VMT v The Corporation of the Synod of the Diocese of Brisbane
[2007] QSC 219
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- Notable Unreported Decision
- VMT v The Corporation of the Synod of the Diocese of Brisbane[2007] QSC 219
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VMT v The Corporation of the Synod of the Diocese of Brisbane[2007] QSC 219
VMT v The Corporation of the Synod of the Diocese of Brisbane[2007] QSC 219
SUPREME COURT OF QUEENSLAND
CITATION: | VMT v The Corporation of the Synod of the Diocese of Brisbane & Anor [2007] QSC 219 |
PARTIES: | VMT |
FILE NO: | BS1976 of 2004 |
DIVISION: | Trial |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court of Queensland |
DELIVERED ON: | 22 August 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 6 August 2007 |
JUDGE: | Lyons J |
ORDER: |
|
CATCHWORDS: | LIMITATION OF ACTIONS – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – where teacher who sexually abused students was provided a favourable employment reference by the respondent – where teacher subsequently secured employment in State school system and sexually abused the applicant – where applicant discovered the fact of provision of the reference 27 years after the fact – whether applicant should be granted an extension of time to bring proceedings LIMITATION OF ACTIONS – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – where applicant instituted proceedings against respondent 24 years after cause of action arose – where applicant relies on s 31 Limitation of Actions Act 1974 – whether there was a material fact of a decisive character which was not within the means of knowledge of the applicant – whether there is evidence to establish the applicant’s right of action Limitation of Actions Act 1974, s 30, s 31 Personal Injuries Proceedings Act (Qld) 2002, s 43(1) Agar v Hyde [2000] HCA 41, applied Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 139 ALR 1, applied Cousins v Mt Isa Mines Ltd [2006] QCA 261, applied Donoghue v Stevenson [1932] AC 562, cited Dorset Yacht Company Ltd v The Home Office [1970] AC 1004, considered Ellis v Pell [2006] NSWSC 109, considered Harriton v Stephens [2006] HCA 15, applied Hawkins v Clayton (1988) 164 CLR 593, considered Modbury Triangle Shopping Centre P/L v Anzil [2000] HCA 61, distinguished Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325, applied Spring v Guardian Assurance Plc & Ors [1995] 2 AC 196, distinguished Voli v Inglewood Shire Council (1963) 110 CLR 74, cited Waller v James [2006] HCA 16, cited Wood v Glaxo Australia Pty Ltd [1993] QCA 114; [1994] 2 Qd R 431, applied |
COUNSEL: | R Myers for the applicant RS Ashton for the respondent JR Rolls for the third party |
SOLICITORS: | Shine Lawyers for the applicant Minter Ellison Lawyers for the respondent Crown Law for the third party |
Background
- LYONS J: The applicant is currently 33 years of age. From the age of eight, while she was a student at Harlaxton State School (operated by the State of Queensland, the third party) she was sexually abused by a teacher at the school Tony Jenner Strudwick.
- The applicant seeks, pursuant to s 31 of the Limitation of Actions Act 1974 (“the Act”), an extension of time within which to bring these proceedings against the respondent, the Corporation of the Synod, which conducted the Toowoomba Preparatory School and had employed Strudwick prior to his commencing at the Queensland Department of Education. On 5 March 2004 the applicant was granted leave by Muir J to commence proceedings against the respondent for damages for personal injuries allegedly occasioned in consequence of the respondent’s negligence pursuant to s 43(1) of the Personal Injuries Proceedings Act (Qld) 2002. On 17 March 2004 the applicant filed a Claim and Statement of Claim and the defendant filed its Notice of Intention to Defend and Defence on 18 April 2007. On 15 May 2007 the respondent issued a third party notice directed to the State of Queensland. There has been no application to strike out the plaintiff’s statement of claim.
The plaintiff’s claim
- In her claim the applicant alleges that Strudwick was employed as a teacher at the Toowoomba Preparatory School and that in late 1980 Robert Brewster who was the headmaster of the school, was approached by the mother of two female students with a complaint that Strudwick had inappropriately touched her daughters. As a result of the complaint the headmaster arranged a meeting with Strudwick and confronted him with the allegations. Strudwick tendered his resignation from the school which was accepted.
