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AB v State of Queensland[2022] QCA 109

AB v State of Queensland[2022] QCA 109

SUPREME COURT OF QUEENSLAND

CITATION:

AB v State of Queensland & Anor [2022] QCA 109

PARTIES:

AB

(appellant)

v

STATE OF QUEENSLAND

(first respondent)

LIFE WITHOUT BARRIERS

ACN 101 252 171

(second respondent)

FILE NO/S:

Appeal No 9450 of 2021

DC No 585 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane – [2021] QDC 171 (Porter QC DCJ)

DELIVERED ON:

17 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

22 February 2022

JUDGES:

Fraser and McMurdo and Mullins JJA

ORDERS:

  1. Grant leave to appeal.
  2. Allow the appeal.
  3. Set aside the orders made in the District Court on 22 July 2021.
  4. The period of limitation for the appellant’s claim against the first and second respondents, for damages for personal injuries, be extended to 16 March 2021 pursuant to s 31 of the Limitation of Actions Act 1974 (Qld).
  5. The costs of each party of the application in the District Court be that party’s costs in the proceeding in that Court.
  6. The respondents pay the appellant’s costs of the proceeding in this Court.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – KNOWLEDGE – GENERALLY – where the first and second respondents administered a foster care scheme – where in 2006 the appellant became a foster carer in the scheme – where a boy XY was placed in the appellant’s care by the respondents – where XY sexually abused the appellant’s biological daughter – where the psychological shock of that incident precipitated a generalised anxiety disorder, a secondary major depressive disorder, and an adjustment disorder with features of post traumatic stress disorder in the appellant – where on 12 March 2021 the appellant initiated an action in the District Court claiming damages for personal injury and consequential loss – where the action was brought outside of the three-year limitation period for personal injuries actions in s 11 of the Limitation of Actions Act 1974 (Qld) – where s 31 of the Limitation of Actions Act 1974 (Qld) provides that a court may extend the limitation period for an action when 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 limitation period – where prior to March 2020 the appellant believed the respondents knew or ought to have known of the risk posed by XY – where the appellant’s belief was not the result of her having any evidence – where on or about 16 March 2020 the appellant became aware of evidence that proved the actual knowledge of the respondents of the risk posed by XY – whether the appellant’s belief in the absence of evidence proving actual knowledge amounted to a material fact of a decisive nature – whether it is relevant that, had the appellant pleaded her case in the absence of evidence of actual knowledge, the appellant might have obtained admissions from the respondents – whether the limitation period should be extended

Limitation of Actions Act 1974 (Qld), s 11, s 30, s 31

Personal Injuries Proceedings Act 2002 (Qld), s 43

Uniform Civil Procedure Rules 1999 (Qld)

Greenhalgh v Bacas Training Limited & Ors [2007] QCA 327, applied

NF v State of Queensland [2005] QCA 110, applied

Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431; [1993] QCA 114, applied

COUNSEL:

B D Dooley SC, with M Forbes, for the appellant

G W Diehm QC, with M G Zerner, for the first respondent

R M Treston QC, with G C O'Driscoll, for the second respondent

SOLICITORS:

