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

A recent decision of the Queensland Court of Appeal has revisited section 30 of the Limitation of Actions Act 1974 (Qld) (“the Act”) in terms of when a material fact will be considered to be of a decisive character and the meaning to be ascribed to the term “within the means of knowledge of a person”. Whilst any application for an extension of time pursuant to section 31 of the Act will turn on its own facts, this decision is of significant assistance to a Claimant who may believe there was a breach of duty on the part of a potential Respondent prior to the expiry of the three year limitation period, but who does not have actual knowledge or the means to prove the breach until after its expiry.

In 2006, the Appellant was a single mother who decided to become a foster carer. She underwent training with the Second Respondent, Life Without Barriers, and became an approved carer in April 2006. In May 2006, a 17 year old boy, “XY”, was placed in her house, where she lived with her four year old daughter, “CD”.

It ultimately transpired that XY sexually abused CD. After XY was removed from the Appellant’s home, a discussion was had between the Appellant and an employee of the Second Respondent during which the Appellant became aware there were allegations XY had sexually abused his biological sister. The Appellant had not been advised of these allegations or any other behavioural issues prior to XY being placed in her care.

The Appellant sought legal advice and commenced a claim on behalf of CD in 2007. The Notice of Claim signed by the Appellant contained an allegation that the Respondents knew or ought to have known of the prior allegation against XY before the placement.

The Appellant’s solicitors at the time made a Freedom of Information (“FOI”) request to the First Respondent and, amongst other documents, received a redacted file from the Commission of Children and Young People and Child Guardian (“the FOI documents”), which read:

“…Resp[o]nse received from Team Leader indicates that LWB was aware of the young person’s sexualised behaviours, and the risk of placement with a LWB carer that had a young child, that was subsequently sexually abused. - It appears that LWB in combination with the DCS have been negligent in conveying this information to the carer, and neither party appear to want to accept some responsibility for this harm occurring. - It is vital that LWB continue to support the LWB carer through the provision of counselling etc…”[1]

As a consequence of an unfavourable psychiatric report, the Appellant was advised by her solicitors that the claim on behalf of CD had little prospect of success. Her solicitors ceased acting in June 2011. At some stage between 2011 and 2019, they sent CD’s file, including the FOI documents, to the Appellant.

As a consequence of the abuse suffered by CD, the Appellant was diagnosed as suffering significant psychiatric injuries, namely a generalised Anxiety Disorder, a secondary Major Depressive Disorder and an Adjustment Disorder with features of PTSD.

In 2019, the Appellant began to investigate making her own claim and instructed new solicitors. She served a Notice of Claim in August 2019 and again alleged the Respondents knew or ought to have known of XY’s previous history before placing him in her house.

The Appellant was given leave pursuant to section 43 of the Personal Injuries Proceedings Act 2002 to institute proceedings without compliance with the pre-court procedures. The order also required her to make an application pursuant to section 31 of the Act for an extension of time.

The material fact of a decisive character relied upon for the purposes of the section 31 application was the receipt of two reports from the First Respondent on or around 16 March 2020 (“the 2020 reports”).

The first of the 2020 reports, an external review into the Second Respondent’s decision making, provided significantly more information about XY’s dysfunctional history than the FOI documents, including allegations of sexualised and physically aggressive behaviour with his sister and at school since 2000.

Importantly, this report indicated the Second Respondent had been involved in early intervention with XY from around 2001. The external review determined that as a consequence of a changeover of staff and a system that allowed individual staff members to dismiss the severity of behaviour based solely on their perceptions and did not make information available to other staff to automatically alert them to the existence of serious behaviour problems, XY’s history was not known to the employee who was responsible for placing him in the Appellant’s care. 

