The Supreme Court of Queensland has ordered a permanent stay of proceedings in a historical abuse claim in ADA v State of Queensland [2023] QSC 159. 

The plaintiff commenced a claim against the State of Queensland (State) for a psychiatric injury suffered due to two separate events of sexual assault which occurred when she was a child. The State commenced an application seeking an order that the proceedings be permanently stayed on the basis that: 

• the plaintiff did not identify the alleged perpetrators
• there were no contemporaneous complaints by the plaintiff
• there was no account from any witnesses with personal knowledge of either of the unidentified perpetrators sexually assaulting the plaintiff
• no witness statements had been disclosed by the plaintiff from any person who witnessed either of the assaults.

The plaintiff alleges:

• in or about 1968 when she was 11 years old she was sexually assaulted by a male student in the principal's office of the school she attended. The plaintiff did not report the abuse to anyone at the school.
• in 1973 when she was 15 years old she was sexually assaulted by a truck driver. The assault allegedly occurred whilst the plaintiff was walking alone from the orphanage she resided in to the private residence she was employed to undertake domestic duties.

The plaintiff did not report either event to the respondent or to the authorities.

The plaintiff sought to rely on the following evidence in respect of the events: 

• affidavit evidence of a potential witness who also attended the school with the plaintiff, who stated the plaintiff seemed scared and nervous walking around the common areas of the school, and was very frightened by one particular very big, older boy
• affidavit evidence of two former teachers at the school, neither of which were employed at the time the assault occurred
• affidavit evidence from several former residents of the orphanage in support of her allegations, who detailed that the plaintiff would walk on her own to her domestic employment at a family home near the orphanage. The witnesses invariably described the plaintiff as suddenly experiencing nightmares and hiding in the bedroom at the orphanage and becoming withdrawn, shy, nervous and anxious
• affidavit evidence of her employer at the time the alleged abuse occurred, who described the plaintiff as non-communicative, and explained her experience of great difficulty in maintaining rapport with the plaintiff. 

The State undertook searches with the Department of Education and Department of Children, Youth Justice and Multicultural Affairs, however, were unable to locate any records relating to the alleged events. The State's efforts were supported by an affidavit of the State's solicitor, which included details of discussions with three teachers who were employed by the School at the date of the alleged assaults, all of whom were unable to recall any incidents of a sexual nature during their time at the school. 

In respect of the medical evidence, Dr Pant, psychiatrist, considered the plaintiff had a number of life stressors which impacted the plaintiff's psychological condition. Dr Chalk, a psychiatrist, considered that it was "profoundly difficult" to apportion between the different casual factors noting the life stressors. The State argued that it could not obtain or adduce any evidence to properly test the veracity of the plaintiff's account of causation in relation to her psychiatric condition due to the absence of medical records available between 1968 to 1973, or at the time of the other life events disclosed to Dr Pant and Dr Chalk. 

Despite section 11A(1) of the Limitation of Actions Act 1974 (Qld) and the removal of the statutory limitation period for child sexual abuse, the court retains a broad discretion to permanently stay a proceeding. The principles which the court must consider in the application of this discretion were considered in the case of Willmot v State of Queensland [2022] QSC 167, which were maintained on appeal. 

In Willmot, Bowskill CJ noted the unfairness generated as a consequence of the passage of time between the events giving rise to the claim and the resolution of it by a court proceeding is the effect of the delay on the trial process as a result of the “impoverishment of the evidence available to determine the claim”.

The State made three primary submissions relating to the consequences of the lapse of time since the occurrence of the alleged assaults being: 

1. the allegations of sexual abuse are critical or “foundational” to the causes of action which the plaintiff has pleaded against it and the State has no way to verify those allegations
2. the State is unable to respond to the plaintiff's allegations that it breached its duty of care by failing to take reasonable steps to avoid the risk of harm due to the passage of time between the alleged events and the plaintiff's claim
3. there were no contemporaneous treatment records of the plaintiff's psychiatric injuries, and the State could not investigate the potential cause/s. 

His Honour Cooper J accepted the State had no way of investigating whether or not the sexual assaults occurred, and no way of contradicting the plaintiff's account of the events. His Honour was satisfied that the State demonstrated it undertook all reasonable enquiries to investigate whether or not the alleged sexual assaults occurred.

His Honour also held that the State was prejudiced in both addressing the allegations of its negligence and disentangling the causative effect of the alleged sexual assaults from subsequent life stressors. All witnesses to the events were either dead, unidentified or unlikely to have an accurate recollection of past events. The available medical evidence did not provide the opportunity for an investigation of how and when the plaintiff's psychiatric injuries commenced and developed. A permanent stay was therefore granted. 

This recent decision examines the standard of evidence which is required to maintain the balance between allowing a claim for personal injuries as a result of child abuse and ensuring a defendant is not unfairly prejudiced by the unavailability of documents or witnesses in defending the claim at trial. 

In his judgment, Cooper J recognised the difficulties created by the passage of time in investigating whether sexual assaults occurred, addressing allegations of negligence, and disentangling the causative effect of the alleged sexual assaults from the effect of subsequent life stressors. 

The decision reinforces the findings of Willmot. The findings will provide an important reference for Queensland institutions when responding to claims involving allegations of historical child abuse.