N v State of Queensland[2004] QSC 290

SUPREME COURT OF QUEENSLAND

[1] McMURDO J:  The plaintiff was born in 1955.  In April 1968, she was committed to the care and control of the Director of the Department of Children’s Services, and for the next six months she was placed at an institution operated by the State of Queensland called Karrala House. 

[2] Since November 1996, the plaintiff has been treated by a psychiatrist, Dr Atchison.  She has diagnosed the plaintiff as suffering from a permanent psychiatric disability, which she describes as a post-traumatic stress disorder and claustrophobia.  In Dr Atchison’s opinion, the conditions in which the plaintiff lived at Karrala House are the sole cause of her claustrophobia, and are a cause, along with other events of her childhood, of the plaintiff’s post-traumatic stress disorder.

[3] On 12 March 1997, the plaintiff sued the State of Queensland, claiming damages for  her treatment at Karrala House.  Clearly that was well outside any relevant period of limitation.  By this application, the plaintiff seeks an order pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) for the extension of the limitation period to the date on which these proceedings were commenced. 

[4] Her application is opposed on three grounds.  First, it is said that she has failed to prove that a material fact of a decisive character relating to her right of action came within her means of knowledge only after the critical date for s 31, which in this case is 12 March 1996.  Second, the defendant argues that the plaintiff has not demonstrated that she has a right of action, as required by s 31(2)(b).  The third and principal submission for the defendant is that it would be significantly prejudiced if forced to defend the case, by the passing of time between the events of 1968 and now.  Before going to each of those issues, it is necessary to discuss the alleged rights of action. 

The alleged duties owed to the plaintiff

[5] The claims are for damages for a breach of statutory duty and for negligence.  The statute was the Childrens Services Act 1965 (Qld), and the relevant statutory duty was that owed by the Director of the Department of Childrens Services pursuant to s 65. 

[6] According to s 9 of that Act, it was to be administered by the relevant Minister and, subject to the Minister, by the Director.  By s 13, the Director held office subject to and in accordance with the Public Service Acts 1922 to 1965.  The Defence admits that the defendant was the employer of the Director and “vicariously liable in respect of any injury caused or damage done by the Director in exercising his powers, duties and functions under the Act”.

[7] By s 61 of the Act, a child could be committed to the care and control of the Director by an order of the Children’s Court.  In April 1968 an order was made for the committal of the plaintiff.  By s 64, such an order vested the guardianship of the child in the Director and authorised him to deliver the child to such place as he directed.  Section 65 provided that it was the duty of the Director to utilise his powers and the resources of the Department “so as to further the best interests of such child in care”. 

[8] Paragraph 4 of the Statement of Claim, which is admitted, pleads the existence of that statutory duty.  Paragraph 5, which is also admitted, pleads that:

“Pursuant to s 64 of the Act by reason of the order the Director became the guardian of the plaintiff and as such owed the plaintiff a duty to act with respect to the plaintiff in the plaintiff’s best interests and as such guardian, in the exercise of his power to deliver the plaintiff to such place as the Director may from time to time direct, to ensure the plaintiff would be properly cared for and protected.”
 

Section 64 did not provide, at least expressly, that any duty was owed by the Director, whether in terms of what is alleged in paragraph 5 or otherwise.  The plaintiff pleads that her treatment at Karrala House was a breach of the “duties referred in paragraphs 4 and 5” and that her psychiatric condition is the result of breaches of those duties.  In the prayer for relief, there is a claim for damages for negligence and breach of statutory duty.  It therefore appears that the duty alleged in paragraph 5 is a common law duty of care.  It should then be understood not as an absolute duty, but as one which required the exercise of reasonable care, and specifically a duty to take reasonable care to protect the plaintiff from a foreseeable risk of harm to the plaintiff’s welfare, including her health. 

[9] On the hearing of this application, there was no debate as to whether, upon its proper interpretation, the Childrens Services Act 1965 provided a private right of action for damages for a breach of the Director’s duty under s 65.  Nor was there argument as to whether the Director owed a duty at common law to take reasonable care.  And it is apparently accepted that the State of Queensland would be vicariously liable for any breach by the Director, notwithstanding that the terms of s 65 were to impose a statutory duty upon the Director.[1]

[10] In this case therefore, it is unnecessary to consider what was said as to the existence of duty of care in this context in, for example, Williams v The Minister, Aboriginal Land Rights Act 1983 and the State of New South Wales [2000] NSWCA 255 at [160] – [171] per Heydon JA (as he then was) and Barrett v Enfield London Borough Council [2001] 2 AC 550.  This application must be decided upon the premise that the alleged duties were owed and that, subject to the operation of the limitation period, the State of Queensland is liable for any breach. 

