JUDICIAL CONSIDERATIONS OF REASONABLE CONDUCT BY SURVIVORS OF CHILD SEXUAL ABUSE
DR BEN MATHEWS*
Typical consequences of child sexual abuse, particularly post-traumatic stress disorder (PTSD), prevent many survivors of this abuse in Queensland bringing civil legal proceedings within the statutory time limit. On discovering the nature and extent of their psychiatric injury, or its connection with the abuse, survivors may apply to the court for an extension of time to allow their claim to proceed. Outcomes of these applications often turn on judgments about the survivor's knowledge of the injury and its cause, and on judgments about whether the survivor has taken reasonable steps to discover the nature, extent and cause of their injuries before actually discovering those facts. Similarly, in other Australian jurisdictions, judicial decisions about whether to extend the limitation period in these cases have to be made in part by judging the reasonableness of the survivor's conduct in ascertaining these decisive facts.
Reported cases of applications for extensions of time in this context are rare, but Queensland has an emerging body of decisions. A series of cases demonstrate that judgments about the issues of knowledge and reasonable conduct have been made without considering evidence about the symptomatology of PTSD, especially the avoidance criterion. This article summarises the consequences of child sexual abuse, focussing on PTSD, before outlining the statutory provisions. Case studies of applications by survivors with PTSD to extend time are synthesised. The psychological evidence is used as a standard against which to analyse judicial reasoning about survivors' knowledge and 'reasonable' conduct. Finally, the question of whether PTSD can constitute a legal disability is addressed. Because similar questions are raised by extension provisions in nearly all Australian jurisdictions, the analysis of these decisions has implications for future cases in both Queensland and other jurisdictions.I TYPICAL CONSEQUENCES OF CHILD SEXUAL ABUSE
The typical child sex offender is male, and is a family member or relative of the child or is otherwise known to the child. The majority of victims suffer numerous abusive acts, which commonly occur over a period of months or years. In many cases, particularly when the abuser is known, a child will make no complaint about the abuse for one or more of several reasons: being sworn to secrecy; compulsion by threats; imposed conviction of the normalness of the acts; imposed or misplaced feelings of responsibility for the acts; fear of family dissolution; fear of punishment of the wrongdoer; misplaced shame and guilt; and self-blame. Rather than disclosing the abuse, a child is likely to use strategies to cope with it.
A Psychological Injury: Short-term and Long-term
Immediate and short-term consequences for a child who is being or has been sexually abused commonly include post-traumatic stress disorder (PTSD), anxiety, depression, low self-esteem, inappropriate sexualised behaviour, and difficulty in peer relationships. Adolescents are likely to experience even higher levels of depression and anxiety than younger children because of their greater cognitive understanding of their abuse. Adolescents may also be more susceptible than younger children to self-harm and suicidal ideation and behaviour. Substance abuse and running away from home are also more frequent in adolescents than younger children. Low self-esteem continues throughout adolescence.
In the long-term, the adult survivor of child sexual abuse typically has PTSD, or depression, or both. Classical sequelae also include anxiety, shame, distrust, anger, guilt, low self-esteem, and self-destructive behaviour such as alcoholism and other substance abuse. Relationships with other adults are affected due to a negative self-concept and survivors frequently have difficulty navigating adult sexual and non-sexual relationships.
B PTSD, Avoidance of Stimuli and Therefore of Complaint and Litigation
In the legal context, the most decisive consequence of child sexual abuse for an adult survivor who has PTSD is that he or she will avoid stimuli associated with the abuse, and will avoid any situation that prompts or requires recollections of the abuse. The avoidance response is the second criterion of PTSD as defined by the Diagnostic and Statistical Manual IV-TR. PTSD has several criteria, the first three of which are particularly relevant here. First, PTSD involves the existence of an unusually traumatic event that involved actual or threatened death or serious physical injury, and the patient felt intense fear, horror or helplessness: the stressor criterion. Second, the patient repeatedly relives the event in one or more ways including recollections, dreams, flashbacks, distress responses to cues symbolising the event, and physiological reactions to these cues: the intrusive recollection criterion. Third, and most significantly here, the patient persistently avoids trauma-related stimuli, and has numbed general responsiveness, as shown by three or more factors, including: avoiding thoughts, feelings or conversations concerned with the event; avoiding activities, people or places that recall the event; and an inability to remember an important feature of the event.
Added to the difficulty of disclosing when the abuse first occurred, because of the avoidance response many survivors will need a significant period of time to develop the capacity to make even a confidential disclosure of the abuse, or a tentative foray into psychological counselling. Many survivors will never be able to disclose the abuse. Whether a survivor silently suffered the abuse as a child and takes many years to disclose as an adult, or whether a survivor complained initially but was ignored or punished, or whether a survivor had his or her complaint received but still suffered the typical consequences of the abuse, many adult survivors who eventually desire civil legal remedies will not be psychologically ready to pursue the perpetrator through the courts until some time into their 20s, 30s or even 40s. Statistics on disclosure, let alone readiness to pursue litigation, demonstrate this beyond doubt.
It is therefore a normal and reasonable response by adult survivors of child sexual abuse having PTSD to avoid any activity - including legal action - that would require detailed reliving and description of the events, adversarial testing of their account of those events, and confrontation of the perpetrator. The symptoms of PTSD mean that most survivors who ever become able to do so require an extended period of time in which to gain knowledge of facts required by law to institute civil proceedings for compensation. These facts include the facts of the personal injury, of the injuries' nature and extent, and of the causal connection between the perpetrator's abuse and those injuries.
Awareness of relevant facts is one thing; the survivor must then have resolved their PTSD symptoms to a sufficient degree to be able to institute civil legal proceedings. In both respects, PTSD is often an insurmountable barrier to adult survivors of child sexual abuse seeking access to the courts for civil compensation. This is because of statutory provisions which give short periods of time in which a wronged party is allowed to institute civil action. Before turning to those provisions, it is necessary to make a brief comment about the recency of the psychological evidence of PTSD1 The significance of new evidence
PTSD was first recognised in the 1980 DSM III. By itself, the youth of PTSD is significant, but when added to the recency of medical and social recognition of the incidence, prevalence and consequences of child sexual abuse, the difficulties that can be produced by outdated legal principles start to become obvious. The consequences of child sexual abuse, including PTSD, only became known to the psychiatric and psychological communities (much less broader society, the legal community and survivors of abuse) in the late 1980s and 1990s. The recency of this evidence is significant when assessing the justifiability of statutory time limits, judicial expectations of survivors' knowledge of their injuries and their cause, and of what courts expect survivors of child abuse to have reasonably done to discover their injuries and their cause.
