitation of Actions Act 1974, s29(2)(c), s30(a), s30(b), s31 The State Children Acts 1911-1955 Uniform Civil Procedure Rules, r304(2) Berg v Kruger Enterprises [1990] 2 Qd R 301 Brisbane South Regional Health Authority v Taylor (1996- 1997) 186 CLR 541 Do Carmo v Ford Excavations Proprietary Limited (1983- 1984) 154 CLR 234 Opacic v Patane [1997] 1 Qd R 84 -- 1 of 9 -- 2 Moriarty v The Sunbeam Corporation Limited [1988] 2 Qd R 325 Sudgen v Crawford [1989] 1 Qd R 683 COUNSEL: M Martin for the applicant R Hancock, solicitor for the first and second defendants R V Hanson QC with P Flanagan for the third defendant J Crowley QC for the fourth defendant SOLICITORS: Dean, Kath & Kohler for the applicant Deacons for the first and second defendant Crown Solicitor for the third defendant Tunns Lawyers as town agents for John Murray & Co for the fourth defendant [1] The applicant seeks an order that the period of limitation within which to commence proceedings for damages for personal injury against the third and fourth defendants be extended until 27 July 1998, the date of the issue of the writ of summons. She also seeks leave pursuant to rule 304(2) of the UCPR to discontinue her action against the first and second defendants with whom she has reached a settlement. The third defendant, the State of Queensland, has brought contribution proceedings against the first and second defendants and submits that it is therefore inappropriate to release those defendants from the proceedings while the contribution proceedings continue. [2] It is only the claim for damages for personal injury for the negligent breach of duty by the third defendant and the claim for damages for assault and trespass against the fourth defendant which are pleaded to be barred by the Limitation of Actions Act 1974. A claim for equitable compensation for breach of fiduciary duty against the third defendant does not arise for consideration. [3] The applicant was born on 21 March 1960. She ceased to be under a disability by virtue of her age on 23 March 1978 when she attained 18 years. The period of limitation for damages for personal injury expired on 23 March 1981. She was made a State child pursuant to The State Children Acts 1911-1955 on 5 June 1961. The applicant, with her two brothers and two sisters was placed in the Neerkol Orphanage (“the orphanage”) outside Rockhampton. Under the scheme of The State Children Acts private institutions were licensed by the Governor-in-Council to receive State children. The orphanage was one such institution. A private institution received financial support in respect of each State child under its care and, whilst the management and supervision of the institution was its responsibility, it was subject to ministerial overview and its accounts were audited by the auditor- general. -- 2 of 9 -- 3 [4] The applicant was transferred to St Vincent’s Home, Nudgee in February 1967 and returned to the orphanage in August 1968. She was admitted to “Warilda” Childrens’ Home on 31 July 1972. She was fostered and then admitted to Wolston Park Hospital on 21 January 1975 because of perceived mental problems. She was discharged from Wolston Park on 13 March 1976. The applicant deposes that when she left care she was on the streets with a boy named Jamie to whom she became pregnant. He was killed in a motor vehicle accident in 1977. Thereafter she drank alcohol to excess regularly. She deposes that she married at 19, had five children and is now separated (Dr Burkett states that the applicant bore seven children, one of whom died in infancy). The applicant has had very little employment mainly due, it would appear, to her very poor educational skills – difficulty with reading, writing and numbers which she attributes to the failure of the third defendant to ensure that she received an education commensurate with her abilities. [5] On the applicant’s allegations in her affidavit, her life at the orphanage from her earliest recollection as a little girl, was one of appalling cruelty, neglect and indifference perpetrated by some of the nuns and the lay staff. The applicant was large for her age and suffered from a serious stammer and very likely other speech impediments. The allegations of physical cruelty include savage beatings, burning with a metal rod and near drownings in the bath. The mental abuse included cruel teasing about her disability by the nuns and staff as well as the other children, being locked in dark confined places, being tied to a pole and generally being shunned and reviled. [6] The allegations against the fourth defendant, who was employed by the orphanage, are very grave. They include rape, assault and systematic sexual abuse of the applicant from about the age of five or six years which took place in the men’s living quarters and on the school bus which the fourth defendant drove for the orphanage. [7] The applicant alleges that the third defendant, being under a duty to do so, failed to maintain her health and safety and to ensure that she was properly educated and failed to have in place a proper system for ensuring that the abusive conduct accorded to her at the orphanage did not occur. The