Shine Lawyers for the appellant

Crown Law for the first respondent

Colin Biggers & Paisley Lawyers for the second respondent

  1. [1]
    FRASER JA:  I agree with the reasons for judgment of McMurdo JA and the order proposed by his Honour.
  2. [2]
    McMURDO JA:  In 2006, the appellant was a single mother who decided to become a foster carer.  To that end, she underwent some training from Life Without Barriers (LWB) which conducted a business described as a fostering agency.  She became an approved foster carer in April 2006, and in the following month, a 17 year old boy whom I will call XY was placed in her house, where she lived with her four year old daughter, whom I will call CD.
  3. [3]
    At the time, the appellant was told by LWB that XY’s previous placement was unsuccessful, and that he needed to be placed elsewhere as a matter of emergency.  She was not told why the previous placement had been unsuccessful.
  4. [4]
    Almost immediately XY’s presence in the appellant’s house became problematic.  He was engaging in self-harming behaviour, and more relevantly for the present case, the appellant observed him telling her daughter that he loved her, and attempting to hug her and have her tell him that she loved him.
  5. [5]
    Over the following months, XY’s behaviour continued to be troublesome.  The appellant was told by another child, who would occasionally stay in the appellant’s house as a break for that child’s foster carer, that XY had talked to her in a sexual way.
  6. [6]
    In August 2006, the appellant’s mother came to her house to look after CD in her absence for the afternoon.  XY was then at home.  On the following day, her mother told her that when she was at the appellant’s house, she had seen CD sitting on the boy’s lap and that they had a blanket over them.  The mother said that she believed that she saw movement under the blanket that appeared to be around CD’s pelvic area.  She told the appellant that he also had his arms around CD.
  7. [7]
    A consequent conversation with CD confirmed that XY had been sexually abusing CD.  The appellant immediately contacted the Care Co-ordinator of LWB and requested that XY be placed elsewhere.
  8. [8]
    A few days later, the appellant took CD to a police station and reported the abuse.  Subsequently, she was told by the police that there was insufficient evidence for XY to be charged with an offence.  In the meantime, CD disclosed more detail of incidents of abuse which XY had perpetrated against her.
  9. [9]
    In consequence, the appellant’s mental health declined.  She became very distressed and emotional, and expressed suicidal thoughts.  She has been diagnosed by psychiatrists as suffering from a generalised Anxiety Disorder, a secondary Major Depressive Disorder and an Adjustment Disorder with features of Post Traumatic Stress Disorder, as a result of a significant psychological shock from the abuse of her daughter.  In 2020, her prognosis was described by a psychiatrist as poor, given that she has a long-standing anxiety and depressive condition which has been present since 2006.  Her condition is also said to be triggered by her daughter’s own psychological condition and symptoms.
  10. [10]
    On 12 March 2021, she filed a claim and statement of claim in the District Court, claiming damages for personal injury and consequential loss against the present respondents, LWB and the State of Queensland which administered the foster parent scheme.  Her case is that:
  • prior to being placed in the appellant’s house, XY had engaged in sexual misbehaviour;
  • the respondents knew or ought to have known of that behaviour;
  • the respondents ought to have informed the appellant of that behaviour;
  • in particular, LWB failed to disclose to her complaints which had been made to the police of alleged sexual abuse by XY of his sister; and
  • as a result of the respondents’ negligence, the appellant accepted the placement, creating an unacceptable risk which eventuated.
  1. [11]
    Because the three year limitation period for this proceeding had long expired, a judge granted leave to commence the proceeding pursuant to s 43 of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA), so that the proceeding could be commenced without completion of all of the usual pre-litigation steps.  The judge ordered the appellant to apply for an extension of time pursuant to s 31 of the Limitation of Actions Act 1974 (Qld).
  2. [12]
    That application was heard and decided by a judgment, apparently delivered on the same day, by Porter QC DCJ, who dismissed the application with costs.  This is an application for leave to appeal against that judgment.
  3. [13]
    For the reasons that follow, the application ought to have been allowed, upon the basis of the appellant’s discovery only, on 16 March 2020, of evidence from which it could be proved that the respondents knew of XY’s history of misconduct when they placed, or allowed to be placed, XY in the appellant’s care.

The Limitation of Actions Act

  1. [14]
    Section 31 applies to actions for negligence, trespass, nuisance or breach of duty where the damages claimed by the plaintiff consist of or include damages in respect of personal injury.  Section 31(2) provides a power to extend the period of limitation as follows:

“(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—

  1. (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
  1. (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.”

  1. [15]
    Section 30 explains and defines the meaning of “a material fact” and “a material fact of a decisive character”.  It provides:

“30 Interpretation

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

  1. (a)
    the material facts relating to a right of action include the following—
  1. (i)
    the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
  1. (ii)
    the identity of the person against whom the right of action lies;
  1. (iii)
    the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
  1. (iv)
    the nature and extent of the personal injury so caused;
  1. (v)
    the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;
  1. (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—
  1. (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
  1. (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;
  1. (c)
    a fact is not within the means of knowledge of a person at a particular time if, but only if—
  1. (i)
    the person does not know the fact at that time; and
  1. (ii)
    as far as the fact is able to be found out by the person—the person has taken all reasonable steps to find out the fact before that time.
  1. (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.”

  1. [16]
    It is not in question that the fact of the respondents’ awareness of previous sexual misbehaviour by XY constitutes a material fact relating to the appellant’s rights of action.  However it is strongly disputed that this was a material fact of a decisive character.  The respondents argue that the appellant’s case could be proved by showing no more than they ought to have known of the possibility of that conduct.  It is also argued that the fact of the respondents’ awareness of his behaviour was already within the means of knowledge of the appellant from documents obtained by her previous solicitors in 2007.
  2. [17]
    In this context, the decisive character of a material fact was explained by Macrossan CJ in Wood v Glaxo Australia Pty Ltd:[1]

“The body of evidence which a plaintiff collects, or … his assemblage of “material facts”, will only constitute a “decisive” collection when an appropriately advised reasonable man in his position is possessed or would, if he had enquired in appropriate fashion, be possessed of what he would regard as reasonable and worthwhile litigation prospects. The policy detectable in this legislation does not suggest that a potential plaintiff with the limitation period running against him must necessarily always commence his proceedings when he has no more than a hint of the existence of a necessary link in his chain of proof but, of course, if being at that point he delays he will do so at his peril because he will only subsequently save himself if he can persuade a judge that he did not know enough or would not, even if he had undertaken appropriate enquiries, have known enough to justify commencing proceedings at an earlier time.”

