Inculpatory documents are not necessarily “material”: District Court dismisses application to extend limitation period Inculpatory documents are not necessarily “material”: District Court dismisses application to extend limitation period

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Inculpatory documents are not necessarily “material”: District Court dismisses application to extend limitation period

27 August 2021 | Public & Product Liability

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

The District Court of Queensland has dismissed an application to extend a limitation period, concluding that two reports containing comments adverse to the respondents did not contain any material facts of a decisive character.  

In Issue

  • Whether the applicant was entitled to an extension of her limitation period.

The background

The applicant, AB, alleged she suffered a psychiatric injury as a result of sexual and physical assaults allegedly perpetrated against her daughter, CD, by a young male named XY, while XY lived in AB’s home under a foster care placement. The placement was administered by the first respondent (the State) and arranged by the second respondent (LWB). AB alleged she discovered the abuse in about September 2006. She alleged the State and LWB were negligent by placing XY in an inappropriate home, not providing her with proper training and failing to disclose that XY had been accused of sexualised behaviour, among other things.

As the alleged abuse and its psychiatric consequences occurred so long ago, the usual 3-year limitation period that applies to personal injury actions had expired. AB was therefore required to obtain an extension of her limitation period under s 31 of the Limitation of Actions Act 1974 (the LAA). This provision gives courts a discretion to extend a limitation period where a “material fact of a decisive character relating to the right of action” was not within the claimant’s “means of knowledge” until a date after the expiry of the claimant’s usual limitation period.

AB argued that the “material facts” were contained in two reports (the reports) which were disclosed by LWB in approximately 2019. These reports were quite “inculpatory” in that they indicated XY had a history of repeated sexualised behaviour and this was known to employees of LWB and the State before XY’s foster placement began.

The decision

Among other issues, Porter SC DCJ was required to decide whether the reports contained material facts of a decisive character. His Honour concluded they did not. AB knew shortly after XY left her home that he was accused of sexual misconduct (which was evidenced in her GP’s records).  It was clear that, among other things, she was not trained to handle such a child and her household was not appropriate in view of XY’s alleged misconduct. Against that background, while the information contained in the reports was helpful, his Honour considered AB already knew enough information to be able to sustain allegations that the State and LWB had breached duties owed to her. Accordingly, AB’s application was dismissed.

Implications for you

A claimant will not always succeed in having a limitation period extended just because they only became aware at a later stage of the existence of documentation relevant to their claim, particularly if there is evidence that the claimant already knew of that information by other means. However, applications to extend limitation periods will always be considered on their own (often particular) facts, and courts are often reluctant to deprive a claimant of a cause of action.

It is also important to remember this claim was for “nervous shock” by the parent of an abused child. If CD commenced a claim in her own right, no limitation period would apply in accordance with s 11A of the LAA.


 

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Samuel Bowers

Samuel Bowers

Solicitor

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