When statute law and common law is created in a social context without the benefit of the knowledge gained in future generations, those laws are likely to have gaps and to produce results that future generations can identify as unjustifiable but perhaps understandable in that social context. In the 1970s, for example, since child sexual abuse was not widely known of by authorities, and since its consequences including PTSD were then unknown, the critique that follows could not be levelled at the law as it stood then.
However, now that the incidence, extent and consequences of child sexual abuse are known, when contemporary Parliaments do not change the law to reflect this new knowledge, and when judges are either unaware of this evidence or are unwilling to be informed by it, gaps in the law and unjust results are not excusable. These unjust results are the product of Parliamentary inactivity and misconceived judgments.
This context is one where the Queensland Parliament has not responded to new evidence, and judicial reasoning appears to be insufficiently informed. This is a problem requiring attention because a significant number of children in Queensland are sexually abused. Between 1994 and 1998 in Queensland, there were 15 774 child sex offences reported to police. In Queensland in 2002-03 there were 31 068 notifications of child abuse and neglect to State authorities, involving 22 027 children. Of these, there were 12 203 substantiated cases involving 9032 children. Of the 12 203 substantiations, 610 were cases of sexual abuse. Queensland also has a history of child sexual abuse in State and religious institutions and in State foster care. II TIME LIMITS AND MINORITY, AND EXTENSION PROVISIONS
A Time Limits and Minority
The State is not limited by time in prosecuting indictable criminal offences, which include the acts constituting child sexual abuse. The High Court has held that individuals accused of criminal acts have no right to a speedy trial, or even to trial within a reasonable time. Cases of delayed prosecution for child sexual abuse demonstrate that it is possible for a fair trial to be secured many years after the relevant events. As well, judges in criminal courts have accepted that many survivors of child sexual abuse for good reasons take a long period of time to report it. In 1995, for example, Wilcox J stated:
It is commonplace for there to be a substantial delay in the reporting of alleged sexual assaults, especially where the complainant is a child…many sexual assault victims are unable to voice their experience for a very long time. To adopt a rule that delay simpliciter justifies a stay of criminal proceedings would be to exclude many offences, particularly offences against children, from the sanctions of the criminal law.
The civil context provides a marked contrast. Statutes set time limits on when a person can bring a civil claim for personal injuries, for several usually justifiable reasons. It is necessary to ensure a fair trial for the defendant by ensuring the availability of fresh evidence. People need to be able to proceed with their lives unencumbered by the threat of an old claim. Plaintiffs should not sleep on their rights. The public has an interest in prompt resolution of disputes. Accordingly, in Queensland, New South Wales, Victoria, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory, actions seeking damages for personal injuries must generally be commenced within three years from the date on which the cause of action arose.
Minority has traditionally constituted a legal disability and has stopped time from running until the attainment of majority. In most but not all Australian jurisdictions, this effect of minority is still generally upheld, save a significant exception in Tasmania. In Queensland, South Australia, the Northern Territory and the Australian Capital Territory, therefore, a survivor of child sexual abuse has three years from turning 18 to institute proceedings, in Tasmania a survivor also has until 21 but only if he or she was not in the custody of a parent at the time of the events, and in Western Australia a survivor will have until 22 or 24 depending on the action. However, in New South Wales and Victoria, where a child suffers injury from someone who is not a parent or a close associate of a parent, amendments motivated by the Ipp Review of the Law of Negligence establish a different position. Here, if the child is in the custody of a capable parent or guardian then that child is deemed not to be under a legal disability or incapacity, and the child's parent or guardian is required to bring the action on the child's behalf within a set period of time, which may often be a much shorter period than exists even in other Australian jurisdictions. In New South Wales, the action must be brought within three years from when the action is discoverable, while in Victoria the action must be brought within six years from this date. In both cases, a longstop of 12 years from the date of the wrongful acts applies. 1 Qualitative differences in child abuse cases
There is no doubt that the legal system must protect the need for fair trials and defendants' rights. However, due to qualitative differences in child abuse cases (in contrast to typical personal injuries suits such as motor accident cases), the generally good reasons for short time limits have been illuminated by judicial and extra-judicial commentators as being of little application. These differences primarily flow from the facts that the injury is inflicted on a child; the acts occur in private and so are not often accompanied by objective evidence; the acts are particularly egregious; the psychological injury commonly takes many years or even decades to manifest; the causal connection between abuse and injury also typically takes a long period of time to be realised; the nature and extent of the injuries takes a similarly long period of time to be diagnosed; the victim's frequent sense of misplaced guilt, shame and responsibility for the acts impedes their realisation of being the victim of a wrong; and the wrongdoer's position of superiority often deters survivors from proceeding until they feel psychologically equipped to do so. Even the Ipp Review, whose terms of reference were to examine methods to reform the common law to limit liability and quantum of damages, recognised the unjustifiable difficulties posed by a short and rigid limitation period in at least some classes of case of child injury, namely where a child is injured by a parent or a close associate of a parent. Responding to these recommendations of the Ipp Review, legislatures in New South Wales and Victoria enacted a special limitation period for cases where a child is injured by a parent or a close associate of a parent. In these cases, the action is deemed to be discoverable by the victim when he or she turns 25 years of age, or when the cause of action is actually discoverable (not constructively discoverable), whichever is later. With the longstop of 12 years applying to these cases as well, this means that in this class of case, a plaintiff who has turned 25 has three years to institute proceedings once he or she has actual knowledge of the fact of the injury, of the defendant causing that injury, and of the injury being of sufficient seriousness that it justifies legal action. Effectively then, a plaintiff here can have until turning 37 to institute proceedings.
