DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for an extension of the limitation period under s 31 of the Limitation of Actions Act 1974 (“the Act”). The plaintiff commenced a proceeding against the defendant by a claim and statement of claim filed on 2 August 2006 by which the plaintiff claims damages for assault and psychiatric injury, including aggravated and exemplary damages. The attached statement of claim alleged that the relevant events occurred between 11 April 1981 and 31 December 1990. The plaintiff was born on 11 April 1978, so the limitation period expired on 11 April 1999. By a notice of intention to defend and defence filed 6 September 2006, the defendant admitted that he intentionally and unlawfully sexually assaulted the plaintiff, though he did not admit the injuries alleged and a good deal of the detail in the statement of claim, and pleaded that the plaintiff’s cause of action sued on was barred by s 11 of the Act.

2. [2]
   In these circumstances, the crucial question for me is whether a material fact of a decisive character was not within the means of knowledge of the plaintiff until after the commencement of the period of 12 months before the claim was filed, on 2 August 2006. Although that was not the wording of the test in the Act, such a formulation of the relevant question in circumstances such as these has been approved.^[1]

3. [3]
   The plaintiff relied on the proposition that on or about 8 September 2005 her solicitors were provided by a psychologist Dr Barling with a medical report which expressed the opinion that the plaintiff had a major depressive disorder and post‑traumatic stress disorder with a significant impact on her level of functioning. The plaintiff’s case was that until receipt of that report she was not aware of her conditions, and that those conditions were the result of what the defendant had done. The submission for the plaintiff really proceed on two alternative bases: that the knowledge of the recognised psychiatric conditions which the plaintiff suffers was a material fact of a decisive character, and that the existence of a causal link between the sexual assault and the sort of life that the plaintiff was leading was something of which she was unaware prior to the time when she received medical reports, and therefore that was a material fact of a decisive character.

Facts

4. [4]
   The plaintiff was born on 11 April 1978. Accordingly, the period during which the relevant conduct was said to have occurred was from her third birthday until the end of the calendar year in which she turned 12. She did not make a complaint to the police until 1995. Following that complaint, a statement was made to the police on 22 March 1995. As a result of their investigation, criminal proceedings were taken against the defendant, and during his trial the defendant pleaded guilty and was sentenced on 12 December 1995 by another judge in respect of seven counts of indecent dealing. There is no evidence about whether any victim impact statement was provided by the plaintiff at that time, or (if so) what it said.^[2]

5. [5]
   The plaintiff in her affidavit^[3] said that it was not until she consulted Dr Barling that she became aware that she would require further psychological assistance and treatment for her condition. Prior to the consultation, she was not aware how badly she had been affected by the defendant’s abuse. When she read his report she became aware she was suffering from post‑traumatic stress disorder and depression. She said that prior to that time she had not realised that she had those conditions.

6. [6]
   During the relevant period, she was at school; she completed grade 12 in the year in which the criminal trial occurred. She worked in various casual jobs during that year, and some time later began a dental assistant’s course, which she stopped attending because of concentration difficulties that she now attributes to the actions of the defendant.^[4] She worked in various jobs at the dental hospital or at the University of Queensland dental faculty, and subsequently with a dentist, but in 2000 or 2001 she moved to the Gold Coast to get away from Brisbane “due to the memories there”. She then worked in a couple of dental surgeries on the Gold Coast, which was continuing up to the time of swearing the affidavit.

7. [7]
   The plaintiff said in her affidavit she had difficulty in holding down employment due to poor concentration and an inability to cope with the pressure of the situation which she attributed to the psychiatric conditions from which she suffers, and that she believed the level of her earnings was reduced because of the defendant’s actions. She said she regularly takes sick leave because she cannot cope with her day-to-day life, and is not paid for sick days. She is working as a receptionist; she is unable to cope with the work of a dental assistant. Prior to moving to the Gold Coast, she suffered drug addiction and depression which affected her daily life, and she was involved in detoxification treatment between 1995 and 1998, on two occasions. She found it impossible to talk about her abuse with people. She said she was badly affected by the experience of telling police and going to court, and she did not feel able to talk about it until she saw her solicitor, which was for the first time in July 2005, and she had difficulty at that time. There is nothing in the affidavit to suggest that any of the matters about which she complains are of recent origin; on the face of the affidavit, these problems have been continuous since she left school.