- Strudwick however was provided with a written reference dated 10 September 1980 by the headmaster Brewster. This reference was in very positive terms and stated that he left the school with the school’s blessing and that:
“He has also captured the enthusiasm of his pupils demonstrating at all times his deep concern for their welfare and progress as well as maintaining the highest possible standards”.
- The reference did not disclose the allegations of misconduct and Strudwick applied for employment as a teacher with the Queensland Department of Education. On 12 September 1980, two days after the reference was given, he was interviewed by two employees of the Department. He was classified as being suitable for employment and commenced employment with the Department of Education on 6 October 1980 and was employed at several schools in the Darling Downs area.
- From 7 March 1983 to 25 August 1998 Strudwick was employed as a teacher at the Harlaxton State School. The applicant was a student at the Harlaxton State School from 1980 to 1986 and Strudwick was her teacher from 1983. From 1983 to 1992 Strudwick sexually abused the applicant.
- The applicant essentially claims that the provision of the reference by the headmaster enabled Strudwick to secure employment as a teacher with the State of Queensland. This employment then brought him into contact with the applicant three years later and the abuse commenced. The applicant therefore claims that there was a breach of a duty owed by the respondent to the applicant and as a result of the breach of that duty she was sexually abused. The applicant claims she has been significantly injured as a result of this breach. The evidence indicates that she suffers from the chronic static psychiatric illnesses of post-traumatic stress disorder and dysthymic disorder. The applicant alleges that the breach of duty caused the post-traumatic stress disorder which she suffered as a result of the sexual abuse.
This application
- The essential question in this application is whether an extension of time within which to bring proceedings should be granted given that the headmaster’s reference was given some 27 years ago and the abuse commenced some 24 years ago.
Legislation
- Section 31 of the Act provides:
“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 the 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.
Was there a material fact not within the means of knowledge of the applicant?
- The applicant submits that the requirements of s 31 have been satisfied because on 20 March 2003, she discovered for the first time that Brewster had written a reference for Strudwick when she read a newspaper article to this effect. The article also revealed that Brewster had written this reference despite knowing of the inappropriate interference with two female children and despite his concern for the welfare of students at the Toowoomba Preparatory School. This reference had also been provided despite the fact that Strudwick’s employment at the school had been effectively terminated.
- The applicant submits that it was only on the acquisition of this knowledge that she became aware for the first time of “a material fact of a decisive character relating to the right of action”. It was the acquisition of this knowledge that disclosed for the first time the identity of the person against whom the right of action lies as defined by s 30(1)(a)(ii) of the legislation. The applicant states that a right of action was not known to exist until the fact of the provision of the reference came to her knowledge.
- On the facts I accept that the provision of the reference was not a fact within the applicant’s means of knowledge until the publication of the newspaper article on 20 March 2003. The applicant’s action was commenced out of the Toowoomba Registry of the Supreme Court on 17 March 2004 which was then within the twelve month period required by s 31(2). The question is, however, whether the fact of the reference is a material fact of a decisive character?
Was this fact of a decisive character?
- Having accepted that a material fact was not within the means of knowledge of the applicant the real question that must be answered in relation to whether the fact is of a decisive character is whether because of the fact the action has a reasonable prospect of success. As Macrossan J stated in Moriarty v Sunbeam Corporation Limited:[1]
“In cases like the present, an applicant for extension discharges his onus not simply by showing that he has learnt some new fact which bears upon the nature or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it. He must show that without the newly learnt fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it.”
- It would seem clear that without knowledge of the reference the applicant was unaware of the possibility of an action against the respondent.
Is there evidence to establish a right of action?
- The next question is whether the applicant has a worthwhile action to pursue. Can the applicant establish that there is evidence to establish a right of action? In the present case both the respondent and the third party contend the real issue in question is whether a cause of action exists at law on the basis put forward by the applicant.