applicant makes a specific allegation against employees of the government department charged with administrating the Act. She deposes that on about 11 August 1968 she complained to two named senior employees when she was being returned, against her wishes, from St Vincent’s Home to the orphanage, of the cruelty of the nuns and the sexual abuse by the fourth defendant. The man responded, she alleges, by stopping the car in which they were travelling, slapping her face and telling her not to say such things about the nuns. He forced her to repeat her allegations to the head nun, now deceased, who then caned her on her bare bottom in front of the departmental employees. [8] The applicant deposes that the only schooling which she received whilst at the orphanage was about a year from 1971 to 1972 at the North Rockhampton State Opportunity School. A document which tends to support her allegations of neglect -- 3 of 9 -- 4 against the third defendant is a medical certificate signed by Dr J Bruce Gordon, medical officer with the State Children’s Department after an examination of the applicant on 9 April 1964 at the orphanage when she was just three years old: “I hereby certify that I have this day examined the State Child, HELEN CHOLLHAUG [the applicant], and find that she is destructive in her habits, a menace to the other children, and I recommend that she be sent to an institution for the mentally sick.” After the applicant was transferred to St Vincent’s Home in 1976 Dr M Lamb, a medical officer with the department took an interest in her welfare. She wrote to the department that the applicant was of normal intelligence, responding well to speech therapy and that her behaviour at St Vincent’s was far from bad. Dr Lamb suggested to the department that all might not be well at the orphanage with respect to the applicant and that she should visit it to investigate and discuss the matter with the nuns. Nothing further appears from the departmental records in the material for this application. But what is there tends to support the applicant’s action against the third defendant if it is accepted that the misconduct and neglect of the first and second defendants occurred. [9] The conduct giving rise to the allegations against each of the defendants occurred between about 1965 and 1972 when the applicant finally left the orphanage. The period allowed by s29(2)(c) of the Limitation of Actions Act (“the Act”) for actions for damages for personal injury is three years from the date that the person ceased to be under a disability, that is, 23 March 1981 when the plaintiff reached 21 years. The writ was not issued until 27 July 1998 some 17 years after the expiration of the limitation period and 26 years after the cessation of the conduct complained of but which allegedly commenced some 33 years prior to the issue of the writ. [10] The limitation period allowed by the Act will be extended if the applicant comes within the provisions of s 31 and, in the exercise of its discretion, the court concludes that a fair trial of the action can be had notwithstanding the delay. The onus rests applies on the applicant in respect of both matters once issues of prejudice have been raised. [11] It is a condition of the making of an order extending time that it appears to the court, among other things, 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, s 31(2)(a). The alleged material fact of a decisive nature, Dr Burkett’s report, did not come to the applicant’s attention until after the writ was issued, but that does not disentitle her to relief Opacic v Patane [1997] 1 Qd R 84 at 86-7 per Davies JA. The report was read by the applicant about 7 October 1998. Material facts include the extent of the personal injury and the extent to which the injury was caused by the tortious act or omission, s 30(a)(iv)(v). Those facts are of a decisive character only if a reasonable person knowing those facts would have taken appropriate advice and would regard those facts as showing that an action would have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of the action, s30(b). In this application -- 4 of 9 -- 5 those facts are the psychiatric, psychological and emotional injuries and that they were caused by the wrongful acts and omissions of the defendants. It is the acts or omissions that caused the alleged damage and not the legal consequences which constitute the material facts, Do Carmo v Ford Excavations Proprietary Limited (1983-1984) 154 CLR 234 at 244. [12] The applicant contends that it was not until she read a report from Dr Eileen Burkett, a psychiatrist, dated 29 September 1998 (received by the applicant’s solicitors on 7 October 1998) that she: “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 have 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.” The applicant deposes that she always harboured a hatred for the fourth defendant and the nuns who abused her but she did not ever consider that she was entitled to compensation. She says that she was reluctant to discuss her experiences but in early 1997 she became aware of other persons who alleged that they had suffered abuse at the orphanage. She then made a