  1. [18]
    Citing that passage in Greenhalgh v Bacas Training Limited & Ors,[2] Keane JA (with whom Cullinane and Lyons JJ agreed) added that whether an action for damages is worthwhile is an assessment which must be made having regard to the expense and risks of litigation.[3]
  2. [19]
    As to s 30(1)(c), in NF v State of Queensland,[4] Keane JA (with whom Williams JA and Holmes J agreed) said:

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

(Emphasis added, footnotes omitted.)

Events prior to 16 March 2020

  1. [20]
    The appellant went to a support group for people with difficulties as a result of sexual abuse, and upon advice which she received there, she went to solicitors.  In early 2007, she consulted Nicol Robinson Halletts for advice, not as to her own position, but for a possible proceeding to be brought on behalf of CD.
  2. [21]
    By that time, the appellant had discovered, when informed by someone from LWB soon after XY was taken out of her care, that there had been an allegation that XY had previously sexually abused his sister.  The primary judge considered that there was “no doubt” that by then the appellant “genuinely believed” (and still believed) that LWB had known about that allegation involving XY’s sister when placing the boy in her care.[5]  The judge considered that this was evident from a notice of claim prepared by Nicol Robinson Halletts under the pre-litigation provisions of PIPA and signed by the appellant in October 2007.  In that notice, it was said that the appellant believed that LWB had “caused the incident” because of a series of circumstances which included the (alleged) fact that LWB “knew or ought to have known of [XY’s] past behaviours.”  His Honour inferred that “[t]hese past behaviours … [meant the] past alleged sexual abuse by XY of his sister.”[6]
  3. [22]
    After the notice of claim had been delivered to, and responses had been received (neither of which admitted the presently relevant allegation), Nicol Robinson Halletts obtained a report from a psychiatrist who had interviewed the appellant and her daughter.  Again, this was obtained for a possible proceeding on the daughter’s behalf, rather than a claim by the appellant.  The report was not at all encouraging.  The psychiatrist’s opinions reported that CD had not related any conduct which was of a sexual nature and that the appellant was “a difficult historian who may have some cognitive deficits”.  Further, the psychiatrist considered that CD’s account to her mother may have been affected by “tainting”.
  4. [23]
    Those opinions of the psychiatrist are relevant here to explain why the solicitors did not progress the proposed claim by the daughter.  In April 2011, Nicol Robinson Halletts wrote to the appellant confirming their previous advice that there were not favourable prospects for a claim by the daughter, “based on both the current evidence and counsel’s advice on prospects.”
  5. [24]
    By the time that the solicitors ceased to act for the appellant in June 2011, they had obtained some material under the freedom of information laws from the State.  His Honour discussed that material as containing, in particular, an internal note of 28 March 2007 that XY had been removed from his mother’s house for allegedly touching his sister, for which he had been taken to the police.[7]  His Honour said:

[32] … The FOI material revealed, in broad terms, that the Department of Children and Young People had been aware of the issues after the complaint was first made in September 2006 and had made various enquiries about it. …

[33] That material showed discussions in September, October and December 2006, and January 2007 which, in broad terms, indicate some awareness at Life Without Barriers of the potential for previous offending by the young man. I do not place a great deal of weight on those...”

  1. [25]
    The primary judge referred to other material which was relevant to the appellant’s state of mind about XY’s history, including notes by a GP whom the appellant had consulted and which his Honour thought were “more compelling”.  They recorded that the appellant told her GP, in March 2007, that XY had been charged for abusing his sister.  That was certainly evidence that by that time, the appellant knew of at least that part of XY’s previous history of sexual misconduct.  As I will discuss, however, that fact, namely her knowledge of XY’s alleged assault of his sister, was admitted in her evidence at the hearing before his Honour.  The appellant’s knowledge that at the relevant time the respondents were aware of that conduct was another thing.
  2. [26]
    In 2019, the appellant began to investigate the possibility of making her own claim, and she went to other solicitors.  A notice of claim, signed by her and dated 26 August 2019, was delivered, in which the appellant said:

“The claimant has been made aware that [XY] had a previous history of sexual and/or other violence prior to his placement with the claimant and her family. [XY’s] history was known or ought to have been known by Life Without Barriers and the State of Queensland.  Despite this knowledge, Life Without Barriers and the State of Queensland did not act promptly in notifying the claimant of the risk of harm or take steps to protect the claimant from the risk of harm.”