Despite these cogent arguments showing that the rationales for strict time limits are inapplicable in cases of child abuse, and despite jurisdictions elsewhere recognising these arguments and amending their statutes of limitation for these cases, in Australian jurisdictions, these actions are treated no differently, save the specific classes of case now recognised in New South Wales and Victoria. The significance of this is that most adult survivors of child sexual abuse with PTSD (and many of those who do not have PTSD) will not be able to commence proceedings within the time allowed. Unless the defendant does not plead the expiry of time as a defence - expiry of the time limit must be pleaded as a defence; it does not operate automatically to bar the plaintiff's access to the court - these plaintiffs will be out of time. They are then forced to either abandon their claim, argue that they were under a legal disability since attaining majority so that time has not run until that disability ceased, or to apply to the court for an extension of time in which to bring their claim. Due to the cost of such an application, many will not pursue the matter. B Extension Provisions
Most Australian jurisdictions have statutory provisions enabling time to be extended by the court, usually on the basis that critical facts about the injury (including the presence of the injury itself, as well as its cause) have only surfaced long after the wrongful event. Despite the technical availability of an extension, however, Queensland case law demonstrates that in child abuse cases the extension provisions have been almost impossible to satisfy. The discussion of Queensland decisions in Part III is instructive for future Queensland cases, and for extension applications in other Australian jurisdictions. The relevance of Queensland decisions to other Australian jurisdictions flows from the fact that extension provisions in these jurisdictions import considerations that are identical or similar to those that prove decisive in Queensland. These comparative provisions will be summarised after outlining the Queensland provisions.
In Queensland, assuming there is enough evidence to establish the action, an applicant is typically eligible for an extension of time if it is demonstrated to the court that a material fact of a decisive character relating to the action was neither known to the applicant, nor within the applicant's means of knowledge, until a date after the applicant turned 20 and within one year of the applicant seeking the extension. 'Material facts relating to a right of action' include the fact of the occurrence of negligence or trespass; the fact the negligence or trespass causes personal injury; the nature and extent of the injury; and the extent to which the injury is caused by the negligence or trespass. Such a material fact will be of a decisive character if a reasonable person knowing that fact and having taken appropriate advice would regard it as showing that an action would have a reasonable prospect of success and of resulting in an award of damages sufficient to justify bringing the action; and in their own interests and taking their own circumstances into account, the person ought to bring an action.
A pivotal provision deems a fact to be outside the applicant's means of knowledge only if the applicant does not know of the fact, and, as far as the fact is discoverable, the applicant has taken all reasonable steps to discover it before it is in fact discovered. In keeping with the policy reasons underpinning limitation periods, an out-of-time plaintiff is expected to have taken reasonable steps in a timely manner to ascertain the decisive facts constituting their action, to have a persuasive case for an extension of time. The idea is that even if a plaintiff could not have possessed the material facts and so have brought an action within time, that plaintiff is still expected after time has expired to take reasonable steps to ascertain those facts and institute proceedings quickly once their ascertainment is possible, to reduce the delay produced by otherwise unavoidable circumstances. Similar provisions importing a requirement that the plaintiff take 'reasonable steps' to discover the decisive facts exist either explicitly or implicitly in extension provisions in other jurisdictions.
In New South Wales, different extension provisions are available depending on the time when the injury was sustained, or where other reasons for an extension may exist. Several of these provisions require the court to consider the reasonableness of the applicant's conduct to ascertain the decisive facts relevant to the action. First, for extension applications concerning actions where a person was injured before 1 September 1990, the substance of the Queensland provision concerning whether a material fact of decisive character was not within the applicant's means of knowledge is implicitly duplicated. Second, for applications involving injury sustained between 1 September 1990 and 6 December 2002, when considering an application extension, the court must consider, among other things, the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any advice received. Third, for actions concerning injury sustained after 6 December 2002 where a person applies for an extension of the 12 year longstop, the court must again consider the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any advice received. More significantly, the longstop cannot be extended to enlarge time beyond three years from the date of discoverability, which introduces the element of constructive discoverability; that is, when it can be deemed that the plaintiff 'ought' to have known of the three decisive facts founding an action. A cause of action is discoverable on the first date the plaintiff knows or ought to know of three facts: the injury, the defendant causing that injury, and the fact that the injury is of sufficient seriousness to justify bringing an action. It is deemed that a person ought to know a fact at a particular time if the fact would have been ascertained by them if they had taken all reasonable steps before that time to ascertain the fact. Fourth, for applications seeking an extension on the ground of recent manifestation of latent injury, the court may also have to consider when the plaintiff ought to have become aware of the facts of the injury, its nature and extent, and the connection between the injury and the defendant's conduct.
In Victoria, the court must consider the extent to which the plaintiff acted promptly and reasonably once he or she knew the defendant's act might be capable at that time of giving rise to an action for damages. For extension applications where the wrongful event occurred on or after 21 May 2003, the court must consider the extent to which the plaintiff acted promptly and reasonably once he or she knew the defendant's act might be capable at that time of giving rise to an action for damages; and the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any advice received. In the ACT, the substance of the Victorian provision for this latter class of extension applications is duplicated.
In three other jurisdictions, general discretionary powers enable the court to consider the plaintiff's conduct. In South Australia, the court must consider the conduct of the parties generally, and any other relevant factor. In the Northern Territory, the court must consider among other things whether in all the circumstances it is just to grant the extension. In Tasmania, the court must consider whether it is just and reasonable to extend the limitation period.
Some final points need to be noted before turning to the case studies. Even if all the conditions about recent discovery of decisive material facts and the taking of reasonable steps are satisfied, the court must still then consider the justice of extending time and exercise its discretion in the applicant's favour. The applicant has a 'positive burden' of showing that justice requires the extension of time. Whether the court exercises its discretion to extend time depends on its estimation of the prejudice to the defendant's right to a fair trial. This prejudice was the basis for the court's refusal to extend time in the Victorian case of Calder.