The alleged breaches of duty

[11] Paragraph 7 of the Statement of Claim pleads as follows:

“7.In breach of the duties referred to in paragraphs 4 and 5 hereof:

(a)the Director caused, allowed or permitted the plaintiff to be held in solitary confinement or otherwise held with limited privileges, with little or no contact with other children, with no bed stead and only a canvass mat for a bed, with no access to the recreation room and with no adequate provision for her person hygiene, health needs or toileting; and/or

(b)the plaintiff was kept in solitary confinement or      otherwise held with limited privileges, with little or      no contact with other children, with no bed stead and      only a canvas mat for a bed, with no access to the      recreation room and with no adequate provision for      her personal hygiene, health needs or toileting.”

[12] The apparent distinction between paragraphs (a) and (b) is that between the duties pleaded respectively in paragraphs 4 and 5.  The defendant denies that the plaintiff was kept in “solitary confinement” and otherwise does not admit the allegations in paragraph 7.  As I will discuss, the issue in that respect is not one of the facts of the plaintiff’s accommodation, but whether they could be fairly characterised as solitary confinement. 

Alleged loss and damage

[13] Paragraphs 8 and 9 of the Statement of Claim, which are not admitted, are in these terms:

“8.As a result of the said breach of the said duties the Plaintiff:

(a)became frightened and distressed;

(b)has suffered and continues to suffer recurrent episodes of depression;

(c)has from time to time been suicidal;

(d)suffers severe claustrophobia;

(e)fears using toilets other than her own at home;

(f)showers with the light off and leaves the door open;

(g)is unable to tolerate riding in lifts;

(h)suffers persistent headaches and migraines which become worse at times of stress;

(i)has suffered a detrimental affect upon her personality development;

(j)is hypervidulent particularly when men are present;

(k)is hypertensive;

(l)is unable to trust others;

(m)suffers a post trauma stress disorder;

all of which factors contribute to her having a permanent partial disability.

9.By reason of the symptoms and psychological injuries described in paragraph 8 the Plaintiff has suffered loss and damage in the nature of mental anguish and pain, her enjoyment of the amenities of life has been diminished, her ability to obtain employment has been restricted and will be restricted in the future, she has lost income which she would otherwise have earned and she will lose income in the future, she had required medical assistance and will require medical assistance in the future, she has incurred expenses in obtaining treatment and will require to expend monies in the future for such treatment and she has required and will from time to time in the future require the voluntary assistance of others.”

[14] In substance, her claim as to the effects of her treatment at Karrala House is based upon the opinions of Dr Atchison who wrote in April 1997 that:

“… confinement at Karrala House has left her suffering from disabling claustrophobia and again shattered her ability to trust people who should have been caring for her.  Instead of recognising her distress at the predicament she was in her life, staff at Karrala House compounded her problems by their treatment of her. 

I believe Ms [N] is suffering a permanent psychiatric disability - post traumatic stress disorder and claustrophobia - as a result of her incarceration in Karrala House … I would rate her permanent disability as 20%. 

Her psychological conditions have affected her choice of employment, i.e. she is unable to work in confined areas.  However, work has been a healing experience and has generally helped her to overcome some of the scars from her past.  I do not believe her psychological condition plays a major part in her current incapacity to work.”

[15] Dr Atchison says that the plaintiff’s depression and suicidal tendencies are the result of traumatic experiences from her past, of which those at Karrala House are but some.  Quite apart from her time at Karrala House, the plaintiff had a terrible childhood.  She was placed in an orphanage when aged 18 months, and remained there for some 10 years, during which she was subjected to physical and sexual abuse by orphanage staff.  When she was 11, she went to live with her father who physically abused her.  She ran away from him and was placed in another institution from which she ran away.  It was in consequence of her leaving this place that she was committed to the care and control of the Director and sent to Karrala House.  After she left there, she went to live with her mother who did not want her in the house.  She left that place as a young teenager and was taken into police custody.  On release, she spent some time in another institution and at other times she worked as a prostitute.

Section 31

[16] The relevant power to extend time comes from s 31 of the Limitation of Actions Act 1974 (Qld), which provides as follows:

“31 Ordinary actions

(1) This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.

(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court--

(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.

(3) This section applies to an action whether or not the period of limitation for the action has expired--

(a) before the commencement of this Act; or

(b) before an application is made under this section in respect of the right of action.

[17] The meanings of the expressions “material facts relating to a right of action”, “of a decisive character” and “means of knowledge” are defined by s 30 in these terms:

“30 Interpretation

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

(a) the material facts relating to a right of action include the following –

(i) the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;

(ii) the identity of the person against whom the right of action lies;

(iii) the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;

(iv) the nature and extent of the personal injury so caused; (v) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;

(b) material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing –

(i) that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and

(ii) that the person whose means of knowledge is in question ought in the person's own interests and taking the person's circumstances into account to bring an action on the right of action;

(c) a fact is not within the means of knowledge of a person at a particular time if, but only if –

(i) the person does not know the fact at that time; and

(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.

(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.”