The reports disclosed in 2020

  1. [27]
    It was then by the process of disclosure under the PIPA that what the appellant says was the material fact (or facts) of a decisive character came within her means of knowledge.  That information was within reports of a Ms Knox and a Ms Wemyss, which were produced to the appellant’s solicitors on or about 16 March.
  2. [28]
    The report by Ms Knox is dated 20 November 2006 and is entitled “External Review: Of Matters Relating to the Actions Taken, and Decisions Made by Life Without Barriers’ Staff in Response to an Allegation of Sexual Abuse of a Carer’s Child.”  The report recorded her terms of reference as including the ascertainment of the circumstances surrounding the placement of XY with the appellant and of any factors that may have contributed to harm being caused to her child.  They also included a consideration of the responsibilities of the Department of Child Safety and LWB in relation to the placement.
  3. [29]
    The findings by Ms Knox included the following:[8]

“[The appellant’s] uncertainty about whether or not she was able to care for a young person with sexualized behaviour was documented … Although she had some foster-carer experience with a self-placed young person in care, she was relatively new to the role of carer. …

[XY] was originally removed from his natural family due to ongoing family conflict, long-term dysfunction, scapegoating by his parents, in particular, his father, and minor concerns related to sexualized behaviour with his sister. The sexualized behaviour was minimized because ‘there was little substance to these concerns’ as his sister was often reporting things to get her brother into trouble (case handover notes provided to Sandra Smith by Suzanne Utai [both of LWB] … This information provided to Sandra Smith would be found to be in error.

In fact, [XY] had a history of repeated sexualized behaviour since 2000 when sexual acting-out behaviour at school and aggressive verbalizations using the word ‘rape’ were first reported … In 2001, there was a further incident with inappropriate touching of his sister after which DCS put him on an order. A further incident occurred on May 11, 2005 involving physical aggression towards his sister. An investigation was conducted at this time by Inala JAB and resulted in [XY] voluntarily leaving home on the evening of the incident. He was placed with [another] carer … The following day, 12 May, 2005, [XY] was interviewed by [police] regarding the physical aggression and also about possible inappropriate touching of his sister … No charges were laid but [XY] was to attend a Youth Justice Conference.

… LWB was involved with early intervention with [XY] around 2001 … but … both organizations [LWB and DCS] underwent a change in personnel around this time.

When [XY’s] placement with [the other carer] broke down after 12 months… because [XY] was not given age appropriate choices or independence, a decision was made to match [XY] with [the appellant].

Sandra Smith (correspondence dated 3 October, 2006; p.1) acknowledged that ‘no consideration was given at the time to the earlier behaviour with his sibling as it was not identified as a concern associated with [XY], rather his aggression was highlighted as the primary issue’ by Suzanne Utai in her case handover notes to Sandra …’

The decision to place [XY] with [the appellant] and her family was flawed from the outset. First, a young person with a history of sexualized behaviour was matched with a carer who expressed uncertainty about her own willingness to care for a young person with this particular characteristic. Second, the carer expressed concern about the vulnerable age of her daughter and declined placements involving ‘extremely challenging behaviour’. Third, the carer was not informed that [XY] might exhibit sexualized behaviour providing her with an opportunity to refuse to care for [XY] (Foster Carer Agreement).

The flawed decision was based on a chain of information fraught with error at the systems-level. No information system was available to staff to automatically alert them to the existence of serious behaviour problems such as notifiable sexualized behaviour; nor was a system available that allowed episodes to be trended over time so that recurrent episodes might alert staff that a problem has become serious. Individual staff members were able to dismiss the severity of the behaviour problem and define and/or minimize it based solely on his/her perceptions; information was presumed complete when it was not necessarily so; and staff handovers were reliant on the integrity of the information provided by the departing staff member.”

  1. [30]
    Ms Wemyss signed her report, dated September 2007, as the Senior Project Officer at the National Office of LWB.  It was described as a review of concerns in relation to the placement of XY with the appellant.  Ms Wemyss, like Ms Knox, reported that Susan Utai had knowledge of concerns in relation to [XY’s] behaviour, which Ms Wemyss said comprised “both sexually and non-sexually inappropriate behaviour”, but that Ms Utai had “minimised these concerns and did not adequately report them to her line manager (Sandra Smith)”.  She reported that another LWB employee also “knew some information about [XY’s] potentially sexually inappropriate behaviour, but minimised these concerns [and that] she was not consulted in regard to the change of placement for [XY] … to [the appellant] …”.[9]  Ms Wemyss wrote that LWB maintained poor written records throughout this period and that the Department of Child Safety “did not support the placement as required (did not visit [XY] nor participate in care planning meetings regularly); they placed [XY] back home despite their apparent concerns for his sister’s safety; and they did not formally advise LWB of the alleged incident of 2000 and 2001.”[10]