The intention of the extension provision is therefore to enable the institution of proceedings by someone who could not have reasonably done so within the time allowed, either through lack of knowledge of a material fact (such as the injury sustained or the causal connection), or because on the facts then available, the action was likely to fail or to produce an insignificant amount of damages. In Re Sihvola, Wanstall CJ distilled the purpose like this:
The issuing of a writ presupposes knowledge, or at least belief, by the plaintiff or his legal advisers that he can establish the cause of action alleged in his writ by proving the facts that are then within his knowledge. The antithesis of this proposition becomes the basic assumption of the scheme, i.e., that he has not issued a writ because he lacked knowledge of some material fact, on proof of which his cause depended, either entirely or for a worthwhile result.
In Sugden v Crawford, Connolly J (with whom Shepherdson J agreed) stated that an extension will be justified where there is such an enhancement of the prospect of success as, for example, would raise it from a possibility to a real likelihood. Even if a prima facie case of negligence already existed, legal advisers may deem it too risky until the newly discovered fact emerges. In Sugden, the applicant succeeded because his originally undiagnosed back fractures sustained after a workplace accident were diagnosed after expiry of time. The court found that without this later diagnosis, this was the type of undiagnosed complaint (soft tissue injury to the back) which without evidence of fracture would be treated with scepticism, and would be unlikely to attract a significant award of damages. The diagnosis therefore had the effect of transforming his case. In a negligence claim, the plaintiff must prove damage, whereas a claim for assault and battery is actionable without proof of damage. It will be seen from the case studies that this reasoning has particular relevance in cases of child abuse heard to date, due to the recency of its social, medical and legal recognition.III CASE STUDIES: APPLICATIONS TO EXTEND TIME
A Woodhead v Elbourne
The applicant was born on 25 February 1974. She suffered alleged sexual assaults between July 1981 and December 1987 (aged 7-13), inflicted by a friend of her adoptive parents. The alleged assaults were of a relatively minor nature; the most serious incidents appearing to involve the defendant allegedly putting his hand 'between the Plaintiff's legs, in the area of her vagina' and 'mov[ing] his fingers over the Plaintiff's vaginal area'. When aged 12 or 13 the plaintiff told her mother of the assaults, had counselling sessions and police interviews, but no action was taken. She had until 25 February 1995 to begin proceedings. She instituted proceedings on 23 December 1997; a gap of two years and nine months from the expiry of the time limit. Relevantly, the claim was in assault and battery, not negligence, so the claim was actionable without proof of damage.1 Psychiatric/Psychological Counselling and Surfacing of Material Facts
The applicant suffered a crisis in November 1993 (aged 19) and saw a psychiatrist, who noted that the applicant had never been able to talk through or deal with the abuse, or explore how it affected her. At this time, no analysis was conveyed to the applicant of her symptoms, their cause, or of the connection between the abuse and its consequences. Until this point she had not connected her symptoms with the abuse because, in her words as reported by a psychologist, 'this would have meant confronting the trauma she was avoiding in the hope that it would just go away.'
Regular psychotherapy began in 1996. Towards the end of 1996 the applicant had expressed anger at the assaults and the psychotherapist had told her that she could see a lawyer. She consulted a solicitor on 26 March 1997, but was unable to provide details of her injury or condition except to say she was receiving counselling. That day, the psychotherapist told the applicant she did not think she was ready for legal proceedings, and refused to provide a medico-legal report.
The applicant began treatment with another psychiatrist on 19 January 1998. After six visits, this psychiatrist wrote a report on 18 December 1998, which included a diagnosis and comments linking the abuse with the conditions suffered by the applicant. The applicant said that only after reading this report did she 'first bec[o]me aware that she was suffering from Post Traumatic Stress Disorder consequent upon childhood sexual abuse…and borderline personality disorder…before this time I did not know the nature of my condition, the extent of my condition or whether my condition related to the assaults by the defendant.' The respondent argued that direct knowledge of the material facts existed in 1993 when the applicant began psychotherapy, or no later than 1996. This argument was relied on to the exclusion of the argument usually raised in these cases that the applicant should have taken reasonable steps to discover the fact before she did.2 Decisive Elements of Judicial Reasoning
Despite assault and battery being actionable without proof of damage, the extension was granted. The judicial reasoning is concerned with the applicant's direct knowledge, and the effect of the psychiatric diagnosis. Unusually, there is no discussion of the reasonable steps issue.
The first critical finding by White J was that only when the applicant read the December 1998 report did she have direct knowledge of the material facts which if properly advised would lead a reasonable person to institute proceedings. The knowledge gained at this time of the psychiatric diagnosis of the precise injury was held to raise the prospect of success from a possibility to a real likelihood by identifying the extent of the injury. Implicit here is the notion that without evidence of the extent of the injury, the applicant would have little chance of either success, or of a significant amount of damages.
Second, the fact that the applicant had explored the events over two years of psychotherapy was not deemed to be direct knowledge sufficient to dismiss the application. Justice White stated that during this time 'She may have been led to think that possibly the alleged sexual assaults were the cause of her symptoms but that is insufficient'. Therefore, even the applicant's awareness over years of therapy that the sexual assaults could possibly have caused her symptoms was deemed insufficient to demonstrate direct knowledge of the material facts. Third, White J identified the applicant's adverse life influences (the abuse, the school difficulties and problems with her brother). The psychiatric diagnosis was held to disentangle these and to clarify the causal consequences of particular experiences, including the causal link between the alleged abuse and the psychiatric injury.
This reasoning will be analysed during discussion and analysis of the next three cases. It contains reasoning and conclusions that are impossible to reconcile with the following decisions. However, one point all the judgments have in common is that the effect of avoidance caused by PTSD is not discussed.
B Carter v Corporation of the Sisters of Mercy of the Diocese of Rockhampton ('Carter')
The applicant was born on 23 March 1960. When two months old she was taken into State care and in 1961 she was placed at Neerkol Orphanage, a private institution licensed to care for children, run by an order of nuns. Between 1961 and 1972 (aged 1-12), the applicant suffered personal injuries from numerous incidents of physical and emotional cruelty from the nuns. From the age of five or six, she allegedly suffered numerous incidents of sexual assault by a Neerkol employee, and from when she was aged seven, she allegedly suffered almost daily rape by this employee. In August 1968, aged eight, she complained to government employees of physical and sexual abuse, but she was not believed and instead was beaten for complaining. Aged 15, she fled State care to live on the streets.
