Application for stay refused in historical child sex abuse action

11 March 2021
This story contains details about sexual abuse which may be upsetting for some readers. Reader discretion is advised.

In Issue

  • Whether to set aside and permanently the stay the action for the reasons set out in the defendant’s chamber summons application, including delay by the plaintiff and the defendant’s medical condition.

The background

The plaintiff was in the care of a Mission between 1960 and 1966. The defendant was employed as the Assistant Superintendent in charge of the Mission at the relevant time. The plaintiff alleged two separate incidents where he was indecently dealt with by the defendant between 1960 and 1964. The plaintiff commenced proceedings against the defendant after the abolition of limitation periods for child sex abuse actions.

The defendant’s application for a permanent stay was based on:

  • His medical condition comprising of his physical health (most significantly his risk of further and fatal stroke) and his cognitive impairment including memory loss; and
  • The effect of the delay on the defendant’s ability to marshal a defence to the plaintiff’s action, by reason of a loss of physical evidence and the effect of the passing of time on the memories of potential witnesses (including that of the defendant).

The defendant was 87 at the time of his application, with the alleged events the subject of the claim occurring 56 years ago. The defendant tendered medical evidence with respect to his current health conditions.

The decision at trial

The court:

  • was not satisfied on the evidence before it that the defendant’s cognitive state or mental condition was such to as to deprive him of the ability to exercise those functions;
  • was not satisfied on the medical evidence that the defendant was at risk of a further and fatal stoke should he be required to answer the allegations, and that the risk could not be managed;
  • referred to earlier decisions to the effect that delay of itself did not ground an application for a stay; and
  • noted that these type of cases are not dependent on documentary evidence to prove the allegations.

The Court concluded that the plaintiff was entitled to have his claim heard, as the defendant failed to present material to demonstrate that the case was exceptional so as to invoke an order for a stay of the proceedings. The fact that the defendant was 87 years old, and required to answer allegations that were said to have occurred 56 years ago, did not of itself ground an application for a stay.

Implications for you

As a result of the abolition of limitation periods, victims of historical sexual abuse can seek leave to commence an action many years after abuse is alleged to have occurred. Delay by a plaintiff does not of itself appear to be a sufficient ground for an application for proceedings to be stayed.

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