The judge’s consideration of the 2020 reports

  1. [31]
    The primary judge noted the references in these reports to “a history of repeated sexualized behaviour since 2000, when sexual acting-out behaviour at school and aggressive verbalizations were used”, adding that “there were allegations about not just inappropriate touching of his sister, but of physical aggression towards her.”[11]  His Honour said that “It is accepted by the respondents that, assuming (as I do) there is evidence to make good the history of repeated sexualised behaviour since 2000, [the appellant] had no knowledge and, given my findings, that was not within her means of knowledge.”[12]
  2. [32]
    His Honour considered whether these reports, and thereby the information within them, were procurable, in 2007, by taking further steps under the earlier PIPA process.  He inferred that had the PIPA process on the first occasion “pressed ahead with the same vigour” as was employed in the second process, these reports would have been produced then.[13]  However, his Honour was not persuaded that the reports were “within her means of knowledge” before they were obtained by her new solicitors in 2020,[14] considering that the appellant was not sophisticated in legal matters and would have left the case in the hands of her then solicitors.  He said that it would be expecting too much of a person with her characteristics to have actively pressed her then solicitors to address issues which had been raised in the first notice of claim, in circumstances where the solicitors had dropped the case, not because of inaction by the appellant, but because of their view of the lack of prospects.[15]  That reasoning is not challenged.
  3. [33]
    The primary judge found that the reports did not contain material which constituted facts of a decisive character.  He accepted that the material within the reports would be useful in prosecuting the appellant’s pleaded case.[16]  His Honour said that the real question was whether that material “changed a case which, without it, was not worthwhile or was not reasonable to bring, properly advised, into a case which was worthwhile and was reasonable to bring.”[17]  He observed that this was “not a case where nothing was known that could have sustained credible allegations of breach”, which was clear from the way in which the breach of duty was articulated in the two notices of claim.[18]  His Honour then said that so much was clear from the combination of what he described as two pieces of key information:[19]

“(a) First, [the appellant] knew, soon after the young man left her accommodation, that there had been allegations of sexual misconduct against the sister, and that at least the second respondent knew about it; and

  1. (b)
    Second, it was a matter of record that she was equivocal about having a foster child who had any such history, did not have the training for handling any such child and had a household where such a person (even in a context where they were only allegations) was clearly an extremely inappropriate choice, particularly where she was not told about it and given the opportunity to make her own judgment.”

With one exception, his Honour’s statements of those “pieces of key information” were correct.  However, as I am about to discuss, it was far from clear that the appellant had known earlier of LWB’s awareness of the allegations.

  1. [34]
    The primary judge accepted that “the matters disclosed in the two reports” were things which “would certainly have been helpful to litigation”, but said that there was a case which could have been pleaded without it.[20]  He said:[21]

“… I think there was more than adequate evidence to plead a case, and if that had been done with skill in light of the compulsory pleading requirements of Rule 166 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), I think, first of all, an admission would have been obtained that Life Without Barriers and the State of Queensland knew of the allegations of sexual abuse, and secondly, an admission would have been obtained that they did not tell [the appellant] about it, and so on and so forth.”

  1. [35]
    The judge then referred to another submission, advanced by counsel for LWB, that there was critical information within the FOI material which the appellant’s previous solicitors had obtained.  Within six pages of what was described[22] as part of records of the Department of Child Safety provided to the appellant’s solicitors and containing a redacted file from the Commission of Children and Young People and Child Guardian, was this passage:

“…Resp[o]nse received from Team Leader indicates that LWB was aware of the young person’s sexualised behaviours, and the risk of placement with a LWB carer that had a young child, that was subsequently sexually abused. - It appears that LWB in combination with the DCS have been negligent in conveying this information to the carer, and neither party appear to want to accept some responsibility for this harm occurring. - It is vital that LWB continue to support the LWB carer through the provision of counselling etc…”

  1. [36]
    The judge considered that this material “would plainly be a sufficient basis to plead an allegation in those terms”, and said that “that statement goes beyond merely the allegation of abuse of the sister and refers broadly to sexualised behaviours ….”[23]  He commented that “it would not take much cunning in the pleading to have turned that into a disputed issue and to obtain all sorts of disclosure about it.”[24]  In that way he related this to his reasoning that there was more than adequate evidence to plead a case which would then have been admitted by the respondents.

The appellant’s evidence

  1. [37]
    The appellant’s evidence in chief was by affidavit.  Most relevantly, her evidence was as follows:

“75. Until my solicitor received these reports I did not know that prior to the relevant period each of the Respondents knew that [XY]:

  1. (a)
    Had a history of, had engaged in, or was reported to have engaged in repeated sexualised behaviour with other children, including his biological sister;
  1. (b)
    Had, since about the year 2000, a history of sexualised behaviour, including sexual acting out behaviour at school and aggressive verbalisations;
  1. (c)
    Required sexual abuse counselling (“collectively referred to as “[XY’s] history”).”