The second of the 2020 reports concluded that the Second Respondent had maintained poor records throughout the relevant period and that the First Respondent did not support the placement as required (did not visit XY nor participate in care planning meetings regularly); they placed XY back home despite their apparent concerns for his sister’s safety; and they did not formally advise the LWB of the alleged incident of 2000 and 2001.[2]

The Respondents contended at first instance and on appeal that the 2020 reports were not of a decisive character as required by section 30(1)(c) because:

1. The Appellant could have proven her case by showing no more than they ought to have known of the possibility of that conduct; and
2. The Respondents’ awareness of the behaviour was already within the means of knowledge of the Appellant from documents obtained under the FOI request in 2007.[3]

The primary judge found the 2020 reports did not contain material which constituted a fact of a “decisive character” as, whilst they contained information that was certainly helpful to the Appellant’s claim, a case could have been pleaded without that information based on the evidence contained in the FOI documents.

The primary judge also found that, in light of the compulsory pleading requirements of Rule 166 of the Uniform Civil Procedure Rules 1999 (Qld), had her claim been pleaded on the basis of the FOI documents, admissions would have been obtained that the Respondents knew of the allegations of sexual abuse and that they did not tell the Appellant about it.

The primary judge considered the fact was within the Appellant’s means of knowledge when she consulted her previous solicitors in 2007, as there was “no doubt” she genuinely believed the Second Respondent had known about the allegation before placing XY in her care as she had signed the Notice with allegations to that effect.

Justice McMurdo, with whom Fraser and Mullins JJA agreed, allowed the appeal on the basis that the Appellant only discovered evidence on 16 March 2020 from which it could be proved that the Respondents knew of XY’s history when they placed him in the Appellant’s care.

McMurdo JA said the Appellant had a belief prior to that time, but there was no foundation in the evidence for the finding that was made by the primary judge that the Appellant knew of the relevant fact. A distinction was drawn between a belief and knowledge of the material fact for the purposes of section 30(1)(c)(i) of the Act.

In considering whether the fact was of a “decisive character”, McMurdo JA said that whilst the Appellant’s cause of action was based upon an allegation the Respondents knew or ought to have known of XY’s behaviour, the alternative case, whilst not certain to fail, was not one with strong prospects. The evidence obtained in March 2020 allowed the Appellant to prove an actual knowledge by the Respondents of XY’s behaviour and that case had significantly better prospects.

McMurdo JA said that the possibility the Appellant would come to know that fact by commencing and prosecuting a claim is not relevant under section 30(c)(ii):

“The relevant hypothesis is one which addresses the context of a person who has not commenced an action. In that context, what are the facts which a reasonable person would then know, having taken all reasonable steps to find out the fact by that time?”[4] 

McMurdo JA was not persuaded, as the Respondents contended, that the fact was within the Appellant’s means of knowledge because the documents released under the FOI request in 2007 disclosed it to her. The Respondents submitted a reasonable person would have read the material (the Appellant gave evidence she had not read the material), or caused her lawyers to read it, which would have revealed the facts.

McMurdo JA considered the parts of the FOI documents relied upon by the Respondents did not provide a means of knowledge of the material fact as:

1. it was an extract of someone’s opinion apparently based upon an email and perhaps other documents, but where the documents themselves could not be identified;
2. the document was heavily redacted and was able to be read, but not reliably understood by an outsider; and
3. it was an expression of an opinion of the State’s legal responsibility, rather than a record of the State’s awareness of XY’s previous misconduct at the relevant time.[5]

McMurdo JA found the material fact was of a “decisive character” as:

“Prior to March 2020, the case that the respondents had actual knowledge of XY’s history could not have been pleaded without revealing the plaintiff’s having little or no evidence to prove the fact. Its prospects were then poor, and in the appellant’s circumstances, that was a case which she ought not to have then brought.”[6]

Leave to appeal was granted. The appeal was allowed and the limitation period was extended pursuant to section 31 of the Act.

[1] AB v State of Queensland & Anor [2022] QCA 109 at 35.

[2] Ibid, at 30.

[3] Ibid, at 16.

[4] Ibid, at 48.

[5] Ibid, at 51 and 52.

[6] Ibid, at 54.