The material fact

[18] The material fact relied upon for this application is that the plaintiff’s experiences at Karrala House caused or contributed to her psychiatric condition. She is required to prove that this fact was not within her means of knowledge until after the critical date, which is 12 March 1996.   The plaintiff says that she was not aware of this causal connection until September 1996.  The defendant argues that the plaintiff did know that fact before the critical date, or alternatively that it was within her means of knowledge, because she could have found out that matter had she taken all reasonable steps to do so. 

[19] The plaintiff was treated for depression when in her early twenties, by Dr Lepage, a psychiatrist.  He prescribed medication and told the plaintiff that until she could identify and discuss her problems, she could continue to have depressive episodes.  In her affidavit, the plaintiff makes no reference to seeing Dr Lepage or to being treated at this time.  But this was something which she told Ms Bretag, a psychologist, whom she consulted on several occasions in 1996, and which Ms Bretag has recorded in her report of 4 July 1997.  Dr Lepage has no records or recollection of seeing the plaintiff.  I find that the plaintiff did see Dr Lepage, and that he advised her to the effect stated by Ms Bretag. 

[20] The plaintiff says that she was always aware of her problems but that until September 1996, she had never considered whether there was any connection between them and her experiences at Karrala House.  Further, she swears that at no time prior to September 1996 did she discuss her treatment at Karrala House with anyone. 

[21] The plaintiff began living with a man in 1972 and their relationship has continued since.  They have two sons now aged about 31 and 26.  The plaintiff took up work as a nurse’s assistant in 1979.  She was injured in 1990 but returned to work after some months.  She injured her right shoulder and lower back working at a nursing home in September 1995.  She says that she experienced depression following this injury and could not return to work.  It was in the context of this injury and depression that she was referred by her general practitioner to Ms Bretag, whom she first consulted on 27 February 1996 and on several occasions ending with a consultation on 25 September 1996.  Ms Bretag referred her to Dr Atchison.  The plaintiff swears that it was not until her consultation with Ms Bretag in September 1996 that she became aware of a link between her symptoms and her experiences at Karrala House. 

[22] In July 1993, the plaintiff had made a Freedom of Information application to the Queensland Department of Family Services to obtain records of her childhood.  Her evidence is that “I felt I didn’t know anything about myself or my childhood.  I was even unaware of whether I had contracted any childhood diseases such as mumps or measles”.  Amongst the documents produced in response to that application, were copies of newspaper articles written in and around 1968 by Mr Ken Blanch, a journalist who had visited Karrala House.  The plaintiff says she telephoned Mr Blanch in September 1996 and asked him to send her all of the newspaper clippings which he held in relation to Karrala House.  Some of the newspaper reports and articles referred specifically to the plaintiff’s treatment there.  Her evidence is that:

“On reading the clippings I was very upset.  I showed these newspaper clippings to my partner who knew nothing of my history at Karrala House prior to this point.  My partner advised me to go back to see Lesley Bretag.  After a few days I made the appointment to see Lesley Bretag. 

At my appointment with Lesley Bretag on 25 September 1996, I showed her the articles that Ken Blanch had provided.  She asked me who the articles were about.  I eventually told her that it was me.”

[23] According to the plaintiff’s evidence then, she was unaware of any causal link between Karrala House and her problems before this consultation with the psychologist in September 1996.  The defendant submits that, having regard to the evidence of her seeing Dr Lepage when in her early twenties, that “it is not possible to find affirmatively that she did not then know the material fact”.  The plaintiff was not cross-examined (although Dr Atchison was).  In my view the plaintiff’s evidence that she was unaware of this fact until September 1996 should be accepted.  It is not inherently unlikely that a person with her background and problems would fail to realise that a cause of them was her treatment at Karrala House.  This was a period of about six months within a traumatic and very unhappy childhood.  I accept that an element of her condition was that she felt unsafe and lacking in confidence to engage in any discussion of her problems and for that reason she did not do so until her consultations with Ms Bretag in 1996.  Her version is consistent with the fact that she first consulted a solicitor about the prospect of an action against the State of Queensland at the end of October 1996. 

[24] The question then is whether she ought to have known of this fact earlier.  A material fact is within a person’s means of knowledge if:

“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.” 

The reasonableness of the steps taken by an applicant to ascertain a material fact must be assessed on an objective basis, but with regard to the background and situation of the applicant: Castlemaine Perkins Limited v McPhee [1979] Qd R 469; Randel v Brisbane City Council [1984] 2 Qd R 276 at 285.  Some of the relevant facts of the plaintiff’s background and situation have already been mentioned.  According to Ms Bretag, the plaintiff’s low self esteem led the plaintiff to believe that she may have been in some way responsible for her treatment at Karrala House and that this “self-blame is often a feature of children who have been abused”.  The plaintiff says that “I never blamed anyone for who I was.  I just assumed and accepted that was the way I was”.  The effect of the plaintiff’s evidence is that she had not considered whether any person was legally responsible for any of her problems, let alone what enquiries should be made in that respect.  Again, I accept the plaintiff’s evidence that she did not consider those matters:  the evidence is not inherently improbable and the defendant chose not to test it by cross-examination.  The plaintiff’s inadvertence to these matters was a consequence of her condition, and probably also of her limited education. 