  1. I am informed by my solicitors and verily believe that in a letter to the First Respondent's solicitors dated 30 September 2019 it was asserted that a material fact of a decisive character, namely, that the actions of [XY] (against [CD]) were not isolated incidents and that [XY] had perpetrated earlier sexual abuse upon his sibling was not within my means of knowledge until 1 July 2019. This assertion was incorrect. To the best of my recollection and belief shortly after [XY] was taken out of my care I was informed by Sandra Smith, of the Second Respondent, of an allegation that [XY] had previously sexually abused his sister. The material fact of a decisive character that was asserted to in the letter of 30 September 2019 was based on a conversation I had with [another person] on Facebook Messenger on or about 1 July 2019. [She] told me, and I verily believe, that [XY] had previously behaved in a similar manner towards his sister. Exhibited to this Affidavit and marked “RB19” is a true and correct copy of the correspondence to the First Respondent dated 30 September 2019.
  2. I am informed by my solicitors and verily believe that in a letter to the Second Respondent's solicitors dated 10 October 2019 it was asserted that a material fact of a decisive character, namely, that the actions of [XY] (against [CD]) were not isolated incidents and that [XY] had perpetrated earlier sexual abuse upon his sibling was not within my means of knowledge until 1 July 2019. As I have stated this assertion was incorrect. I am informed by my solicitors and verily believe that the letter also asserted this information was, at the time, in the knowledge or possession of the Respondent's and not advised to me at any time before, during or after the placement of [XY]. Despite this assertion as at 1 July 2019 I was not aware that this information was in the knowledge or possession of the Respondents before the placement of [XY] with me. Before the Respondent's made disclosure on 16 March 2020, whilst I suspected that the Respondents were aware of [XY’s] history, I was not aware that they had actual knowledge of [XY’s] history and failed to disclose it to me. Exhibited to this Affidavit and marked “RB20” is a true and correct copy of the correspondence to the Second Respondent dated 10 October 2019. Exhibited to this Affidavit and marked “RB21” is a true and correct copy of the printout of the Facebook Messenger message I received from …”.
  1. [38]
    The relevant cross-examination of the appellant was as follows:

“That you went to see the solicitors to prosecute the claim on behalf of your daughter, that was your belief: that he never should have been placed with you?---Yes.

And that the department knew or ought to have known of his prior sexualised behaviours?---I didn’t know, really, what they knew.

But at the time that you executed your claim in 2007, you believed that the department knew or ought to have known of his prior sexualised behaviours?---If a child – I asked – when he was placed in my house, I asked Suzanne, because I had only recently done training, you know, like, months before. And the one big question was, “Was there any behaviour or sexual behaviour that I should know about this child coming into my house. Is there anything?”. They – there was nothing given.

And they didn’t relay it to you; that was part of your claim. It is part of your claim today?---They didn’t give me any documents; they didn’t talk to me about it. There was no offer of, yes, there is something; no, there isn’t. No offer.

HIS HONOUR: But Mr O'Driscoll’s question was that at the time you executed your claim, you believed that they knew or ought to have known have about [XY’s] prior sexualised behaviours. So his question is: at the time you executed that claim – what was it, March 2007?

MR O'DRISCOLL: Seven. Yes, your Honour.

HIS HONOUR: That you believed that the department knew or ought to have known of [XY’s] prior sexualised behaviours. Now, was that your belief at that time?---That was my belief in not really having evidence, but yes. That’s my belief.

I put to you that you believe that Life Without Barriers knew or ought to have known [XY’s] past behaviours. You believe that to be true. That’s why it’s contained in your notice of claim; that’s correct, isn’t it?---Yes.

And you believe that he shouldn’t have been placed at the home with you; you believe that to be correct?---Yes.

And you believe to be correct that they should have informed you of his prior sexualised behaviour?---If – yes.

And you knew, in fact, that he had a prior history of sexual and other violence, didn’t you?---I was not aware of that. I had suspicions.

Okay. But your aware, at that stage, it was - - -?---I was aware due to my daughter.

But you were aware that the department was aware, as you’ve claimed there, that they were aware that he had prior knowledge of sexual abuse, weren’t you?---I wasn’t aware of what they had but I was aware afterwards.

And I put to you that that’s not correct. You were, in fact, aware or you discussed previously?---Sorry?

I put to you that you were, in fact, aware of other issues that you had been relayed to at the time of the execution - - -?---When I put - - -

- - - of this document?--- - - - this down - - -

Yes?--- - - - on 2019?

Yes?---Yes.

Yes?---Only around that time, yes. I had no evidence being truth.

But as you’ve stated:

The claimant

being you - - -?---Yes.

Continuing: - - -

has been made aware that [XY] had a previous history of sexual and/or other violence prior to his placement.

So, at the time of the execution of this document, you were aware, because you’ve sworn to it, that he had a previous history of sexualised behaviour?---Sexual - - -

Of sexual and/or other violence prior to his placement with you?---Only after.