complaint to the police and subsequently, on 6 August 1997, consulted with her present solicitors about the criminal charges. Mr Kohler offered to investigate the possibility of a claim for compensatory damages. He carried out investigations concerning a civil suit from August 1997 to March 1998 and issued the writ in the action on 27 July 1998 on counsel’s advise and out of “an abundance of caution”. He then “had no idea about the plaintiff’s prospects of success and whether the difficulties the plaintiff experienced in her life since leaving the orphanage could be attributed to the abuse to which she complains”. [13] The problem, as I see it, for the applicant is that she was in possession of the necessary facts to commence an action against the defendants for negligence or assault from the time the limitation period commenced to run. Even if it be accepted that her life until she married at 19 was not such as to prompt her to take advice in respect of those facts, there is nothing in the material to suggest that she could not have done so in that long period before she finally took her complaints to the police at the beginning of 1997. The facts necessary to found an action for damages for assault and trespass to the person against the fourth defendant were all known to the applicant. She did not suppress them. On the contrary, she would have been advised, had she sought advice, that the damages would be likely to be considerable. [14] The applicant was also in possession of the facts necessary to found a worthwhile action against the third defendant. She knew she was a State child and that the department had control over her life and where she was placed. She recognised that responsibility when she made her complaint to the departmental officers in 1968. She was regularly seen by departmental doctors. It is not suggested that the -- 5 of 9 -- 6 applicant ought to have taken advice immediately she became 18, but she retained a lively awareness of the wrongs which had been done to her over the ensuing years. There is no suggestion that she was in an alcoholic stupor or suffering from depression to such an extent that she could not have sought appropriate advice. What Dr Burkett states is that the applicant’s speech problems were resolved, that she was able to read and write although she had difficulty spelling and that her arithmetic was adequate but that she had difficulty with multiplication. Dr Burkett’s primary diagnosis was alcohol abuse and dysthymia (depression). She added “Her history is characterised by a difficult work history, difficult interpersonal relationships and alcohol abuse and as well as at times depression and suicidal thoughts I believe would fit into a borderline personality traits. Her primary symptoms of alcohol abuse and dysthymia predominate. … I believe her background history, her family history of being at risk of alcohol abuse, her abusive experiences as a child both sexual, physical and verbal abuse would certainly undermine her self confidence. It would undermine her ability to trust others and I believe would have a major impact on her reaction to the world. She gives a history of violence towards others at a young age. It is difficult to know if this is in direct relation to her experiences of abuse and her own attempts to cope with this. Her alcohol abuse began at the age of 15 and has continued at times throughout the years… . 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 dyslexia or her stutter also made an impact on her ability to function… .. [she] would need supportive psychotherapy to help her to work through her experiences of the past particularly sexual, physical and verbal abuse.” [15] In Moriarty v The Sunbeam Corporation Limited [1988] 2 Qd R 325 Macrossan J, as he then was, said at 333 “In cases like the present, an applicant for extension discharges his onus by showing that he has learnt some new fact which bears upon the issue or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it. He must show that without the newly learnt fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests purse it. This is what the application of the test of decisiveness under s 30(b) comes down to: Taggart v The Workers’ Compensation Board of Queensland [1983] 2 Qd R 19, 23, 24 and Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, 251 per Deane J”. See also Sudgen v Crawford [1989] 1 Qd R 683 per Connolly J at 685 and Berg v Kruger Enterprises [1990] 2 Qd R 301 per Connolly J at 304-305. [16] The new fact goes to the extent of the personal injury, not to the existence of the cause of action and, appropriately advised, she would have brought the action on -- 6 of 9 -- 7 the facts already in her possession since, if successful, she would have been likely to obtain significant damages. There is another problem. Throughout her life, it would appear, since leaving care the applicant has received treatment from psychiatrists. Only after considerable difficulty has the third defendant been able to obtain one report from Ms S 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. Where it might be thought somewhat surprising that the applicant deposes that she