[25] In many cases under s 31, the reasonableness of the plaintiff’s steps to ascertain material facts is assessed in a situation where the plaintiff is exploring whether there is a right of action and evidence to support it.  The person is expected then to take steps to see whether there is a worthwhile right of action, and the question is whether he or she could reasonably be expected to take a certain step, which if taken, would reveal the decisive fact.  The reasonableness of the step is assessed by asking whether a person who was or should have been investigating the prospects of a successful action, should have taken that step.  In other cases, the person has simply not adverted to whether someone is legally responsible for his or her problems, and the person is not and need not be investigating a potential action, because a reasonable person in his or her particular situation would not necessarily do so.  In that type of case, no step to ascertain a fact may be reasonably expected.  A particular step may then be a reasonable one in a case of the first kind, but not in a case of the second kind.

[26] The difference is explained by Mahoney JA in Royal North Shore Hospital v Henderson (1986) 7 NSWLR 283, in which a plaintiff successfully applied, under the then New South Wales equivalent of s 31, for an extension of time in which to sue a hospital from which he had received an overdose of radiation.  That had resulted in some immediate symptoms of injury to the skin of his arms causing extensive scarring and susceptibility of problems from any injury to that area.  Although that plaintiff knew of those problems, he did not know until many years later that the overdose of radiation would also lead to a condition of radicular myelopathy, an extremely serious disease.  In the view of Mahoney JA, the plaintiff’s symptoms, quite apart from the myelopathy, were sufficient to warrant an action against the hospital.  But Mahoney JA concluded that it was not within the plaintiff’s means of knowledge before the critical date that even those symptoms had resulted from negligence.  That was because, in his view, the fact of negligence was not within the plaintiff’s means of knowledge.  The statute contained a provision in like terms to s 30(1)(c).  At 298-299, Mahoney JA said:

“By November-December 1982, the plaintiff knew that he had a double dose of radiation, that it had caused the burns and scarring which he had suffered, and that it was one of a number of possible causes of what Dr Polgar, perhaps mistakenly, thought was then his major problem, viz, brachial plexis lesion. But he did not know one fact essential to his cause of action, viz, that these matters had resulted from a lack of proper care on the part of the Hospital. He is to be taken to have had that fact within his means of knowledge if it was ‘capable of being ascertained by him’ and, as I construe s 57(1)(e), it would have become known to him if he had ‘taken all reasonable steps to ascertain’ it.

It would, of course, have been possible for the plaintiff to take steps which would have revealed that the Hospital had not taken the necessary care. But, in considering whether a plaintiff has, within s 57(1)(e)(ii), ‘taken all reasonable steps to ascertain’ a relevant fact, it is necessary to determine whether, within the provision, the steps which he could have taken but did not take were ‘reasonable steps’. The phrase ‘reasonable steps’ may have at least two significations. A particular step not taken may not fall within ‘reasonable steps’ because, in the circumstances, it was not reasonable to expect the plaintiff to take any steps at all; or it may not fall within the phrase because, though he could reasonably be expected to take some steps, the step in question could not reasonably be expected of him. The latter is, perhaps, the meaning ordinarily to be given to the phrase but it may, I think, also include the former. In the present context, I do not think it was intended that a fact should be taken to be within the means of knowledge of a plaintiff when it would not have been reasonable to expect him to take any steps at all.  

In my opinion, having regard to what the plaintiff knew in November- December 1982 and the circumstances in which he knew it, I do not think that it would have been reasonable to expect that he should have taken the steps necessary to ascertain whether the Hospital had, in 1972, failed to exercise the appropriate care. At that time the question whether what had happened had been due to lack of care, and such lack of care as would constitute legal negligence, had not arisen. For the reasons to which I have referred, what the plaintiff had been told did not raise that question in his mind. It would, in my opinion, be necessary to assume that the plaintiff knew or should have known more as to the law and as to radiation therapy and the significance of what he had been told to raise such an issue in his mind. The plaintiff did not know, and I am not prepared to assume that he should have known, that, for example, such burns and scarring as he suffered were apt not to occur without the relevant lack of care or that a double dose of radiation relevantly raised the question of lack of care. These are matters which were not explored in detail with the plaintiff or with medical experts and, bearing in mind problems of onus such as may arise under s 57(1)(e), I am of the view that the present question should not be approached upon the basis that the plaintiff should reasonably have adverted to such matters.  

In this regard it is, I think, to be noted that, in determining what is ‘reasonable’ for this purpose, the Act does not require that it be assumed that the plaintiff would have taken advice. There is a distinction in this regard between s 57(1)(e) and s 57(1)(c). Whether it would have been reasonable to take advice and what steps thereafter would have reasonably been taken must be determined by reference to the particular plaintiff or, possibly, by reference to him as a reasonable person.   