No, at the time of this document.

HIS HONOUR: So, only after what time?---When the document and once I spoke on the phone, I was talking to Diane on the phone and she had said – that is what urged me to come forward. She had said to me, “Do you know this” – so my suspicions of yes, there was a record I didn’t see. I have suspicions to his behaviour.”

  1. [39]
    As noted earlier, the primary judge found that the appellant knew, soon after XY left her house, that (a) there had been allegations of sexual misconduct by him against his sister and that (b) LWB knew about that.[25]  Whatever the appellant had said at an earlier time, her affidavit unambiguously admitted that she knew, soon after XY had left, that there had been allegations of sexual misconduct by XY against his sister.
  2. [40]
    Her affidavit evidence was that she held a suspicion that the respondents were aware of this history when the boy was placed with her, but that she had no actual knowledge of that awareness by the respondents until the production of the two reports in March 2020.
  3. [41]
    At some places in her cross-examination, she appeared to agree that she knew of the respondents’ awareness of those allegations.  At other places, she continued to say that she had no more than a suspicion that the respondents had that awareness.  Notably, that was how the relevant part of the cross-examination was concluded, and even in the parts where she appeared to agree that she knew of that awareness, she made it clear that her state of mind was not the result of her having any evidence.
  4. [42]
    It may be accepted that the appellant’s state of mind in this respect was a belief, rather than a suspicion.  In George v Rockett,[26] it was said that:

“Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.”

However there was no foundation in the evidence for a finding that she knew of the relevant fact, namely, the respondents’ awareness of XY’s history when he was placed in her household.

Consideration of the appellant’s case

  1. [43]
    Consequently, amongst the “pieces of key information” to which the judge referred, was a finding of fact that was not open.  A difference between a belief and a knowledge of this material fact is important in this case, when the appellant’s cause of action against each respondent is considered against the terms of ss 30 and 31.
  2. [44]
    It is true that the appellant’s cause of action has been based upon an allegation that the respondents knew or ought to have known of XY’s behaviour.  If the appellant failed to prove the respondents’ knowledge that alternative case could not be described as bound to fail, on the presently available evidence at least.  But nor would it be a case with strong prospects.
  3. [45]
    However with the evidence obtained in March 2020, the appellant became able to prove an actual knowledge by the respondents of XY’s behaviour and that case has apparently strong prospects.
  4. [46]
    In the terms of s 30(1)(c)(i), the appellant did not know the fact that the respondents had that awareness of XY’s conduct, until the two reports were received on or about 16 March 2020.
  5. [47]
    The further question, under s 30(1)(c), is whether this was a fact which the appellant could have found out, by taking “all reasonable steps to find out the fact before that time.”  On the judge’s reasoning, before “that time” the appellant had sufficient information to enable her to plead her causes of action, and that had that been done “with skill”, admissions would have been forthcoming that the respondents knew of the allegations of sexual abuse.[27]  In my respectful opinion, however, that reasoning involves the employment of hindsight.  The two reports having emerged, the likelihood of the appellant obtaining those admissions would appear to be high.  But it was a different thing looking at the circumstances before March 2020.  Had she then pleaded her case, she would have been required to plead any fact from which the alleged knowledge of the respondents was to be inferred.[28]  In the circumstances prior to 2020, that would have been at the least a formidable problem for the pleader.  The assumption that admissions would have been forthcoming should not have been made.
  6. [48]
    Further, under the terms of s 30, the relevant hypothesis is one which addresses the context of a person who has not commenced an action.  In that context, what are the facts which a reasonable person would then know, having taken all reasonable steps to find out the fact by that time?  The judge’s analysis by reference to the pleading rules may be relevant to the further question, which I am about to discuss, of whether this unknown fact was of a decisive character.  But on the present question, namely whether the fact was not within the appellant’s means of knowledge before March 2020, the possibility that she would come to know that fact by commencing and prosecuting a claim is not relevant under s 30(1)(c)(ii).
  7. [49]
    It is submitted for the respondents that the fact was within her means of knowledge, because it was revealed by some of the material which her previous solicitors had obtained under the FOI process.  The appellant had not read this material, but it is submitted that a reasonable person would have read it, or caused her lawyers to read it, and the fact would then have been revealed.  The relevant submission which was made to the primary judge, and his Honour’s reasoning in response to it, are set out earlier at [34] and [35].
  8. [50]
    There was no finding by the judge that the relevant fact was within the appellant’s means of knowledge because it was recorded within that part (or any other part) of the FOI material.  And there was no finding that by not reading this material, the appellant had failed to take all reasonable steps to find out the fact.  Her evidence, which was not challenged in this respect, was that some years after Nicol Robinson Halletts had ceased to act for her, they rang to say that they had some of her documents in storage, which were then posted to her, and were simply placed in a box and stored in the belief that her daughter had no case.[29]
  9. [51]
    There was affidavit and oral evidence from Ms Kaarsberg from the appellant’s present solicitors.  Ms Kaarsberg said in her affidavit that she was provided with this bundle of material by the appellant during a consultation on 30 July 2019.  In cross-examination, Ms Kaarsberg said that she considered the material.  She was taken by the cross examiner to certain parts of it, although not to the part which was ultimately relied upon by counsel appearing for LWB.[30]  That part, which was relied upon, was of some relevance, but it did not provide a means of knowledge of the material fact.  It was an extract of someone’s opinion, apparently based upon an email and perhaps other documents, but where the documents themselves could not be identified.  Moreover, it was an expression of an opinion of the State’s legal responsibility, rather than a record of the State’s awareness of XY’s previous misconduct when XY was placed under the appellant’s care.
  10. [52]
    In summary, the appellant left the FOI material in the hands of her solicitor, who clearly did not discern within it the revelation of the critical fact, and who was not challenged for failing to do so.  The FOI material was heavily redacted, and that which was able to be read could not be reliably understood by an outsider.  Notably, immediately after referring to this point, the primary judge expressed the view that no one involved had done the wrong thing.[31]  This Court should decline to substitute a finding that the solicitor should have detected the critical fact from this material, and that the fact was thereby within the appellant’s means of knowledge.
  11. [53]
    The remaining issue is whether this fact was of a decisive character.  As I have discussed, before March 2020 it was open to the appellant to plead a case that the respondents ought to have known of XY’s previous conduct.  That case would have required an extensive factual inquiry, presenting a formidable task for an individual suing the State of Queensland and another well resourced defendant.  Taking the appellant’s circumstances, including her own mental health, into account, such a case is not one which she ought to have brought on the information which she then had.
  12. [54]
    Prior to March 2020, the case that the respondents had actual knowledge of XY’s history could not have been pleaded without revealing the plaintiff’s having little or no evidence to prove the fact.  Its prospects were then poor, and in the appellant’s circumstances, that was a case which she ought not to have then brought.