Throughout her life, the applicant suffered numerous adverse influences and incidents apart from the alleged sexual abuse suffered as a child, including: being placed in State care at 14 months of age; having severe speech impediments; enduring regular severe physical assault, emotional cruelty and torture (eg solitary confinement, and being tied to a pole); enduring childhood emotional neglect; surviving regular forced use of sedative drugs as a child; being shifted to a number of foster placements; running away and living on the streets as a teenager; becoming pregnant while homeless; experiencing the death in 1977 of her boyfriend who was the father of her first child (her alcohol abuse started after this); enduring the death of her youngest child in 1992; enduring a marriage characterised by verbal and emotional abuse; and longstanding alcohol abuse.
In 1997 she learned of others who had suffered abuse at Neerkol. At this point she complained to police and on 6 August 1997 she consulted her solicitor regarding criminal charges and her solicitor offered to investigate a civil claim. The Neerkol Orphanage nuns wrote the applicant a letter of apology and regret for their actions and omissions, and, with the first defendant, agreed on a settlement of the claim. This was therefore an application for an extension of time to proceed against the State of Queensland and the alleged individual perpetrator. Despite the nuns' admissions and settlement, the State of Queensland did not admit that the events occurred, and claimed that a number of witnesses were either dead, unable to be located, or very old. The applicant had until 23 March 1981 to begin proceedings. She instituted proceedings on 27 July 1998 - a gap of 17 years and nine months from the expiry of the time limit. The claim was in negligence against the State of Queensland (so requiring proof of damage), and in trespass to the person against the employee.1 Material Facts: Psychiatric Diagnosis and Causal Connection
The applicant claimed recent knowledge of two material facts of a decisive nature that previously were neither known to her nor within her means of knowledge. The first fact was the knowledge that she suffered a psychiatric injury (chronic depression, among other things; and she was also diagnosed with PTSD but the judgments are silent about this, save for brief mention by the minority judgment) caused at least in part by the abuse. The applicant claimed she only gained this knowledge on 7 October 1998 after reading a psychiatrist's report dated 29 September 1998. The second fact was the causal connection between the acts and the personal injury. The applicant said that only after reading the report did she appreciate there was expert evidence indicating that the abuse affected her psychiatrically and had caused the injuries suffered since leaving Neerkol. She had received psychological and psychiatric treatment over many years, but, she said, 'there was never any mention or indication of a connection between the abuse I suffered and my current condition.' The applicant admitted that she had harboured a hatred for her abusers because of their abuse (but did not ever consider that she was entitled to compensation), and in her affidavit had stated that she became angry and aggressive because of the abuse and this influenced her aggression as a child towards other children. Both at first instance and on appeal, the applicant failed.
2 Decisive Elements of Judicial Reasoning: Trial Level - and Analysis
At first instance, White J appears to have based the refusal of the application on the assumption that the applicant had direct knowledge of the necessary facts (and later in life retained an awareness of the wrongs which had been done to her) to commence an action from the time the limitation period started to run; or at least, to commence proceedings at any time between her marriage at the age of 19 (White J does not explain her selection of the significance of this point in the applicant's life) - and her complaint to police in 1997. The applicant's mere knowledge of the facts of the abuse seems to underpin the finding that she could have brought proceedings before she did. Justice White also found that there was 'nothing in the material to suggest that she could not have [commenced proceedings between 1978 and 1997 and] she would have been advised, had she sought advice, that the damages would be likely to be considerable.'
It is difficult to discern the key elements of judicial reasoning here. The conclusion appears to turn on the finding that if advised, the plaintiff could have brought the action on facts already in her possession. The judgment therefore does not appear to be based on a finding that the applicant should have taken reasonable steps to ascertain her psychiatric injury before she actually did. The fact that there is no discussion or resolution of the reasonable steps issue in the judgment supports this.
Justice White reaches her judgment without addressing the claim of recent discovery of material facts of a decisive character. Her Honour states that the psychiatric diagnosis was relevant to the extent of the injury, which raises the question why this was not enough to qualify. Nevertheless, White J found that the applicant could have brought the claim earlier based on facts she already knew, since if successful, she would have been likely to obtain significant damages. This finding is problematic. It appears to be somewhat more arguable with respect to the assault and battery claim, which is actionable without proof of damage - although to bring an action in the 1980s, for example, when institutional abuse was unacknowledged in Queensland, would have presented arguably insurmountable difficulties.
However, the more concerning difficulty with this reasoning lies with its application to the negligence claim against the State of Queensland, which requires proof of damage. Until obtaining the psychiatric diagnosis, all the applicant knew was that the acts had been done to her. She did not know that she had psychiatric injuries; nor did she know that there was a connection between the abuse and the injuries. None of these matters are discussed in the judgment. Furthermore, without giving any reasoning to justify the finding, White J assumes that the applicant would have had good prospects of success in a claim against the State, at any time between 1978 and 1997, without knowledge of the psychiatric injury, without knowledge of the causal connection between the abuse and the injury (which was unknown to the psychiatric community until at least the late 1980s), and before revelations and evidence of institutional abuse existed in Queensland. This is a highly dubious assumption. Furthermore, White J held in Woodhead (in an assault and battery action) that the psychiatric diagnosis raised the prospect of success from a mere possibility to a real likelihood, but this finding was not made in Carter. It is unclear what could distinguish these cases in this respect. Until gaining the material facts of the psychiatric diagnosis and of the causal connection between the abuse and the injury, the applicant in Carter had little evidence on which she could commence proceedings, and even less on which she could prove precise damage.