8. [8]
   I was also provided with a copy of a report of 8 September 2005 by Dr Bartling, a psychologist. The report did not contain much information under the heading “Post incident developments”, but does note that the plaintiff “reported that in order to cope with her life and escape her memories she drank heavily and was addicted to heroin until moving to the Gold Coast in 2002.” The report also noted that she had attempted suicide on two occasions, and engaged in self injurious behaviour, but does not say when. She was said to be often restless, excessively angry and frustrated and had limited tolerance of others, and found it difficult to trust men. She reported that she often had flashbacks about the assault and had intrusive thoughts, particularly when she saw someone who reminded her of her grandfather. She is hypervigilant and does not like to go out alone. She has difficulty in personal relationships, although at the time of the interview with the psychologist, she was living in a de facto relationship of two years standing.

9. [9]
   The psychologist undertook a personality assessment inventory, and another test using a post‑traumatic stress diagnostic scale. On the basis of the tests conducted, the consultation and the psychologist’s clinical experience, he expressed the opinion that she met the criteria for a major depressive disorder, a post‑traumatic stress disorder, an eating disorder not otherwise specified, and a borderline personality disorder. He described her problems as chronic and pervasive; he said that her performance using the global assessment of functioning scale in DSM‑IV was approximately 65 percent of normal function. Nothing was said about how long she might have had these conditions, although they were linked to the sexual assaults which are the subject of the action.

10. [10]
    There is in the report it seems to me a good deal of interpretation of what I assume are test results, in terms of various things which the psychologist would have expected to have occurred or be occurring; for example, on p 6 there is the statement “she may have relatively few close relationships or be dissatisfied with the quality of these relationships.” That is expressed as an opinion based on the results of the testing obtained, rather than a statement that she gave a history that she had had relatively few close relationships or had been dissatisfied with the quality of those relationships.

11. [11]
    This report was not itself verified by affidavit, so he could not be cross‑examined: the plaintiff was not cross‑examined. No point was taken on behalf of the defendant that the report was from a psychologist rather than a psychiatrist.

12. [12]
    Following receipt of the report, the plaintiff’s solicitor made an application under s 43 of the Personal Injuries Proceedings Act 2002, and on 31 July 2006 an order was made for leave to commence a proceeding. This application was filed on 10 October 2006.

Authorities

13. [13]
    When dealing with the application, it is necessary to determine first whether the facts of which the plaintiff was unaware were material facts; next, whether they were of a decisive character; and finally, whether they were within the means of knowledge of the plaintiff before the specified date.^[5] A fact is not within the means of knowledge of a person at a particular time only if she does not know that fact, and she has taken all reasonable steps to find it out.^[6]

14. [14]
    The question that arises in this case is similar to the question that arose in Carter v Corporation of the Sisters of Mercy of the Diocese of Rockhampton and Ors [2001] QCA 335. In that case also the appellant relied on the fact that she had suffered psychiatric injury and the fact that it had been caused by particular events in her past as amounting to material facts of decisive character of which she only became aware when seeing an expert report. The case was somewhat different from the present, in that that appellant had previously consulted psychiatrists and psychologists before the particular psychiatrist whose report was relied on, although it was said that none of them had identified a particular psychiatric injury involved, or dealt with the question of causation. In that case as well, the psychiatric condition manifested itself in depression and drinking to excess, and she was obviously aware of the presence of those symptoms, as well as the fact that she had become a very aggressive person. Her affidavit spoke of this aggressiveness as something related to the abuse which she had suffered, and this was relied on by the majority as indicating that she was able to make a connection between the treatment she had received and her mental state or behavioural condition.

15. [15]
    McPherson JA at [16] said:

“The question is … not whether there was any expert evidence, before that date, but whether she realised the possible connection between the two, or had taken reasonable steps to find out if there was. 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.”

16. [16]
    MuirJ at [32] said in relation to the test of whether a fact was within the plaintiff’s means of knowledge:

“That test is an objective one applied to a person with a background and circumstances of the applicant for an extension of the limitation period. 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 … or to make the assessment contemplated by s 30(1)(b) of” the Act.

17. [17]
    Another way of putting the same proposition is to say that “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.”^[7]

18. [18]
    There has been some difference of opinion in the Court of Appeal as to the correct formulation of the test to be applied for the purpose of s 30(1)(c) of the Act, as to whether the person seeking an extension of the limitation period “has taken all reasonable steps to find out the fact before that time.” The test which has been traditionally applied in Queensland was first formulated by the Full Court of Victoria in McManamny v Hadley [1975] VR 705 at 714:

“The test to be applied is, we think, an objective one to be applied to a person in the position of the plaintiff and with her background and understanding.”