In my opinion, therefore, it was not until a subsequent date that the circumstances were such that it would have been reasonable for the plaintiff to take steps to ascertain that the Hospital had, in 1972, failed to take proper care. On this basis, the requirements of s 58(2)(a) are satisfied and it is proper that an order be made under that subsection.”

[27] Similarly in the present case, had the plaintiff enquired of the causes of her problems by consulting a psychiatrist or a psychologist as she did in 1996, it seems at least likely from the reports of Dr Atchison and Ms Bretag that she would have learnt of the connection with Karrala House.  But the question of whether the plaintiff has taken “reasonable steps to find out the fact” must be answered in this case by asking whether it was reasonable to expect her to have taken any steps at all.  The defendant’s submission is that any reasonable person would have taken steps to identify the cause of her problems, because of Dr Lepage’s advice.  That advice, of course, was not in the context of exploring the existence of a right of action.  It was medical advice which it appears that the plaintiff did not accept because she “did not feel sufficiently safe or confident to engage in any identification or discussion”.  Would any reasonable person, with her history, condition and personal circumstances, not have undergone further treatment to identify the cause of her depression?  In my conclusion, that was not the only reasonable course to be expected of a person with her history and condition and in her then circumstances.  The difficulty in accepting the defendant’s submission is that it overlooks certain elements of her condition which made her afraid to discuss her problems.  Her avoidance of that further treatment at that time by simply getting on with her life was not unreasonable.

[28] The circumstances here are distinguishable from those in Carter v The Corporation of the Sisters of Mercy of the Diocese of Rockhampton & Ors [2001] QCA 335.In that case, the applicant had been receiving treatment on a frequent basis from a psychiatrist in the months leading up to the critical date, from which McPherson JA said that it “would have been a reasonable step for her on the occasion of those consultations for her to ask what caused her recurring states of depression” and that “there is no evidence that she did not do so or of what response she might have received if she did”.  There were also doubts expressed by McPherson JA[2] and Muir J[3] as to whether the applicant had disclosed to the court all of her medical history, which compounded her difficulties in discharging the onus upon her under s 31.  And in that case, the abuse which was the subject of the proposed proceedings had occurred over a period constituting most of her childhood whereas in the present case, the relevant offence occurred over about six months in a childhood involving a series of abuses perpetrated by several people in several places.

[29] In my conclusion, treatment to identify any cause or causes of her depression was not a step which any reasonable person, with her particular condition and circumstances, must have taken.  It was not reasonable to expect her to have taken any steps to ascertain the relevant fact.  I find that the material fact was not within her means of knowledge until after the critical date. 

Evidence of the right of action

[30] The plaintiff must show that there is evidence to establish the right of action apart from a defence founded on the expiration of the limitation period: s 31(2)(b).  In Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 at 434-435, Macrossan CJ said that the evidence need not at this stage be in a form which would be admissible at trial and that the requirement imposed by s 31(2)(b) will be met if the applicant can point to the existence of evidence which, it can be reasonably expected, will be available at the trial and which will, if unopposed by other evidence, be sufficient to prove his or her case.  The defendant submits that the plaintiff does not demonstrate that there is evidence to establish two essential elements of her right of action.  The first is that the defendant was in breach of any duty, or that there was a breach by anyone for whom the defendant is vicariously liable.  The second is that the plaintiff’s condition was caused by her time at Karrala House. 

[31] It is convenient to deal first with the second of those matters.  The evidence is that the plaintiff has severe claustrophobia which is wholly attributable to these matters, and has other psychiatric problems to which the present matters have substantially contributed.  The claustrophobia in itself is a serious condition which has substantially affected the plaintiff’s enjoyment of life.  In my view, Dr Atchison’s evidence well satisfies the requirement of s 31(2)(b) in relation to this element of the right of action.

[32] The defendant submits that there is insufficient evidence to establish that any duty was breached, because the plaintiff “must show that the treatment of her was negligent according to the standards prevailing at the time”.[4]  It argues that there is no evidence to support a finding of negligence and that indeed the available evidence demonstrates that there was no breach. 

[33] Any change in community standards is not said to be relevant to the existence of the duties which the defendant admits were owed.  The statutory duty under s 65 reflected a community standard, as would the common law duty which the defendant agrees was owed.  The relevant “standards” at the time required at least the performance of those duties. And at least in relation to the claim in negligence, the defendant must accept that the relevant measure of the performance of the duty is that of reasonableness.  That measure must be applied according to the relevant facts and circumstances as they were in 1968.  It would be wrong to assess the Director’s treatment of the plaintiff as negligent, if any unreasonableness appears only from a change in community standards since the events in question.[5]  The relevant facts and circumstances of 1968 include what was then known or understood in relation to the welfare of children, and in particular as to the risks to their health from their being disciplined or otherwise treated in certain ways.  The extent of what was then known is a factual question which could not be answered simply by reference to what is now known.  And in the assessment of whether the treatment of the plaintiff was a reasonable response to the duties owed to her, it would be necessary for the trier of fact to avoid the benefit of hindsight. 