In Woodhead, White J found that the applicant did not have all necessary facts on which to commence proceedings until gaining the psychiatric diagnosis and the evidence of the causal link, yet the applicant in Carter was found to have all necessary facts on which to bring an action without these same pieces of evidence. It is difficult to reconcile these findings. Neither applicant previously possessed the psychiatric diagnosis or the evidence of causal connection. The applicant in Woodhead had attended regular counselling for two years, and had received suggestion that the abuse could cause her injuries. The applicant in Carter had attended intermittent psychological and psychiatric counselling, but had endured multiple severe adverse influences in her life and it had never been suggested to her that her sexual abuse may have produced her injuries. A related irreconcilable matter is that in Carter, there was no consideration given to the capacity of the psychiatric report to have the same disentangling effect as Her Honour found in Woodhead. This is curious, since the applicant in Woodhead endured far less severe abuse, and had far fewer and less severe adverse influences in her life, than did the applicant in Carter.
Here again, evidence of PTSD and avoidance is not referred to.3 Decisive Elements of Judicial Reasoning: Appeal Level - and Analysis
On appeal, the appellant had to show that the finding that the material facts were not within her means of knowledge until reading the psychiatric report in October 1998 was not reasonably open to the judge on the evidence presented. The majority (McPherson JA, with whom Muir J generally agreed) made several conclusions about direct knowledge, and about the taking of reasonable steps to ascertain material facts, before dismissing the appeal.
First, regarding whether the appellant knew she suffered from depression, McPherson JA held that before reading the psychiatric diagnosis of depression, the appellant 'was aware that she suffered from a depressed condition' because when she consulted the psychiatrist she reported that at times she felt depressed and she drank alcohol to ease this depression. This appears to indicate that for McPherson JA, the appellant knew that she had depression in a psychiatric sense, simply because she stated that she was, in lay terms, 'depressed'. This finding is unjustifiable simply because to think that you are 'depressed' in lay terms is not at all the same as knowing that you have depression in a medical sense, because this would require knowledge of the clinical symptoms of depression, and diagnosis of your exhibition of those symptoms. There is substantial authority for the principle that knowledge of symptoms is not knowledge of the injury sufficient to make time run until the nature and extent of the injury is ascertained by expert diagnosis. The appellant clearly did not know she suffered depression, or, for that matter, any of her other psychiatric injuries, until she received the psychiatric diagnosis of this.
Second, regarding whether the appellant knew her injuries were caused by her abuse, McPherson JA refers to the appellant's statement that because of the abuse she suffered, she became an aggressive and angry person and would assault other children. From this statement McPherson JA concludes that 'even at that early stage of her life, she was herself able to make a connection between her treatment at Neerkol and her mental state or behavioural condition.' Justice Muir made a similar finding. Yet this conclusion is also unjustifiable. To begin with, the psychiatric report itself states that 'It is difficult to know if the applicant's violence towards others at a young age is in direct relation to her experiences of abuse and her own attempts to cope with the abuse.' Any one or more of several adverse influences in her life until that point could have caused her early aggression, including the fact of being placed in State care, her speech impediment and its consequences, her forced drug use, her physical abuse, her emotional neglect, and her sexual abuse. The appellant cannot make her own psychiatric diagnosis as she is not an expert witness. The disentangling effect of a psychiatric diagnosis and opinion about causal factors referred to in Woodhead, if appropriate there, is surely appropriate here, since the number and severity of the appellant's adverse influences are greater.
Third, regarding whether the appellant knew as an adult of the causal connection between her childhood suffering and her psychiatric injuries, or could and should have discovered this by acting 'reasonably', McPherson JA stated that 'If later in her life she did not appreciate that there was a connection between her childhood treatment and the alcoholism and her chronic depression, [these were facts] which she could have found out by taking the reasonable step of asking any psychiatrist whom she consulted. She was aware of her need to consult psychiatrists and psychologists because she had done so evidently more than once before [August 1998]. It is true that she says that, before then, there was never any mention of a connection between the abuse suffered and her current condition; but 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.' Then, McPherson JA says that the question is not whether there is any expert evidence of her injury and the connection before that date, but whether the appellant realised the possible connection between the two, or had taken reasonable steps to find out if a connection existed: and in this regard, 'one would have expected her to ask what it was that caused the depressive states.'
These findings appear to be made in ignorance of the appellant's psychiatric and emotional circumstances. The appellant cannot be judged to have had direct knowledge of the causal link between her childhood sexual abuse and her injuries including alcoholism, depression and PTSD as an adult. The most obvious reason is that until the late 1980s, no medical specialist in Australia - let alone any lay person - knew of the causal connection between childhood sexual abuse and psychiatric injury as a child or an adult. Even when this knowledge became known to the medical fraternity (which is not to say it was known generally), there were any number of the appellant's adverse influences that alone or in combination could have produced these injuries. It is submitted that this matter of her knowledge of the causal connection between childhood abuse and adult injury is a moot point in any event, since she did not know of her psychiatric injuries until receiving the diagnosis.
The relevant issue here is whether the appellant could justifiably be expected to have taken reasonable steps as an adult to discover the connection between her abuse and her injuries before she actually did. Both majority judges concluded that she could have taken reasonable steps to discover this fact before she actually did. The problem with this judicial reasoning is that in fact, it is not reasoned, but more closely resembles mere opinion. Neither majority judge draws their conclusion after giving developed reasons supporting it. Statements such as 'one would have expected her to ask what it was that caused the depressive states' are not supported by an analysis of psychiatric or psychological evidence, or substantiated by detailed reference to the psychiatric reports, or by reference to the multitude of adverse influences in the applicant's life. Such statements, rather than being justifiable conclusions made after exposition of the grounds underpinning them, instead beg necessary questions such as 'Why would one expect her to ask what caused the depressive states?' and "When could one reasonably expect her to ask what caused the depressive states?'. The answers to these necessary questions can only be arrived at after adequate analysis of psychiatric evidence, of the psychiatric reports in the case, and of the appellant's testimony.
