RSF v Estate of the late RMF[2007] QDC 50

DISTRICT COURT OF QUEENSLAND

1. [1]
   On the 30th of August 1999, RMF was convicted on his own plea of guilty of 15 offences of a sexual nature and was sentenced by his Honour Judge Dodds to imprisonment.  The victim in all the offences was the applicant.  Her date of birth is the 25th of February 1983.  The offending covered a period from the 1st of January 1997 to the 19th of December 1998 when she was a child, aged between 13 and 16 years.

2. [2]
   RMF was her stepfather, indeed, the only father figure she had ever known because he had entered into a relationship with her mother before the applicant's birth.  The conduct involved grossly improper sexual conduct including acts of unlawful carnal knowledge.  Undoubtedly, this unfortunate woman has suffered serious psychological injury as a direct consequence of the offending. 

3. [3]
   On the 2nd of August 2006, the applicant filed an application for a compensation order pursuant to section 24 of the Criminal Offence Victims Act 1995.  She turned 18 on the 25th of February 2001.  Section 40 of the Act provides that an application for compensation must be made "before the end of three years after the child becomes an adult".  She therefore seeks an order for extension of time pursuant to section 41(1)(a) of the COVA which is in these terms. 

"The Limitation of Actions Act 1974 ss 30 and 31 apply to applications mentioned in ss 41 and 42 with the intention that on application - (a) a Court may order that the period of limitation under s 41 for an application to which the subsection applies be extended under the Limitation of Actions Act 1974 s 31(2)."

4. [4]
   This application has had a most chequered history.  RMF died after his release from prison and ultimately an order was made for substituted service upon his estate.  To the extent to which I can determine this has been complied with, although the order has not been taken out.  The relevant legal principles are well settled. 

5. [5]
   By operation of law, the limitation period expired on the 26th of February 2004.  The applicant has the onus of satisfying me that a material fact of a decisive nature was not within her knowledge until after the commencement of the period of 12 months prior to the filing of the application on the 2nd of August 2006. 

6. [6]
   As his Honour Judge McGill SC observed in JMC v. Moore (2006) QDC 418, by reference to authority including State of Queensland v. Stephens (2006) 80 ALJR 923 at 927, the test is not so worded in section 31, but such a formulation of the relevant question in circumstances such as these, has been judicially approved on a number of occasions.  In Pizer v. Ansett Australia Limited [1998] QCA 299, Thomas JA stated the test in this way at (paragraph 16).

"If a reasonable woman knowing what the plaintiff must have known and having taken appropriate advice on those facts, would have regarded them as showing that a right of action would have reasonable prospects of success, resulting in an award of damages sufficient to justify the bringing of the action and that she ought, in her interest to bring it, then the plaintiff fails to show 'that a material fact of a decisive nature relating to the right of action was not within the means of knowledge of the applicant', prior to the necessary date."

7. [7]
   The application, pursuant to section 41, as I say, has had a chequered history.  Originally, the applicant relied upon her own affidavit but relevantly to this issue, an affidavit of psychologist, Peter Stoker, annexing a report by Mr Stoker dated the 28th of October 2005 which refers to his opinions as a result of an in-depth interview with the applicant on the 10th of October 2005. 

8. [8]
   The material fact of a decisive nature relied upon by the applicant is that prior to seeing Mr Stoker she was not aware that she suffered from post-traumatic stress disorder as a direct result of the sexual abuse.  In his report under "Medical and Psychological History", Mr Stoker observes (obviously on the basis of what he was told by the applicant):

"For a three year period between the ages of 18 and 21, she saw Nicky Owen, social worker, on a fortnightly basis.  Her GP referred her to same.  ...  Ms Owen helped her with her first compensation claim (namely, the completion of the form) approximately a year ago.  However, Legal Aid told her that her claim was lodged outside the statutory requirements."

9. [9]
   Given the nature of the test and the importance of the period prior to the expiration of the limitation period that information is potentially crucial and important.  However, the applicant's solicitor had apparently not read it and if he had, he had not appreciated its significance and when the application proceeded before me, there was no evidence from Ms Owen or the general practitioner.  Mr Barnett who appeared at that time, appropriately asked for an adjournment and affidavits from both persons have now been filed.

10. [10]
    Because these proceedings are essentially non-adversarial, none of the witnesses on this point have been tested by cross-examination.  It is clear, however, that the applicant was aware of a lot of distressing psychological effects as a result of the terrible conduct of her stepfather from soon after the cessation of the abuse.  By way of example, Mr Stoker in his report states,

"She suffered two or three nightmares of the abuse (of him touching her) per week and on occasion, would awake feeling 'yuk'.  Since the death of her abuser, she has felt a great sense of relief, happy and free.  The nightmares are now less intense.  ...  She was suffering weekly flashbacks/images of the abuse.  These have since abated since her abuser's death.  ...  As a result of his sexual abuse, she was left with intrusive images.