- The respondent submits that the applicant cannot establish the existence or worthwhile nature of the cause of action. The respondent submits that the applicant cannot satisfy the requirement in s 31(2)(b) because there is no cause of action and that even if a cause of action does exist at law on the basis postulated, the applicant cannot “point to the existence of evidence which it can reasonably be expected will be available at the trial and will, if unopposed by other evidence, be sufficient to prove her case.”[2]
- The respondent in essence contends that the applicant cannot establish that the respondent owed a duty to her because she was a potential student of Strudwick or someone with whom he would come in contact as a consequence of his obtaining employment as a teacher. The respondent states that the applicant’s case is afflicted by several problems. First they submit there is the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits and the second difficulty is the fact that the harm suffered by the applicant was directly caused by the criminal conduct of a third party. The third party also submits that there was no duty of care capable of being owed by the respondent to the applicant and also submits that the applicant will have difficulty in establishing that the State relied on the reference in employing the teacher.
- The problem therefore the respondent submits is the difficulty posed by the threat of indeterminate liability as discussed in Waller v James[3] and that this is therefore a sound basis for denying the existence of a duty of care including in personal injuries cases. The respondent states that the difficulty the applicant has is that it is incumbent on her to establish a breach of an independent duty owed to herself as a particular individual. The respondent submits that what the applicant is trying to establish is impossibly wide. Whilst the decision of Spring v Guardian Assurance Plc & Ors[4] establishes that there is a duty owed by former employers in giving references that duty is confined to those cases where the reference is addressed to an identified recipient and the cases have not gone beyond the possibility of a duty being owed by the former employer to the former employee about whom the reference was written or the identified person to whom it was addressed.
- The respondent contends that the written reference which is relied upon as the centrepiece of the applicant’s case is not addressed to the Queensland Department of Education or to anyone in particular. The number of potential employers to whom Strudwick therefore might have made application is limitless and therefore the question is was the duty owed to all persons and institutions which operated schools public or private.
- Furthermore, it is submitted by the respondent that the class of which the applicant claims membership, which is that of potential students, is even more indeterminate than the class of potential employers. The respondent submits that the duty the applicant is relying on would appear to have been owed to “an indeterminate number of students and an indeterminate number of schools in an indeterminate number of places for an indeterminate period of time”. The respondent therefore submits that the indeterminacy of the liability contended for underlies the absence of any proximate or special relationship between the applicant and the respondent. The respondent therefore submits that there is not even proximity in the relationship between the parties. In particular the applicant was never a student at the respondent’s school and she was never known to the respondent. Therefore the respondent submits there is no relationship between them at all.
- The respondent also submits that the mere foreseeability of harm does not cure a problem of indeterminacy and is not of itself a sufficient basis on which to elect a duty.
- The respondent also relies on the decision in Modbury Triangle Shopping Centre P/L v Anzil[5] that in the absence of a special relationship between a plaintiff and defendant, a defendant is not liable for the criminal conduct of third parties. The respondent submits that it is not sufficient that the alleged negligence may have facilitated the third party’s criminal conduct but that the applicant also needs to establish that the provision of the reference caused her injury.
- The applicant’s case relies on the submission that the Synod of the Church that ran the school, through the headmaster, had a duty of care to the Department of Education to provide an accurate reference, particularly in relation to Strudwick’s relationship with children. The applicant submits that there is at least a prima facie presumption that the Department of Education relied on the accuracy of the reference in employing Strudwick.
- The applicant submits that in reliance on Spring v Guardian Assurance Plc & Ors,[6] if the Department of Education had suffered loss then the Synod would have clearly been liable to the Department of Education for damages for negligence having regard to the responsibility of Strudwick’s position as a teacher.
- Should this matter proceed to trial the issue will be whether in providing the reference on behalf of the respondent, the headmaster had a duty of care not only to Strudwick’s potential employer, namely the Department of Education, but also to potential students with whom Strudwick would come into contact in consequence of his obtaining employment with the Department of Education. The basis of the applicant’s case is essentially that the headmaster, being aware of the complaints of inappropriate conduct by Strudwick towards female students at the Toowoomba Preparatory School, must have foreseen that if his reference was acted upon by the Department of Education in employing Strudwick, there was a real likelihood that a student in the State education system would be harmed.
- The applicant relies on Voli v Inglewood Shire Council[7] and Donoghue v Stevenson[8] in submitting that students coming in contact with Strudwick would be “closely and directly affected” by Brewster’s act in writing a reference to the extent that Brewster “ought reasonably to have the students in contemplation as being so affected when he was directing his mind to the acts or omissions which are called in question”.