did not link her depression and other problems to her treatment at the orphanage, it is necessary, to the extent possible, to place all relevant material before the court. This conclusion means that the applicant has failed to satisfy the provisions of the Act so as to entitle her to an extension of time in which to commence her actions for negligence and assault. [17] The third and fourth defendants have also raised in their material the considerable prejudice which they submit they will suffer as a consequence of the long delay in commencing proceedings. The approach a court should take once prejudice has been raised is to be found in the judgements of the High Court in Brisbane South Regional Health Authority v Taylor (1996 - 1997) 186 CLR 541. Mc Hugh J stated at 555: “Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff’s rights of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff’s action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff’s lost right should not be revived than that the defendant should have a spent liability reimposed upon it. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action.” Dawson J at 544 stated: “The onus of satisfying the court that the discretion should be exercised in favour of an applicant lies on the applicant. To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant. I agree with McHugh J that, once the legislature has selected a limitation -- 7 of 9 -- 8 period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation.” [18] The third defendant is in a difficult position. While both of the departmental employees referred to in the account of the 1968 incident are alive, neither has any recollection of the applicant, but deny any such event occurred. The head nun is now deceased. Many of the third defendant’s records concerning the applicant are available, but some may have been destroyed in a building fire in Rockhampton recently. Some original files relating to the applicant have been lost in a transfer associated with criminal proceedings against the fourth defendant in Rockhampton although copies are more than likely in the possession of the applicant’s solicitors. [19] Although the applicant has reached a settlement with the first and second defendants and they have made general admissions of wrongdoing in a circular letter to former residents of the orphanage, any admissions are not admissible against the other defendants and the third defendant does not concede that the wrongful acts alleged against the nuns and the staff at the orphanage occurred. As mentioned, the head nun is now deceased, as is Sister Fintan against whom the applicant makes accusations of cruelty. Sister Vincent, whom she also alleges was cruel to her, is 97. She has made a statement in which she says, inter alia , that she has no recollection of the applicant. The applicant makes allegations against a staff member, Eileen Wollschlager, whom the third defendant, despite considerable effort, has been unable to trace. Numbers of the doctors mentioned in the records as seeing or treating the applicant are dead. Others, if located, would be very old. [20] The affidavits filed on behalf of the third defendant show that many of the senior officers in the department who would have been likely to have dealt with the applicant and the orphanage are dead. Even if located, all of the former employees would be retired and are unlikely to have any or much recollection of the applicant. It is clear that this state of affairs means that the third defendant cannot fairly defend itself. [21] I would not come to the same conclusion about the fourth defendant. His solicitor deposes that some of the men who worked at the orphanage during the period when the applicant says that he assaulted her and who would give evidence that they did not see the applicant waiting on the verandah for the fourth defendant as she deposes, are dead or cannot be found. Their evidence is unlikely to advance the fourth defendant’s defence, particularly in light of the applicant’s further affidavit that she was usually in the dark on the verandah and did not stay long. [22] The fourth defendant stood trial in respect of some of the allegations made by the applicant in 1999 (and has been found not guilty). There is one further criminal trial. The applicant’s evidence is detailed and relates to incidents between the two of them alone. The fourth defendant has located one witness who was prepared to give evidence that when she travelled on the school bus nothing untoward occurred -- 8 of 9 -- 9 between the fourth defendant and the applicant. I would not dismiss the application to extend time in respect of the fourth defendant on the discretionary ground. [23] Finally, I accept the third defendant’s submissions that the applicant ought not be given leave to discontinue the action against the first and second defendants while the contribution proceedings remain. [24] The orders are: 1. Dismiss the application to extend time filed 16 November 1998. 2. Dismiss the application to discontinue the action against the first and second defendants filed 28 July 2000. I will hear submissions as to costs . -- 9 of 9 --