Limitation period extended in foster care sexual abuse case

07 July 2022
Warning: This article contains details about sexual abuse which may be upsetting for some readers. Reader discretion is advised.

In Issue

  • This case considered whether certain new evidence was a ‘material fact of a decisive character’ under section 31 of the Limitation of Actions Act 1974 (LAA).

The background

The State of Queensland and foster care agency, Life Without Barriers (LWB) (the respondents) placed a 17 year old male (XY) in the care of AB (the appellant) in 2006. After several months, the appellant discovered XY had sexually abused the appellant’s 4-year-old biological daughter (CD). The appellant was diagnosed with various mental conditions as a result of significant psychological shock.

Soon after XY was taken out of the appellant’s care, she was informed by someone at LWB that there had been an allegation XY had previously abused his sister.

The appellant consulted solicitors in 2007 and a notice of claim under the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) was delivered on behalf of CD, on the basis that LWB knew, or ought to have known, of XY’s prior sexual misconduct. A psychiatrist interviewed the appellant and her daughter, and a report was obtained for a possible proceeding on CD’s behalf. The psychiatrist’s opinion was that CD had not related any conduct of a sexual nature and that CD’s account may have been affected by ‘tainting’. In 2011, the appellant’s solicitors advised her there were not favourable prospects for a claim by CD, based on the evidence and counsel’s advice.

Prior to ceasing to act for the appellant in 2011, her solicitors obtained documents from the State confirming that XY had previously been removed from his mother’s house for allegedly touching his sister and was taken to the police. The material also included Department of Child Safety records which stated LWB was aware of XY’s sexualised behaviours and there was a risk of placement with a LWB carer that had a young child.

In 2019, the appellant commenced her own PIPA claim against the respondents, alleging that LWB failed to disclose to her complaints of alleged sexual abuse by XY before she accepted the placement, and as a result of the respondents’ negligence, an unacceptable risk eventuated. In 2020, additional reports from 2006 and 2007 were disclosed which provided strong evidence that the respondents were aware of XY’s prior sexual misconduct.

Because the 3 year limitation period for the proceeding had long expired, a judge granted the appellant leave to commence proceedings pursuant to s 43 of PIPA, so that the proceeding could be commenced without completion of all of the usual pre-litigation steps. The judge ordered the appellant to apply for an extension of time pursuant to section 31 of the LAA.

The decision at first instance

The primary judge refused to extend the limitation period, finding the appellant already had a case which was worthwhile and reasonable to bring before obtaining the additional reports in 2020.

The issues on appeal

The respondents accepted their awareness of XY’s prior misconduct was a material fact but disputed that it was of a decisive character. They also contended their awareness of XY’s prior misconduct was already within the appellant’s means of knowledge from the documents obtained by her previous solicitors.

The Decision on appeal

The Court of Appeal held the appellant’s discovery in 2020 of evidence from which it could be proved the respondents knew of XY’s misconduct before his placement with the appellant was a ‘material fact of a decisive character’ within the scope of section 31 of the LAA. Without this further evidence showing the respondents had prior knowledge of XY’s abuse, the appellant had poor prospects of success and it was reasonable for her to have not pursued a claim at an earlier time. The Court of Appeal observed that to make such a claim without evidence in support would have required an extensive factual inquiry, and this would be "a formidable task for an individual suing the State of Queensland and another well-resourced defendant".

The Court of Appeal also specifically noted that prior to receipt of the reports in March 2020, the case that the respondents had actual knowledge of XY’s history could not have been pleaded without revealing there was little or no evidence to prove the fact. Its prospects were then poor, and in the appellant’s circumstances, including that of her mental health, that was a case which she ought not to have then brought.

The appeal was allowed, and the limitation period was extended in the circumstances.

Implications for you

This case reiterates that a court may exercise its discretion to allow an extension of the limitation period under section 31 LAA on the basis of new evidence. The onus is on the applicant to satisfy the court that the claim could not have been brought earlier without such evidence.

AB v State of Queensland & Anor [2022] QCA 109

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