[34] Nevertheless, at least for the negligence claim, the relevant question would remain that of what was reasonable, which would not be determined simply by asking what was done at the time.  Those involved with the care of the plaintiff may have believed that it was in her own interests that she be treated in a certain way and kept under certain conditions, and that belief may have reflected a more general view within the Department at the time.  But the question of whether at least a common law duty of care was breached is one to be answered not simply by reference to what was done at the time, but by determining whether it was what should have been done in the circumstances.  If there was a then foreseeable risk of an injury or illness of this kind, then according to the (admitted) duty of the Director, he was bound to take reasonable steps to protect the plaintiff from it.

[35] Although the events occurred so long ago, in this particular case there is little scope for controversy as to the facts of the actual conditions at Karrala House, the treatment of the plaintiff while she was there and the reasons for that treatment.  This is at least partly because the specific treatment of the plaintiff at Karrala House was the subject of public debate at the time.  As I have mentioned, Mr Blanch wrote a series of newspaper articles about Karrala House, some of which discussed the details of the plaintiff’s treatment.  This caused persons within the Department to prepare written responses, such as briefing papers for the Minister, which addressed point by point Mr Blanch’s reports and comments, including those relating to the specific circumstances of the plaintiff.  The newspapers published photographs, which are still available, of Karrala House showing the interiors of the rooms in which the plaintiff says that she was kept in solitary confinement.  And there are other Departmental records still available, including what is described as the “punishment book”.  This is a handwritten record of the punishment of residents at Karrala House in which details were inserted under five columns respectively headed “Date”, “Name”, “Crime”, “Action Taken” and “Days in Security”.  It contains entries relating to the plaintiff which are dated 21 April, 22 and 28 May and 31 July 1968.  Read with the Departmental documents, it provides a record of precisely where the plaintiff was accommodated within Karrala House at various times and the reasons why she was kept in one room or another.  In this particular case then, there is an unusually detailed record of her treatment and the reasons for it.  That is not to suggest that the accuracy or fairness of everything then written by Mr Blanch is indisputable.  But what I would describe as the primary facts as to the physical environment at Karrala House, the details of the plaintiff’s accommodation and discipline and the Department’s perceived justification for it, could not be genuinely in issue once the defendant’s own records are considered.    

[36] Karrala House was a brick building surrounded by a high barbed wire fence and situated within the grounds of the Ipswich Mental Hospital.  The building was divided into two distinct areas, known respectively as the “privileged” and the “unprivileged” sides.  There were four rooms in the unprivileged side, numbered 9 to 12 and known as the “security rooms”.   They were small rooms with very little furniture.  Room 9 for example was approximately 10 feet square.  The rooms were furnished with a bed, a blackboard and a rubber receptacle covered with a cloth which was the toilet.  A large wooden shutter had been placed over all but the highest part of their windows, preventing a view outside and affecting the amount of natural light and fresh air. There was an electric light which was operated from outside the room.  Whilst a girl was in this unprivileged side, she was allowed no contact with other girls.

[37] The system at Karrala House aimed to encourage good behaviour by the prospect of the grant or loss of privileges.  Rooms on the unprivileged side were deliberately made less comfortable than those on the privileged side.  And there was a range of privileges or lack thereof which applied to those girls living within the privileged side of the building.  Girls on the unprivileged side were allowed two or three showers per week and spent the day in their rooms.   In the privileged section, girls performed chores for an hour each day but were not allowed to talk to each other whilst doing so.  Some girls in the privileged side were allowed some recreation time in each other’s company and to use a room known as the recreation room. 

[38] According to the punishment book, when the plaintiff arrived at Karrala House on 21 April 1968 she went straight into Room 9, for the recorded reason that she was an “absconder”, which plainly is a reference to why she was taken to Karrala House having run away from the place at Wooloowin where she had been housed.  Her next entry, on 22 May 1968, records that she was insolent to staff and that she shouted and spat through the security grill on the window of her room.  The entry of 28 May records that she swallowed buttons, which other records show were her pyjama buttons.  The entry on 31 July records that she was “restless and defiant” in the recreation room and that she was “banging machines” there.  From a memorandum by the Director to the Minister dated 16 October 1968, written as a response to one of Mr Blanch’s articles, it appears that there was a period of 88 days from 21 April to 18 July before the plaintiff was first allowed into the recreation room.  During those 88 days, she was either kept in the unprivileged side where she was allowed no contact with other girls, or she was housed in the privileged side but her contact with other girls was only when performing work, during which girls were not permitted to speak to one another.  She was in the unprivileged side from 21 April until 30 May when she was transferred to the privileged side and to Room 1, where it is recorded that she was given “all privileges except bed stead and recreation room”.  While she was within this privileged side from 30 May, it is recorded that she was able to mix with other girls “for an hour a day doing chores”.  The Punishment Book shows “88 days” under “Days in Security” in her entry for 28 May.  It also records that on 31 July, she was given another five days “in security” for her behaviour in the recreation room. 