Later in this article I will draw some conclusions about when the legal system may reasonably expect plaintiffs in this context to institute legal proceedings. At this stage, I will make two points about the issue of 'reasonable steps' to discover the injury and the causal connection between the survivor's child abuse and their injury. First, it is absolutely unjustifiable to require investigation by the survivor before the medical evidence of the consequences of child sexual abuse was broadly known by Australian practitioners. This makes it impossible to find that an adult survivor of child abuse should have taken steps to discover the nature, extent and cause of their injury before the 1990s, and certainly before the late 1980s. Once the psychiatric and psychological literature is consulted to consider this question, this first temporal parameter is beyond dispute, since the knowledge of causal consequences of child sexual abuse did not exist then. Second, in determining what constitutes the taking of reasonable steps, at least where the survivor has PTSD, a necessary consideration must be the avoidance symptom. In Carter, the expectation of reasonable conduct is decided in ignorance of the effects of PTSD including avoidance. This ignores relevant evidence and imposes an unjustifiable strictness on the standard of 'reasonable steps'.C Applications 861 and 864 of 2001 ('Application 864')
The applicant (S) was born on 31 August 1955. She suffered sexual assaults between October 1963 and July 1965 (aged 8-10), inflicted by the respondent schoolteacher, who later became a member of parliament, and who had been found guilty of child sexual offences involving this applicant by a criminal court. The assaults were of a very severe nature, and included multiple acts of penetrative intercourse. Due to other legal provisions at the time, she had until 1 March 1978 to begin proceedings.
The applicant made a complaint to police on 28 September 1998 and disclosed the then alleged sexual abuse of her by the defendant. After the respondent was criminally convicted on 1 November 2000, the applicant first thought about bringing civil proceedings. She was contacted by a solicitor and decided to proceed. On the solicitor's advice she consulted a psychiatrist on 27 December 2000, and there for the first time disclosed to a medical specialist her treatment by the respondent. She had experienced several adverse life experiences and had sought help from doctors, but had not previously disclosed the abuse to a doctor. The applicant learned of her psychiatric diagnosis in early 2001 (PTSD, among other things), and she instituted proceedings for negligence and assault on 27 February 2001; a gap of 22 years and 11 months from the expiry of the time limit. She agreed in evidence that in the last ten years she had heard of cases where people had been sued for sexually abusing children and had been held liable.1 Material Fact 1: Criminal Conviction
The applicant claimed the conviction constituted a material fact of a decisive character, and Botting DCJ accepted this on the basis that the conviction went to prove the tortious acts, and was therefore relevant to the action's reasonable prospect of success. Significantly, and unlike Carter, the court accepted that had the applicant obtained legal advice prior to the convictions, she would have been told it was unwise to proceed since it was unlikely to succeed without corroborative evidence or fresh complaint, especially against a person of such good repute. The fact of the convictions was obviously not within the applicants' means of knowledge until they occurred, so the reasonable steps argument could not be raised in this respect.
(a) Discretion: Length of Delay and Prejudice
The defendant accepted that he had been found guilty of crimes but denied that he had committed the acts, and asserted that undue prejudice would be caused to him in the civil action because of the long delay. The court accepted that despite the criminal convictions on a higher standard of proof, which facilitated proof of the applicant's civil action, prejudice was caused by the long delay, and the extension was refused. This remarkable result prompted Botting DCJ to concede that despite criminal convictions, 'It may perhaps trouble some that…our legal system should deny the complainants the right to pursue their violator for compensation by civil action. It is not my function to seek to explain, let alone seek to resolve any such apparent incongruity. My task is to apply the law as I understand it to the facts as I find them.' 2 Material Fact 2: Diagnosis of PTSD
For present purposes, the notable part of this case concerns the applicant's psychiatric diagnosis. The applicant had seen a psychiatrist in late 2000 and for the first time had divulged the abuse to a medical specialist. The psychiatrist's report stated that as a result of the abuse, S had moderately severe PTSD, and other conditions. The second material fact relied on was therefore her discovery in early 2001 of her psychiatric diagnosis of PTSD: the nature and extent of her injury. Before contacting police on 28 September 1998, the applicant had not disclosed the sexual assaults for several reasons, including feelings of guilt, shame and self-blame, and because 'to tell someone else meant I would have had to describe what had occurred to me out aloud and, until I gave my statement to the police, I could not bring myself to do that as it meant reliving the events.' 3 Judicial Reasoning
The application was refused, but Botting DCJ did not find that these facts were not material. Nor did he find that they were not decisive. Nor did he find that the applicant had direct knowledge of sufficient facts to institute proceedings before she did.
The judgment turned on the finding that these facts were not beyond S's means of knowledge, because by taking reasonable steps the applicant would have discovered the facts about her psychiatric injuries. At least demonstrating some awareness of the position of adult survivors of child abuse, albeit not informed by psychiatric evidence - there is still no explicit discussion of PTSD and avoidance - Botting DCJ accepted that 'often child victims of sexual abuse will find it very hard, if not impossible, to tell others of their experiences [and] that when such a victim becomes an adult, it will continue to be extremely difficult for such a person to tell a doctor of the abuse'.
However, this did not lead to a finding that for a person with PTSD, taking 'reasonable steps' meant taking those steps when the person felt ready to do so. Botting DCJ asserted that by the early 1990s there was a general societal awareness of child sexual abuse, and generally held medical knowledge about the consequences of child sexual abuse. His Honour referred to the applicant's awareness since the early 1990s of numerous health problems, and to her seeking of medical help regarding them. His Honour also gave weight to the fact that she had made a complaint on 28 September 1998 to police, and to her testimony that she had heard of cases where people had been held civilly liable for child sexual abuse. From these findings, Botting DCJ concluded that: 'Whilst one can understand her reluctance to raise such matters with her advisors, it seems to me that by the mid-1990s her failure to do so was not reasonable'. 4 Analysis
The conclusion about what steps should reasonably be taken to ascertain knowledge of her injuries by someone suffering from PTSD is made without being guided by the symptomatology of PTSD, and in particular, without referring to the PTSD sufferer's avoidance of stimuli associated with the traumatic events, or this applicant's statement that until her police report in September 1998, 'to tell someone else meant I would have had to describe what had occurred to me out aloud and, until I gave my statement to the police, I could not bring myself to do that as it meant reliving the events.' Although Botting DCJ 'understands her reluctance' to disclose her abuse, he nevertheless states that 'her failure to do so by the mid-1990s was not reasonable.'