- It is clear that the applicant will face some challenges as outlined in the submissions on behalf of the respondent particularly in relation to the establishment of a breach of a duty of care. In Hawkins v Clayton[9] Brennan J stated:[10]
“When the existence of a duty in a new category of case is under consideration, the question for the court is whether there is some factor in addition to reasonable foreseeability of loss which is essential to the existence of the duty … the court may have regard to a variety of considerations: the nature of the activity which causes the loss, the nature of the loss, the relationship between the parties and contemporary community standards … established categories provide firm evidence of the kinds of factors which condition the existence of the various categories of duty.”
Similarly Lord Reid in Dorset Yacht Company Ltd v The Home Office[11] when discussing the principle of the law of negligence stated:[12]
“It is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. But I think that the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion.”
- The question to be answered in relation to whether leave should be granted is not whether the applicant will be successful, as that is ultimately a question for the trial, the question is whether there is a reasonable prospect of success. It is clear that to determine the question as to whether the question in s 31(2)(b) has been satisfied no more than a prima facie case has to be established. I consider that the giving of the reference by the headmaster in such positive terms given what he had been told about the teacher’s conduct is a matter of serious concern. The most likely use to which the reference would be put was to seek employment in a school with the consequent potential risk to students. However the full circumstances surrounding the giving of the reference will ultimately not be fully revealed until the trial.
- As Macrossan CJ stated in Wood v Glaxo Australia Pty Ltd:[13]
“If a general observation is permissible at this point it can be said that applicants for extension of limitation periods are not intended by legislation to be placed in the position where they must establish an entitlement to recover on two occasions, first on the hearing of the application and once more at the trial of the action. Although the requirements of the legislation must be complied with if an extension is to be granted, the extent to which an applicant must show a case on the hearing of the application to extend time will frequently depend on the impression on the judge’s mind of the material which the applicant presents or the existence of which he demonstrates or points to. It is nevertheless recognised as wrong to place potential plaintiffs in anything like a situation where they must on the probabilities show that it is likely they will succeed in their actions. A judge may harbour a feeling that there is a strong chance that particular applicants will fail at trial but, in my opinion, he should not act on the basis of this impression both because that is a question reserved for another occasion and because he cannot know and should not insist on being able to see in all of its ramifications the full strength of the case which will eventually be presented at trial.”
“The result is that frequently the conventional form of pleading in an action of negligence will not reveal the alleged duty with sufficient clarity for a court considering an application for summary termination of the proceeding to be sure that all of the possible nuances of a plaintiff’s case are revealed by the pleading. Further, and no less importantly, any finding about duty of care will often depend upon the evidence which is given at trial.”
- The applicant’s case is, as was the position in Wood v Glaxo, “difficult and very far from straightforward” however the question is whether there is sufficient evidence to satisfy the requirements of s 31(2)(b). As Kirby J (dissenting) observed in Harriton v Stephens:[16]
“Especially in novel claims asserting new legal obligations, the applicable common law tends to grow out of a full understanding of the facts. To decide the present appeal on abbreviated agreed facts risks inflicting an injustice on the appellant because the colour and content of the obligations relied on may not be proved with sufficient force because of the brevity of the factual premises upon which the claim must be built.”
- Furthermore whilst it is clear that the High Court in Modbury Triangle Shopping Centre Pty Ltd v Anzil,[17] acknowledged the general rule that “one man is under no duty of controlling another man to prevent his doing damage to a third” as that case related to the duty of an occupier, there are arguably some factual distinctions which take it outside of the application of the principle established in that case. In particular in that case the question related to a failure to act in the present case there was a positive act by the headmaster in providing the reference. In relation to the issue of indeterminacy it is important to remember that it is the indeterminacy of the class which is the issue and not the size of the class. Once again these are issues for the trial and cannot be appropriately explored in this application.
- An examination of s 31(2) establishes that the section actually focuses on evidence. The section is not directed to determining the precise boundaries of causes of action. The section commences with “person claiming to have a right of action”, and speaks of a “material fact…. relating to the right of action” that is claimed by the applicant and “evidence to establish the right of action”. I am not satisfied that the section actually requires the court to be satisfied that a right of action exists but rather deals with questions of evidence relating to the claimed right of action.
- On balance I consider that the requirements in s 31(2)(a) and (b) have been established. The question however remains as to whether the discretion should be exercised to allow the extension of time?