She still becomes anxious and depressed when things trigger images of the abuser.  She pictures him doing that to her.  She is still angry at him and ruminates over the why of the situation.

She feels disgusted it happened to her.  ...

She has become more introverted since the abuse.  Prior to being sexually abused, she loved going out.

She has poor self esteem and would repeatedly wash her body up to five times when in the shower in an attempt to wash away the abuse.

She now spends one to one and a-half hours in the shower nightly as it is now an obsession for her and she's trying to be clean.

She is more distrustful of men."

11. [11]
    Mr Stoker's opinion of post-traumatic stress disorder based on the DSM4 is premised on his observation, "She continues to have frequent and intrusive recollections of the abuse both in the form of nightmares and flashback imagery."

12. [12]
    Unfortunately, the affidavits of Ms Owen and the GP, Dr Smith, do not assist the applicant.  In her affidavit filed in support of the application on the 2nd of August 2006, the applicant states at paragraph 7,

"I now know that I've been diagnosed as suffered from post-traumatic stress disorder.  I have not received any treatment for this condition and until recently, I was not aware that I had this condition.  My doctor had referred me to a social worker, Ms Nicky Owen, for counselling.  I attended the said counselling every fortnight between the ages of 18 and 21.  I do not believe that the counselling did much good as I am extremely angry in relation to my past experiences."

13. [13]
    The affidavit was sworn on the 18th of July 2006 and that information accords with what she told Mr Stoker.  Ms Owen's report dated the 8th of November 2006 is annexed to an affidavit filed on the 12th of February 2007.  Her first contact with the applicant was on the 4th of March 2004 and the last on the 24th of December 2004.  So obviously, she saw the applicant first when she was 21 and not between the ages of 18 and 21.

14. [14]
    Dr Smith, the general practitioner, did not see the applicant until July 2004 and obviously, did not refer her to Ms Owens.  The doctor notes, "She suffers with depression and anxiety as a result of sexual abuse she suffered in the past."

CONCLUSION: 

15. [15]
    It is now settled that it is irrelevant that no one has appeared and relied upon the limitation point and that the limitation contained in section 40, is a condition of the right to apply for compensation granted by section 24:  per Davies JA (with whom McPherson and Williams JA agreed in Jacob v. Roberts [2002] QCA 87.

16. [16]
    In applying the appropriate test to the facts here, it is clear that the applicant has not satisfied the onus upon her.  I respectfully adopt and apply the remarks of his Honour Judge McGill in JMC v. Moore 2006 QDC 418 (at paragraph 35) that from the facts before the Court which I have identified:

"... It must have been obvious to the (applicant) to some extent, at least, that she had significant problems that were as a consequence of what (the respondent) 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 cause of action for damages ... worth pursuing."

17. [17]
    This case is somewhat analogous to AMT v. TMT (2004) QDC 155, a case in which an application for compensation had been filed eight months after the expiration of the limitation period.  In that case, his Honour Judge Hoath dismissed the application. 

18. [18]
    The discretion to extend the limitation period does not arise and unfortunately, the application must be dismissed.  In the event that I am found to be wrong in my conclusion, in the circumstances here I indicate that if the discretion had arisen, I would have exercised it in favour of the applicant.  Based on the evidence of Mr Stoker, I would have placed her mental or nervous shock injury under item 33 but in accordance with the scaling process mandated by the Court of Appeal in R v. Ward; ex parte Dooley [2001] 2 Qd R 436; (2000) 111 Aust Crim R 266, I would allow her 20 per cent of the scheme maximum which is $15,000.

19. [19]
    I am also satisfied that she has suffered "adverse impacts" of the offending, as defined in section 1A of the Criminal Offence Victim Regulation 1995; that is adverse impacts over and above the discrete mental or nervous shock injury as described by Mr Stoker, namely a post-traumatic stress disorder:  Julie v. Atwell [2002] 2 Qd R 367.  This is despite no reference to such impacts or the relevant law in any of the submissions relating to quantum. 

20. [20]
    Clearly on the evidence of Mr Stoker, she has suffered adverse impacts including a sense of violation, reduced self worth or perception, increased fear, adverse impacts on feelings and lawful sexual relations, adverse impact on relations with her half-siblings and heightened concern about the safety of her own daughter.  These are significant adverse impacts and I would have allowed her 30 per cent of the scheme maximum under this heading; that is, $22,500.