AB v State of Queensland & Anor

This was a successful appeal against a District Court decision to refuse an application to extend time for a personal injuries claim, pursuant to ss 30 and 31 Limitation of Actions Act 1974. The appellant had been a foster carer to a 17-year-old boy (“XY”) who, she discovered, after her daughter complained of sexual abuse by him, had a history of sexual misbehaviour. In March 2020, the appellant received reports by way of disclosure which provided evidence of the Department of Child Safety’s knowledge of XY’s past misconduct prior to his placement with the appellant. In March 2021, the appellant applied for an extension of time to commence her personal injuries claim, which alleged that the respondent foster care agency and Department of Child Safety had been negligent by knowing of this history and failing to advise her. The primary judge refused the application, finding the appellant had become aware of the boy’s history shortly after the incidents with her daughter and therefore had material within her knowledge upon which to found a claim. The Court of Appeal rejected this reasoning, finding that it was only upon receiving evidence of the respondents’ knowledge of XY’s history, that her matter had sufficient prospects to be run. That evidence, therefore, was material of a decisive character. The Court of Appeal allowed the appeal and extended the limitation period.

Fraser and McMurdo and Mullins JJA

17 June 2022

Background

The appellant, a single mother, became a foster carer to a 17-year-old boy (“XY”) who was placed with her in 2006, following an unsuccessful previous placement. She was not told why that previous placement had been unsuccessful. [2]–[3]. After some months of staying at the appellant’s house, it came to light that XY had been sexually abusing her 4-year-old daughter. [1]–[8]. The abuse was reported to police who advised there was insufficient evidence for charges to be laid. [8].

After the appellant’s daughter disclosed to her more incidents of abuse, the appellant’s mental health declined. The appellant was diagnosed with Anxiety Disorder, Major Depressive Disorder, Adjustment Disorder and Post Traumatic Stress Disorder, with suicidal thoughts. [9].

Around 15 years later, the appellant commenced proceedings in the District Court for personal injury damages and consequential loss against the respondents: the foster care agency and the State of Queensland. [10]. The claims were made on the basis the respondents knew or ought to have known that XY had engaged in sexual abuse of his sister, prior to placement in the appellant’s home, and the respondents’ negligence resulted in the appellant accepting the placement “creating an unacceptable risk which eventuated”. [10].

As the appellant’s claim was outside the three-year limitation period, the appellant was required to apply for an extension of time pursuant to section 31 Limitation of Actions Act 1974 (“the Act”), which required her to show that a “material fact of a decisive character” was not within the means of her knowledge until a date after the commencement of the year last preceding the expiration of the limitation period. [11].

At first instance, the District Court judge dismissed the application. [12].

Decision of the Court of Appeal

The appellant appealed against that decision. [12].

On appeal, it was not in question that the respondents’ awareness of previous sexual abuse by XY was a material fact relevant to the appellant’s right of action. However, the respondents resisted a finding that it was a “material fact of a decisive character”. The respondents argued that the appellant’s case could be proved by showing no more than that the respondents ought to have known of the possibility of that conduct. [16].

The Court of Appeal disagreed.

Justice McMurdo (with whom Fraser and Mullins JJA agreed) distinguished the appellant’s knowledge of prior abuse allegations from her “knowledge that at the relevant time the respondents were aware of that conduct”. [25], [33].

The evidence before the primary judge demonstrated that the appellant held a belief that the respondents were aware of XY’s history but did not know or have evidence to confirm the respondents’ knowledge until the disclosure of the two reports in 2020. [40]–[42], [46].

Ultimately, McMurdo JA reasoned, even though the appellant could have pleaded a case that the respondents ought to have known of XY’s previous conduct, that case would have required an extensive factual inquiry and presented a formidable task, especially to a person in her circumstances, with her mental health. [53].

Prior to 2020, without the evidence of the respondents’ knowledge, the prospects of the appellant’s claim were poor and in her circumstances, that was a case which she ought not to have then brought. [54]. 

Disposition

The period of limitation for the appellant’s claim against the first and second respondents was extended. [56].

Z Brereton of Counsel