[39] There is room for debate then as to whether, for each of the 88 days in which the Departmental records show her as being “unprivileged” or “in security”, she was kept in what could be fairly described as solitary confinement.  But the facts themselves, as distinct from their characterisation, are clear.  On any view she was kept alone in a room, without any contact with other girls, for nearly six weeks, and for another seven weeks her only contact with her peers was when doing work for an hour a day, during which casual conversation was not permitted.  For about three months then she was denied any recreation outside her own room and any recreational or social contact with her peers. 

[40] According to Dr Atchison, this treatment is the cause of the plaintiff’s claustrophobia.  On her evidence, at least according to what is now known by psychiatrists, there would be a foreseeable risk of some mental impairment from treating a child in this way.  Dr Atchison, who was cross-examined, was not asked to say whether it was only through an advance in psychiatry since 1968 that a connection between treatment of this kind and depression and claustrophobia has been recognisable. There is nothing to indicate that Dr Atchison’s opinion is the result of any recent break through in psychiatry.  The evidence indicates that there was some medical opinion at the time which was critical of the conditions at Karrala and warned of a risk of this kind.[6]  I conclude that there exists evidence which it can be reasonably expected will be available at the trial, which would prove that according to what at least some psychiatrists then knew, there was a foreseeable risk of mental impairment from this treatment. If this risk was foreseeable, then according to the admitted duty, the Director was obliged to use reasonable care to avoid it.  It could not be suggested that those concerned with the welfare of children requiring the State’s care and protection should be oblivious to any relevant and available medical advice.  In principle, the cost of protective measures would affect what was reasonably required, but the conditions at Karrala House were by design and as yet, there is no pleaded case or submission that the conditions were the result of limited resources.

[41] On 1 November 1968, (shortly after the plaintiff’s term there) the Director wrote to the Director-General of the Department of Health and Medical Services attaching what was said to be a detailed statement of proposed changes at Karrala House.  The nature of the recommended changes adds support to the plaintiff’s case that the institution had been operated in a way which could be fairly criticised by the standards of the time.   One recommended change was that Karrala House should “change in character from a detention centre for recalcitrant girls to a youth hospital for the care and treatment of emotionally disturbed girls who have appeared before the Children’s Court and for the reception of girls on remand.  It will be an “assessment, remand and treatment centre”.  The assessment and treatment will be predominantly Child Guidance”. 

[42] Against this the defendant submits that the evidence is to the effect that there was no negligence.  The first piece of evidence relied upon for this submission is a statement by Ms Aileen Mortimer, who was employed at Karrala House as a nursing sister at the time.  To a large extent that evidence confirms that the physical conditions at Karrala House were as I have described.  Ms Mortimer explains many features of the treatment at Karrala on the basis that these were necessary to preserve discipline and to protect some girls from others or even from themselves.  For example, she says that the reason for the placement of shutters over the windows inside the unprivileged rooms was to prevent girls from breaking the glass in the windows.  Her evidence also challenges some parts of the plaintiff’s Statement of Loss and Damage, in which the plaintiff complains about the standard of food and hygiene.  But the essence of the plaintiff’s case is that she was kept in what she describes as solitary confinement.  The evidence of Ms Mortimer as to the physical conditions at Karrala differs from the plaintiff’s case only in respects which are likely to be insignificant.  More importantly, it is not evidence which negates the evidence essential to the plaintiff’s case, which is that for weeks on end she was kept locked in a small room without contact with other children.

[43] The defendant also points to certain reports or documents written in October 1968 by Departmental officers in response to a visit to Karrala House by Mr Blanch.  One is a report signed by the Director dated 11 October 1968 in which he says in relation to the plaintiff that she “was one of the most difficult girls with which this Department has had to deal” and that “the records clearly indicate that protective measures had to be taken, not only for the girl herself, but also for other girls in Karrala House”.  The recorded justification then for the plaintiff’s treatment was that she was an unusually difficult case who had to be kept as and where she was, at least for the protection of others.  Again however, this evidence does not deny the plaintiff any substantial prospect of success.  The plaintiff may have been especially difficult to manage, but if there was a then foreseeable risk of harm of the relevant kind, the treatment of the plaintiff may yet have been unreasonable in the context of duties to protect the plaintiff’s welfare.  And the Director’s description of the plaintiff must be read with the specific records of her misconduct.  The punishment book shows that the plaintiff was kept in the unprivileged section from the time of her arrival on 21 April for absconding from her previous home, at least until her first recorded “crime” at Karrala which was on 22 May and involved insolence, shouting and spitting.  I am not suggesting that there is no defence to this case, but the particular evidence which is said to preclude a finding of negligence or breach of duty, although relevant, does not provide a compelling answer to it. 

[44] In my conclusion there is sufficient evidence to establish the right of action for the purposes of s 31(2)(b).  I turn now to the principal submission by the defendant, which is that the passage of time will cause real prejudice to a fair trial.