Should the discretion be exercised?
- The respondent further contends that even if the applicant satisfies the requirements of s 31 the court still retains a discretion to refuse the application and relies on the High Court decision in Brisbane South Regional Health Authority v Taylor:[18]
“… s 31 should not be read as giving an applicant a presumptive right to an order once he or she satisfies the two conditions laid out in s 31(2) of the Act. An applicant for an extension of time who satisfies those conditions is entitled to ask the court to exercise its discretion in his or her favour. But the applicant still bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.”
- The issue that is paramount in determining the justice of the case necessarily requires the court to examine the issue of prejudice and in the present case both the respondent and the third party submit that there will be prejudice. In this case the respondent’s claim against the third party arises on the basis that it is alleged that the headmaster in fact told two Department of Education employees that Strudwick had ceased employment at the school at the headmaster’s request. It would appear that one of these employees, Mr Thistlewaite, a former Regional Director of Education, died on 30 August 2001. Clearly then at least one witness is no longer available. The State also contends that due to the effluxion of time some of the records may no longer be available. However it is clear that the headmaster is still able to give evidence and the reference is on file as are other records. I also note that in the decision of Ellis v Pell[19] the events giving rise to the claim had occurred some 32 years prior to the granting of the application for an extension of time.
- It is clear that the decision of Brisbane South Regional Health Authority v Taylor[20] establishes that s 31 does not confer a right to an order once the two conditions laid down in the subsections are satisfied but rather the section confers a wide discretion upon a court to extend time and that discretion should only be exercised in favour of an applicant where in all the circumstances justice is best served by doing so.
- It is also clear that the onus is on the applicant to satisfy the court that the discretion should be exercised and that the commencement of the action beyond the limitation period would not result in significant prejudice to the prospective defendant. As Toohey and Gummow JJ held in that decision “The real question is whether the delay has made the chances of a fair trial unlikely.”[21]
- Whilst some 27 years has now elapsed I am not satisfied that there would be any real prejudice. In Cousins v Mt Isa Mines Ltd[22] Jones J in deciding a similar question stated:
“In determining what are the relevant considerations on an application of this kind, the most significance is the fact that, unless authorised, the plaintiff will be denied the opportunity to litigate his or her claim. Against that consideration must be weighed the impact of any prejudice to the respondent and whether such prejudice can be ameliorated. This would appear to be the object of s 18(2) [of the Personal Injuries Proceedings Act 2002]. It is possible that prejudice due to the claimant’s conduct might be so overwhelming as to deny the prospect of a fair trial and thus count heavily against the granting of authorisation to proceed.”
- Later at paragraph 34 his Honour said:
“But the exercise of the discretion conferred by s 18(1)(c)(iii) to authorise a claim to proceed further requires a consideration of factors of varying relevance and insight but with a consciousness that not to allow the application will deny a claimant access to the court to litigate his or her cause of action in a court. In my view, such access would be denied only in circumstances of severest prejudice.”
- Upon a consideration of all of the circumstances I am satisfied that an extension of time should be given.
Orders
- Pursuant to s 31 of the Limitations of Actions Act (Qld) 1974, the period of limitation in respect of the applicant’s claim for damages for personal injuries be extended to 18 March 2004.
- Costs reserved.
Footnotes
[1] [1988] 2 Qd R 325 at 333.
[2] Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 at 435.
[3] [2006] HCA 16.
[4] [1995] 2 AC 196.
[5] [2000] HCA 61.
[6] [1995] 2 AC 296.
[7] (1963) 110 CLR 74.
[8] [1932] AC 562.
[9] (1988) 164 CLR 593.
[10] (1988) 164 CLR 593 at 556.
[11] [1970] AC 1004.
[12] [1970] AC 1004 at 1026.
[13] [1994] 2 Qd R 431 at 434.
[14] [2000] HCA 41.
[15] [2000] HCA 41 at [64].
[16] [2006] HCA 15 at [35].
[17] [2000] HCA 61.
[18] (1996) 139 ALR 1 at 8.
[19] [2006] NSWSC 109.
[20] (1996) 139 ALR 1 at 7.
[21] (1996) 139 ALR 1.
[22] [2006] QCA 261 at [30].