Conclusion and orders

  1. [55]
    The primary judge ought to have found that a material fact of a decisive character relating to the appellant’s right of action was not within her means of knowledge until 16 March 2020.  The judge ought to have extended the limitation period accordingly.
  2. [56]
    I would order as follows:
  1. Grant leave to appeal.
  2. Allow the appeal.
  3. Set aside the orders made in the District Court on 22 July 2021.
  4. The period of limitation for the appellant’s claim against the first and second respondents, for damages for personal injuries, be extended to 16 March 2021 pursuant to s 31 of the Limitation of Actions Act 1974 (Qld).
  5. The costs of each party of the application in the District Court be that party’s costs in the proceeding in that Court.
  6. The respondents pay the appellant’s costs of the proceeding in this Court.
  1. [57]
    MULLINS JA:  I agree with McMurdo JA.

Footnotes

[1]  [1994] 2 Qd R 431 at 437; [1993] QCA 114.

[2]  [2007] QCA 327 at [22].

[3]  At [22].

[4]  [2005] QCA 110.

[5]AB v State of Queensland & Anor [2021] QDC 171 [23] (“Judgment”).

[6]  Judgment [24].

[7]  Judgment [32].

[8]  AR 439-442.

[9]  AR 356.

[10]  AR 479.

[11]  Judgment [56].

[12]  Ibid.

[13]  Judgment [35].

[14]  Judgment [46].

[15]  Judgment [43].

[16]  Judgment [59].

[17]  Ibid.

[18]  Ibid.

[19]  Judgment [60].

[20]  Judgment [61].

[21]  Judgment [64].

[22]  AR 585; Affidavit of Ms Dudley affirmed 19 July 2021 exhibit MKD-5.

[23]  Judgment [66].

[24]  Ibid.

[25]  Judgment [60].

[26]  (1990) 170 CLR 104 at 116; [1990] HCA 26.

[27]  Judgment [64].

[28]Uniform Civil Procedure Rules 1999, r 150(1)(k), r 150(2).

[29]  Appellant’s first affidavit, paragraphs 64-66.

[30]  Ms Kaarsberg was cross-examined by counsel appearing for the State of Queensland but not further cross-examined by counsel for LWB.

[31]  Judgment [67].

Close

Editorial Notes

  • Published Case Name:

    AB v State of Queensland & Anor

  • Shortened Case Name:

    AB v State of Queensland

  • MNC:

    [2022] QCA 109

  • Court:

    QCA

  • Judge(s):

    Fraser JA, McMurdo JA, Mullins JA

  • Date:

    17 Jun 2022

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2021] QDC 17122 Jul 2021-
Appeal Determined (QCA)[2022] QCA 10917 Jun 2022-

Appeal Status

Appeal Determined (QCA)

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