Lack of evidence due to passage of time leads to permanent stay of historical abuse claim

In Brief: A permanent stay of proceedings in a historic abuse claim has been ordered by the Supreme Court of Queensland in DJW v State of Queensland [2023] QSC 138.

Background

The plaintiff is a 65 year old Aboriginal man who commenced proceedings against the State of Queensland (State), seeking damages for psychiatric injuries allegedly sustained while residing in two dormitories in Cherbourg when he was a child. 

The State filed an application seeking an order that the proceedings be permanently stayed on the basis it was unable to run a fair trial because:

1. The events at the heart of the claim allegedly occurred some 60 years ago;

2. All the alleged perpetrators were deceased; and

3. All the persons employed to manage the dormitories, and supervise the residents were deceased. 

The events 

The plaintiff alleges:

1. From the age of four, while the plaintiff was a resident of a girls' dormitory, he was repeatedly sexually assaulted by older female residents; 

2. He was hosed down using a large powerful firehose and locked in a room in his wet clothing for several hours; and

3. While attending a camp with approximately twenty boys from a boys' dormitory, three boys restrained him in a tent where he was sexually assaulted. 

The plaintiff did not report the alleged incidents to the State until he made his claim for damages, 50 to 60 years after the alleged sexual assaults occurred. 

The plaintiff's only evidence as to the alleged incidents was his own statements. The plaintiff had obtained statements from other people however, none of those people observed the alleged sexual assaults against the plaintiff. 

The plaintiff's medical evidence referred to various potential causes for the various psychiatric conditions which the plaintiff suffered from. 

Discussion and findings

The State made five submissions in support of an application for a permanent stay of the proceedings:

1. The State first became aware of the alleged incidents between 50 and 60 years ago, and had no prior opportunity to investigate the specific allegations; 

2. All the alleged perpetrators, management and supervisory staff within the dormitories at the time of the alleged incidents are deceased;

3. Despite searches for relevant documents, there were no records or documents concerning complaints of the kind made by the plaintiff; 

4. There were several potential causes of the plaintiff's psychiatric injuries which created difficulty in attributing causation; and

5. The incident which allegedly occurred whilst attending a camp was particularly difficult for the State as it was a single instance of abuse and no documents or records exist in respect of the alleged incident. 

The plaintiff argued that the application should be dismissed because:

1. There were a significant number of witnesses who could give evidence about the lack of supervision and the State had failed to interview them;

2. The application for a permanent stay was premature as there were several outstanding investigations; 

3. The plaintiff's claims differed to other cases of this kind, as the plaintiff was under the direct control and supervision of the State at the time of the alleged incidents;

4. It is unlikely the alleged perpetrators would have given evidence even if they were alive, as any interview would have potentially exposed them to criminal prosecution; and

5. Attributing causation was problematic because there were multiple causes, including family circumstances, of the plaintiff's psychiatric conditions.

Despite the fact that the plaintiff may have identified potential witnesses who could prove some aspects of his case, the Court accepted that the relevant staff who may have been able to provide information or instructions to the State have been confirmed to be deceased, or are likely to be deceased. The effect of this being the State was unable to meaningfully investigate and respond to the claims of the plaintiff. 

The Court found that there was an incurable deficiency in the available evidence of the alleged sexual abuse and the State's ability to deal with them in that there were no documents recording any instance of alleged sexual abuse of the plaintiff. No amount of further investigation or enquiry would enable the State to plead more than a non-admission to the alleged instances of abuse put forward by the plaintiff. 

While the plaintiff identified further enquires which could have been undertaken by the State, His Honour found that the additional enquiries would be remote and speculative at best, and that they present no more than a mere possibility of producing some information that may be of assistance in dealing with the critical issues. 

Implications of the decision

This decision is important for Queensland institutions and reflects similar decisions in Queensland: Willmot v State of Queensland [2022] QSC 167; ADA v State of Queensland [2023] QSC 159.

When the limitation period for personal injury arising from child abuse was abolished pursuant to section 11A of the Limitation of Actions Act 1974, the Court retained the discretion to award a permanent stay to a defendant who is unable to fairly defend the matter because of the passage of time.

The Court is required to consider the balance between allowing a claim for child abuse to be made at any time and ensuring that the defendant is not unfairly prejudiced by the unavailability of documents or witnesses in defending the claim at trial.

This decision outlines the importance of the availability of evidence to prove the alleged incidents of abuse. His Honour found that despite the passage of time it remains necessary for the plaintiff to be able to lead evidence to prove all aspects of the claim.