19. [19]
    That test was adopted by Lucas J at first instance and then expressly approved by the Full Court in Castlemaine Perkins Ltd v McPhee [1979] QdR 469. That formulation has subsequently been adopted by the Court in Randel v Brisbane City Council [1984] 2 QdR 276 at 285, and in Carter (supra) by Muir J in the passage at [32] cited earlier. On the other hand, in NF v State of Queensland [2005] QCA 110, Keane JA said at [29]:

“It is to be emphasised 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 face is not within her means of knowledge for the purpose of s 30(1)(c) of the Act.”

20. [20]
    This is consistent with the approach of Dawson J in Do Carmo (supra) at 259^[8] and of the Court of Appeal in Healy v Femdale Pty Ltd [1993] QCA 210, where the court in a joint judgment said at p 5:

“There is no requirement to take ‘appropriate advice’ or to ask appropriate questions if in all the circumstances it would not be reasonable to expect the plaintiff to have done so.”

21. [21]
    The distinction between the behaviour of a reasonable person with the background and understanding of the applicant for an extension of time, and the actual applicant, is perhaps a subtle one, and one which is unlikely to produce any difference in outcome in practice. I do not think it affects the outcome in this matter. Ultimately, this is an issue which will have to be resolved by the Court of Appeal, but for what it is worth I would respectfully agree with the approach adopted by Keane JA.

22. [22]
    The basic purpose of the section is to relieve people from the consequences of the running of the limitation period where they are not aware of material facts of a decisive character relating to the cause of action in sufficient time. However, the legislature has not made the operation of the section depend simply on what the potential plaintiff actually knew, but has sought to restrict the scope of operation of the section by treating potential plaintiffs as if they also knew facts that they ought to have known. If one translates s 30(1)(c)(ii) from the negative, the potential plaintiff is to be treated as knowing a fact which that person would have known if that person had taken all reasonable steps to find out that fact. Because the test involves a consideration of what is reasonable, it involves an objective test,^[9] but it is it seems to me clear enough from the language of the section than it is an objective test applied to the particular person who is the applicant for the extension of time, the potential plaintiff. The question of whether that person has taken all reasonable steps should therefore be asked by reference to what was reasonable for that person, rather than a hypothetical person, though what was reasonable for that person is not of course the same as what that person thought it was reasonable to do; otherwise the test would be subjective.

23. [23]
    As was pointed out by Keane JA in NF (supra), this is a different test from that established in s 30(1)(b), where the issue of whether a material fact is decisive is to be decided not by reference to what the particular potential plaintiff would regard the facts as showing, but by reference to what a reasonable person knowing those facts and having taken appropriate advice on those facts would regard those facts as showing. It is not only an objective test, it is an impersonal objective test, and it assumes that appropriate advice has been taken. Accordingly, whether a person is treated as having taken reasonable steps to find out a fact depends on whether it would have been reasonable for that particular person to take steps to find out that fact, so that if that person had no occasion to be concerned about that fact, it would be reasonable not to have taken steps to find it out. On the other hand, in deciding whether material facts are of a decisive character, there is an assumption that appropriate advice has been taken, and the test is applied by reference to how a hypothetical reasonable person would respond in the light of that appropriate advice, not in terms of how it was reasonable for this particular potential plaintiff to respond.^[10]

24. [24]
    The practical effect of this, it seems to me, is that any reluctance on the part of the plaintiff to think about or discuss or investigate matters associated with the sexual assaults is a factor to be taken into account when determining whether any particular fact was within her means of knowledge at a particular time; but it is not a factor to be taken into account when determining whether a material act is of a decisive character. That is because the latter is to be tested on the assumption that appropriate advice has been taken, and there is nothing in s 30(1)(b), or as far as I am aware in the authorities, to suggest that the assumption of the taking of appropriate advice is to be modified because of any reluctance on the part of a particular prospective plaintiff, for any reason, actually to take that advice.