Moreover, even if the applicant had have taken 'reasonable steps' and been diagnosed in the mid-1990s, and had then sought legal advice, Botting DCJ himself had accepted (when considering the effect of the criminal conviction) that she would have been discouraged from proceeding by legal advisors because the decisive material fact of the defendant's criminal conviction had not materialised, so that if the applicant had obtained legal advice in the mid-1990s she would have been discouraged from proceeding because of the high probability of failure. Even if Botting DCJ was wrong about this, if the applicant had instituted proceedings in the mid-1990s, the exercise of judicial discretion based on delay and prejudice to the defendant would have resulted in the application being refused.
The reasoning is therefore illogical. If the applicant had instituted proceedings in the mid-1990s she would have been discouraged from proceeding by legal advisors; and if she had proceeded, she would almost certainly have failed, both in gaining an extension of time, and in proving liability on the balance of probabilities. Yet, now that she has instituted proceedings in 2001, informed by two decisive material facts, she is also bound to fail. Either way, on the reasoning of Botting DCJ, at whatever time in her life the applicant instituted proceedings, she would have been unable to gain access to the civil litigation process.D Hopkins v State of Queensland ('Hopkins')
The applicant was born on 10 November 1974. She suffered alleged physical, sexual and emotional abuse from December 1984 to October 1987, with the sexual abuse allegedly beginning on 10 November 1985 (aged 11), inflicted by her foster father, with whose family she had been placed in December 1984. The judgment does not describe the abuse alleged, so it is impossible to estimate its severity. The applicant had until 10 November 1995 to begin proceedings. She instituted proceedings on 24 July 2003, after learning of her psychiatric diagnosis of PTSD and borderline personality disorder by reading a psychiatric report dated 19 June 2003, and after receiving her departmental file on 25 July 2002; a gap of seven years and eight months from the expiry of the time limit.
The application was to extend time to allow a claim in damages for negligence or breach of statutory duty against the State of Queensland regarding acts and omissions of officers of the Children's Services Department. The claim was that the applicant suffered psychiatric illness because of the abuse and that this would have been avoided or reduced if she had been removed from the family when she first complained of physical abuse in late 1986. Complaints of sexual abuse appear to have been made to neighbours and the Department earlier in 1986, but nothing eventuated from these: the applicant said the officer did not believe the claim and forced her to apologise to the foster parents for telling lies. She was removed from foster care in late 1987. The applicant's two sisters remained with the foster family until 1989, when they complained about sexual abuse by the foster father. At this time, the applicant was asked if she had ever been sexually abused by him and she said this had not occurred, but that she had been physically abused. The court accepted that this statement was 'consistent with her later attitude of not wanting to think about the issue, or do anything to revive her memories of it.'
In early 2002, one of the applicant's sisters and the foster father's own daughter complained to police of physical and sexual abuse by the foster father. The applicant then made a complaint to police in May 2002. It was suggested that she obtain her departmental file and that she should see lawyer. The applicant obtained her file in July 2002 and instructed solicitors on 11 September 2002 to investigate a claim. Before speaking to the police officer on 11 May 2002, the applicant had not disclosed the sexual abuse. She felt noone would believe her because she had previously been told she was lying and she had been forced to apologise for lying. She had tried to block out all thoughts of the abuse and get on with her life. She found it difficult to think about the abuse, let alone talk about it. Since the abuse, she had experienced severe depression, was distrustful of people, had nightmares, was quick to anger, excessively sensitive in relationships, had difficulty maintaining relationships, and had flashbacks triggered by events that reminded her of the abuse. She had not seen a psychiatrist or psychologist before being referred to a psychiatrist in June 2003 by her solicitors for the purpose of getting a psychiatric report. 1 Material Fact: Diagnosis of Psychiatric Injury, Extent, and Cause
The psychiatric report of June 2003 diagnosed PTSD, which she had suffered from continually since her abuse. The report said the applicant would have been aware of the symptoms she was suffering, and because of flashbacks involving the traumatic events she would have been aware of the connection between the symptoms and the traumatic events. The report said that a patient in the applicant's position was aware she was trying to avoid being reminded of the traumatic events, but that this desire is driven by anxiety and depressed moods when she has the reliving experiences - hence the desire to avoid confronting the issue is a product of the psychiatric condition.2 Judicial Reasoning and Analysis
Using similar reasoning to that used by both courts in Carter, McGill DCJ held that the psychiatric diagnosis was not a material fact of decisive character. This decision primarily turned on the finding that the applicant knew all the relevant facts about her psychiatric injury, its causation, and its relationship to the Department's failure to remove her before it did, before she discovered her diagnosis. The decision was therefore premised on knowledge already possessed by the applicant. The reasonable steps argument, used in Application 864 and relied on as a secondary reason in Carter, was not raised here.(a) Knowledge of Symptoms and of Causal Connection
The decisive finding by McGill DCJ was that 'what matters is whether the applicant is aware of her symptoms, not whether she is aware of the particular psychiatric condition that they represent, and whether [the applicant] connects those symptoms with the relevant incident in the past, or whether that connection is only ascertained with the benefit of expert medical advice.' Here, McGill DCJ held the applicant was aware of her symptoms, simply because of the fact of suffering them, and because she avoided stimuli associated with the abuse.
Like the findings in Carter, this decision is problematic because the applicant did not know her symptoms were symptoms of a psychiatric condition, and the judgment does not demonstrate the contrary. The applicant was simply aware of her feelings, her memories of the abuse, and her ways of behaving. In a lay sense, this knowledge of symptoms does not amount to, nor does it equate with, knowledge of a psychiatric condition or of the extent of it. In a legal sense, by 2004 there was even more authority for the principle that knowledge of symptoms is not knowledge of the injury sufficient to make time run until the nature and extent of the injury is ascertained by expert diagnosis; and nor is it sufficient knowledge to enliven any demand that reasonable steps be taken to find out the exact nature of the injury. The applicant therefore should not have been deemed to have knowledge of the existence of either the nature or extent of her psychiatric conditions.
The applicant was also held to be aware of the causal connection between the abuse and these symptoms, and by extension, even of their relationship to the department's failure to remove her. Without referring to any evidence, McGill DCJ concluded that suffe
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.Pedophilia and sexual abuse of children in Australia