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As we all may know, permanent stay of proceedings of historical abuse claims is a very live topic in this area of law currently, and it is important that both survivors and practitioners are kept up to date on the Courts decisions and commentary in these application hearings.
In this matter, the plaintiff claimed negligence in the amount of $2,201,909.13 from the defendant, the State of Queensland, as a result of psychiatric injuries caused by sexual abuse on two separate occasions when she was a child. The first, in or about the spring or early summer of 1968 around the plaintiff’s 11th birthday, is alleged to have occurred at a school operated by the State of Queensland which the plaintiff attended. The second, in 1973 when the plaintiff was 15 years old, is alleged to have occurred when the plaintiff was walking from a residence where she performed domestic work to the orphanage where she resided under the care and protection of the State of Queensland. The plaintiff’s claim in respect of the first alleged assault is based on a failure by the State of Queensland to properly monitor and supervise students at the school. In respect of the second alleged assault, the plaintiff asserts the State of Queensland breached its duty of care by failing to provide transportation from her work back to the orphanage or to take other reasonable steps to protect her from the risk that she would be assaulted as alleged.
The defendant filed an application seeking a permanent stay of the plaintiff’s (ADA, a pseudonym) proceedings. The State of Queensland submitted that:
a) The plaintiff’s allegations of sexual abuse are critical or “foundational” to the causes of action which the plaintiff has pleaded against it. It argued that any trial would not be fair because it has no way of investigating or ascertaining whether or not the alleged assaults occurred. The alleged perpetrators have not been identified and there are no other alleged witnesses to the assaults. Consequently, there is nobody from whom the State can take instructions on the foundational issue. Further, because there are no documents which address the allegations, the State has no other information it can rely upon in responding to that issue [69].
b) The lapse of time since the alleged assaults are said to have occurred means it is unable to address the allegations that it breached its duty to the plaintiff by placing the plaintiff in a position to be subjected to sexual abuse or by failing to take reasonable steps to avoid the risk of such abuse. As to the first alleged assault, the State submitted that the only persons who might be in a position to provide instructions relevant to that issue – for example, evidence as to whether anyone was aware that the older male student was in the principal’s office with the plaintiff or how long they might have been alone together in the principal’s office – are either dead (the principal) or are unable to be identified (any administrative assistant or secretary who might have sat near the principal’s office or the person who directed the plaintiff to go to the principal’s office). As to the second alleged assault, the State submitted that, in circumstances where the reasonableness of the steps which the plaintiff says ought to have been taken must be judged at the time of the alleged assault and not with the benefit of hindsight, it is now unable to ascertain what might or might not have been considered appropriate in terms of children walking unaccompanied in the area the plaintiff says the second alleged assault occurred or in terms of what might or might not have been considered reasonably required in terms of educating children about the dangers of strangers approaching them [70].
c) The nature of the plaintiff’s claimed injuries, being psychiatric injuries, requires that the effects of the alleged sexual assaults be disentangled from the effects of later life stressors, including the domestic violence and rapes which the plaintiff suffered as an adult. However, in circumstances where there are no contemporaneous treatment records available, the investigation of how and when these injuries commenced and developed, and their potential causes, is now largely precluded [71].
I accept the submission by the State that it has no way of investigating whether or not the alleged sexual assaults occurred and no way of contradicting the plaintiff’s account of those events. That is because the perpetrators of the alleged sexual assaults have not been identified or located, there were no other witnesses to either of the alleged assaults, and no relevant documents addressing the alleged assaults have been located. In these circumstances, it is correct to describe the State as being “utterly in the dark” on these critical issues [76].
I also accept that the State has been significantly prejudiced in its ability to address the plaintiff’s claim that it is liable in negligence for failing to take adequate steps to
protect her from the risk of being sexually assaulted. As to the first alleged assault, the question of the State’s liability must turn upon a consideration of the
arrangements which applied when students were sent to the principal’s office as well as the circumstances in which the plaintiff and the older male student came to be left in the office alone on the day of the first alleged assault. I am satisfied that the State is prejudiced in its ability to respond to that issue because the only witnesses who could give relevant evidence on those matters are either dead (the principal) or cannot now be identified or located (the administrative assistant sitting near the office on the relevant day or the person who directed the plaintiff to go into the office). As to the second alleged assault, it seems highly improbable that those responsible for permitting the plaintiff to walk to and from work at the Allen residence (if they could be identified and located) would now have any accurate recollection of why that was considered appropriate at that time or of what consideration might have been given to other transport arrangements for the plaintiff. Nor is it likely that such witnesses would have any accurate recollection of steps that might have been taken to educate the plaintiff about the dangers of strangers approaching her [82].
Finally, I am satisfied that the lapse of time means that the State is now prejudiced in its ability to undertake the exercise of disentangling the causative effect of the alleged sexual assaults from the effect of subsequent life stressors. There are no medical records that would permit the State to investigate the plaintiff’s psychological condition before and after the alleged sexual offences during her childhood, or her condition before and after the two separate occasions on which she was raped by members of her family, or the effect of her being exposed to domestic violence. Dr Chalk’s attribution of causation between these various events does not, in my view, support a different conclusion. His report contains no reasoning or explanation for the assessment he has made, and he acknowledges that the assessment is far from perfect. That must necessarily be the case where the plaintiff’s history upon which Dr Chalk relied to apportion the causative effect of different events in the plaintiff’s life is limited to the plaintiff’s expressed recollection of those events and their impact upon her. I do not consider that the available evidence permits any proper investigation of how and when the plaintiff’s psychiatric injuries commenced and developed [85].
Ultimately, the Queensland Supreme Court provided “…that in the circumstances of this case it would be manifestly unfair to the State to permit the proceeding to continue to trial. On that basis, I am satisfied that the State has discharged the burden of demonstrating that this is an exceptional case where a permanent stay is warranted.” [86].
The Court further ordered that the plaintiff pay the defendant’s costs of the stay application and of the proceeding to be assessed on the standard basis if not agreed.
Further updates in relation to the stay of proceedings of historical abuse cases can be found in other articles on our website written by Emily Wright and our office.
We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim in any jurisdiction in Australia, please reach out to the author, Emily Wright, at Littles Lawyers today.
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