Prejudice

[45] It is submitted that the delay has deprived the defendant of witnesses who could have spoken “first hand” on two key issues.  The first of those is said to be “what happened to the plaintiff at the time and why she was treated as she was”.  The second is whether or not that treatment was negligent, according to the “standards prevailing at the time”. 

[46] The defendant’s submission identifies a number of persons, who are now deceased, who could have given evidence as to one or both of these issues.  They are persons identified by the particulars sought and obtained in relation to paragraph 7(a) of the Statement of Claim which is set out earlier in this judgment.[7]  The defendant asked for particulars of “the names, gender and position of employment of the persons through whom the Director caused, allowed or permitted the plaintiff to be held in solitary confinement”.  In response, the plaintiff provided particulars naming five persons, including Ms Mortimer and referring also to “such other person or persons who signed or initialled the punishment book”.  Apart from Ms Mortimer, the persons named or described in the particulars are deceased.  From this it is strongly submitted that there is significant prejudice to a fair trial.

[47] Whether that is so must be assessed by reference to the issues identified by the defendant, the first of which is “what happened to the plaintiff at the time”.  In my view there should be no significant controversy as to what in fact happened to the plaintiff.  As I have said, from the fact that the plaintiff’s case received so much publicity at the time came a number of Departmental records which provide an unusually detailed account of  in what room and with what privileges the plaintiff was kept on any day during her time at Karrala House. 

[48] As to the issue of why she was treated as she was, again, the Departmental records show the recorded justification for her treatment, which was that she was an unusually bad case requiring particularly strict discipline.  The facts of her misbehaviour are documented.  A trial of this case would not be to determine the fairness of those who disciplined the plaintiff.  It would be concerned with whether those for whom the defendant is responsible unreasonably exposed the plaintiff to psychiatric harm by disciplining her in this way.  There seems little doubt that those who implemented the plaintiff’s punishment believed that she should be treated in that way.  The defendant is not worse off by not having those witnesses to say that they acted in good faith, and the contrary suggestion is not part of the plaintiff’s case as pleaded.  Nor does the defendant need those witnesses to show the misconduct for which she was disciplined.  Accordingly, I do not see that the defendant is prejudiced by the unavailability of witnesses who could have spoken as to why the plaintiff was treated as she was.

[49] Then it is said that these witnesses could have spoken as to whether or not the treatment was negligent, according to the then prevailing standards.  Undoubtedly those witnesses could have given evidence as to the then prevailing practices at Karrala House, but the fact of those practices is not controversial.  Two of these witnesses were doctors although neither appears to have been a psychiatrist.  As I have discussed, it would be necessary on any trial of this case for the court to consider whether there was a foreseeable risk of mental impairment from such treatment according to what psychiatrists then knew.  But that is a factual question for which none of the now deceased witnesses was likely to have been important or indeed competent.  If it is the case that such a risk is now foreseeable, but that this has come from a break through in psychiatry since the events in question, there ought to be ample evidence available on that matter and the unavailability of these persons would not affect the outcome. In my view then the absence of these persons as witnesses would occasion no significant prejudice to a fair trial. 

[50] Importantly, it is not submitted that there would be a difficulty in obtaining evidence as to the development of psychiatry as at 1968 and in particular as to what was then within the knowledge of psychiatrists as to the potential risks of this treatment. 

[51] There is no other respect in which the defendant says that it would be prejudiced.  For example, it does not complain that with the passage of time, and given the many traumatic events in the plaintiff’s life, that it is now disadvantaged in relation to the issue of whether this period in her life caused any of her problems.  I do not overlook the fact that a substantial delay can result in prejudice to a fair trial although the particular prejudice can be sometimes difficult to identify.  In particular, there is McHugh J’s warning in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551 that “prejudice may exist without the parties or anybody else realising that it exists”.  I also would keep in mind what Muir J said in Carter v Corporation of the Sisters of Mercy at [37] as to the difficulty for a tribunal imbued with contemporary values and perceptions in determining questions of fact as to what occurred 30 or more years ago. 

[52] But in this case as the plaintiff’s treatment and the reasons for it are unusually well documented and ought not to be controversial.  And as the alleged duties and the vicarious liability of the defendant for any breach of them are also admitted, the liability of the defendant will turn upon an assessment of the reasonableness of the conduct complained of, assessed against the evidence of what was then known of the risks.  It is that last matter which could involve a substantial inquiry as to the facts and circumstances of 1968.  As to that, what was known by psychiatrists in 1968 should still be readily capable of proof.  It is for the plaintiff to establish a lack of prejudice to a fair trial, but it is notable that the defendant offers no evidence or submission that it would be prejudiced in relation to that particular factual question. 

[53] Accordingly, I am satisfied that there is no significant prospect of prejudice from the substantial time which has passed from the events in question.  In my view the application should succeed and it will be ordered that the period of limitation be extended until 12 March 1997.