25. [25]
    That I think is the position here; from the time of the conviction of the defendant for the criminal offences, the material facts that the plaintiff then knew would have been regarded by a reasonable person who had taken appropriate advice, as showing that an action against the defendant would have a reasonable prospect of success and of resulting in an award of damages sufficient to justify bringing such an action and that she ought to bring such an action. Section 30(b)(ii) speaks about the position of the particular applicant for an extension and the circumstances of that applicant, but because of the introductory words of para (b), the relevant assessment is to be made by a reasonable person having taken appropriate advice on the facts rather than the particular applicant for an extension.^[11]

Analysis

26. [26]
    The present case is not as clear-cut as Carter, in that, if the plaintiff has never obtained psychiatric or indeed psychological assistance in the past, she may well not have been as well aware of the significance of her condition. But whether she is suffering from a particular psychiatric condition is not in my opinion what really matters in a case like this. The plaintiff might not have known that she was suffering from a particular condition, that is to say, a condition to which a particular diagnostic label can be attached, but she would certainly have been aware of the presence of the symptoms of that psychiatric condition. She could hardly fail to be aware of them.

27. [27]
    I have discussed to some extent in Hopkins v State of Queensland [2004] QDC 21 at [37], [38] the question of whether a person can be unaware of the existence of a psychiatric injury, and noted that in some cases at least that would be possible, but that in view of the nature of post-traumatic stress disorder, it is unlikely to be possible in the case of that particular condition, because of the particular nature of the condition. That situation arises in the present case. One symptom of post‑traumatic stress disorder is flashbacks, and Dr Barling’s report noted that the plaintiff had reported that she often had flashbacks about the assaults by the defendant, and had intrusive thoughts when she saw someone who reminded her of the defendant. That indicates that she has been experiencing consequences of the assaults in a way which would necessarily identify to her that they are associated with that particular trauma.

28. [28]
    There was also the evidence that she drank heavily and was addicted to heroin, in order to cope with her life and escape her memories. There was no suggestion that there are any other relevant memories to escape other than the memories of what was done by the defendant. She also associated her move to the Gold Coast with a desire not to reside in Brisbane “due to the memories there”.^[12] That one is reacting to particular memories not only shows that one is conscious of what is being remembered, but also shows that one is necessarily aware of the connection between what is being remembered and the behaviour which is a reaction to those memories.

29. [29]
    The plaintiff also relied on the New South Wales decision of Johnson v DOCS [1999] NSWSC 1156. In that case, like NF (supra) and Woodhead v Elbourne [2001] 1 QdR 220, there was an applicant who had suffered a number of psychological traumas so that it may have been difficult to associate particular psychiatric consequences with some particular trauma. Such cases are to be distinguished from cases where there is only one relevant trauma on the basis outlined in NF (supra) by Keane JA at [13]:

“The many harrowing aspects of the respondent’s childhood support this finding in the sense that the respondent was not in the position of a person who has suffered only one trauma in the course of her life, and who therefore knows inevitably that the sequelae of the trauma were caused by it.”

30. [30]
    Neither the plaintiff’s affidavit nor Dr Barling’s report makes any reference to any other significant alternative psychological trauma which the plaintiff has suffered. She was therefore not in that position, and did not face the difficulty in making the relevant connection faced by the applicants in those cases.

31. [31]
    In the present case, there is no medical evidence that the psychiatric condition of the plaintiff prevented her from either appreciating the existence of a psychiatric condition, or associating it with the treatment she received at the hands of the defendant. In this respect, the position is the same as that identified by Muir J in Carter, and may be contrasted with the position of the plaintiff in Jocumsen v Thiess Pty Ltd [2005] QCA 198, a case where an extension of the limitation period in respect of a psychiatric injury was based on psychiatric advice that as a result of his condition the plaintiff would have to cease employment involving the operation of heavy plant, which was the area in which he was experienced and which was a lucrative form of employment otherwise available to him. In that case, there was medical evidence from a psychiatrist that the plaintiff’s psychiatric condition would as part of its features be likely to produce delay in seeking treatment.

32. [32]
    Significantly, in that case, the court proceeded on the basis that unless there was a prospect of a significant award for economic loss, it was reasonable to regard an action as not worth pursuing, so that the indication of a prospect of significant economic loss rendered the material fact decisive. However, that decision did not turn on the fact that the plaintiff had not sought to investigate his psychiatric condition, in that case also post‑traumatic stress disorder. Well before the relevant 12 month period, the plaintiff was aware that he was suffering from post‑traumatic stress disorder as a result of the particular incident for which he alleged the defendant was responsible. The real issue in that case was whether the material fact was of a decisive character, in the sense that it made the difference between a claim that was not worth pursuing and one which was worth pursuing, and that turned on the question of when the plaintiff reasonably believed that the psychiatric condition was likely in the future significantly to affect his earning capacity adversely.

33. [33]
    Muir J, with whom McPherson JA agreed, said at [49]:

“The respondent elected to continue with his well paid employment despite his disability and, generally until after leaving the Hunter Valley, managed to cope without recourse to further medical assistance. He thought, not unreasonably, that given time he would recover from his disability. The medical evidence before the primary judge does not reveal the respondent’s understanding or his self help approach to be unreasonable.”

34. [34]
    In my opinion, the present case is different for two reasons: first, this is not a case where the plaintiff appeared for a time after the relevant event to be able to get on with her life and cope reasonably satisfactorily; on the evidence before me the situation was very much the reverse in this case. Second, even if the plaintiff did not have a full understanding of the implications to her in psychiatric terms of what the defendant had done to her and its continuing effect of those conditions on her life, she was sufficiently aware of matters which, had she obtained appropriate legal advice in respect of them, would have indicated that an action for damages would have been worth pursuing.

35. [35]
    It is well established that what is required in terms of knowledge of material facts does not extend to knowledge of the legal significance of those facts.^[13] In the present case, the plaintiff knew she had been sexually assaulted for a number of years, and that in itself would be likely to give rise to some significant claim for damages, even in the absence of evidence of any particular psychiatric consequences, on the basis of damages for vindication of personal integrity.^[14] Apart from that, it is apparent from the matters to which I have referred earlier that it must have been obvious to the plaintiff, to some extent at least, that she had significant problems that were a consequence of what the defendant had done to her. On the basis of what she knew, if she had taken appropriate legal advice, I expect she would have been advised that she had a good action for damages for assault worth pursuing.^[15] It is also likely that the medical evidence which has now been obtained would have been obtained at that earlier stage, although that is of no consequence in the context of this application.

36. [36]
    It was well established that a material fact is not of a decisive character if it merely serves to enlarge the award of damages which would otherwise have been made, unless, without the newly learnt fact or facts, the plaintiff would not, even with the benefit of appropriate advice, have previously appreciated that she had a worthwhile action to pursue which it would be in her own interest to pursue.^[16] In the present case, even if the effect of the report from Dr Barling was to give the plaintiff a fuller appreciation of the consequences that she had suffered as a result of the defendant’s actions, and a clearer understanding of her future prospects, I am not persuaded that it was decisive in that sense. At best, it enlarged the damages likely to be awarded.

37. [37]
    In the present case, the plaintiff knew what the defendant had done to her, and knew of the symptoms she was suffering and had suffered of the various psychiatric conditions identified in the report of Dr Bartling, even though she was not aware of the identify of such psychiatric conditions. It also must have been apparent to some extent that those symptoms were associated with what the defendant had done to her. In those circumstances, I am not persuaded that the result of her having received Dr Barling’s report was that a material fact of a decisive character first came to be within her means of knowledge.

Conclusion

38. [38]
    For completeness, I should say that there is evidence to establish a right of action apart from the defence founded on the expiration of the period of limitation, and the contrary was not argued on behalf of the defendant. Furthermore, in case a different view may be taken elsewhere, I should say that if I had a discretion to extend the limitation period in the present case, I would exercise that discretion in favour of the plaintiff. Although the defence to some extent put to proof aspects of her claim, the basic proposition that the defendant sexually assaulted the plaintiff was not disputed, and the defendant has been tried and convicted of a number of criminal offences in connection with such sexual assaults. That circumstance is not necessarily conclusive in relation to the question of whether a fair trial can now still be held, but in circumstances where the fact of the sexual assault is not in dispute, the essential issue in the trial would be the extent of the plaintiff’s damages, and there is no material before me to suggest that a fair trial cannot now be held in relation to that matter. Indeed, counsel for the defendant did not particularly argue that, if the discretion were available, it should not be exercised in favour of the plaintiff.

39. [39]
    Nevertheless, for the reasons stated earlier, I am not persuaded that the discretion arises in the present case. It follows that the application must be dismissed. It was conceded that in these circumstances it was appropriate to go on and dismiss the plaintiff’s action, on the basis that the limitation defence is a complete answer to the plaintiff’s claim. I therefore order that the application be dismissed, the plaintiff’s action be dismissed, and the plaintiff pay the defendant’s costs of and incidental to the action including the costs of the application to be assessed.