Permanently staying compensation proceedings involving historical abuse claims

Make a historical abuse claim may have the challenge of time, but seek legal advice so as to not have a matter permanently stayed.

Permanently staying compensation proceedings involving historical abuse claims

CULTURAL SENSITIVITY WARNING: This case note discusses sexual and physical historical abuse. Aboriginal and Torres Strait Islander viewers are advised that this article contains sensitive information.

Case Note: Willmot v State of Queensland [2022] QSC 167

 

Background

Ms Joanne Willmot (the Plaintiff) sought to recover approximately $1.7mil in damages from the State of Queensland (the State) for direct liability because she suffered psychiatric injury. The Plaintiff alleged that her injury was a result of sexual and/or serious physical abuse experience while she was in the care of the State in the late 50s to late 60s.

The Plaintiff alleged the State failed to properly monitor and supervise her and those who cared for her when she was a State Child and a person subject to the Aboriginal Protection and Restriction of Sale of Opium Act 1897 (Qld). [1] Further, she alleged that the State knew or ought reasonably have known, that there existed a foreseeable risk of harm of psychiatric injury to her while she was a State Child.

The Plaintiff, a First Nations woman, was a State Child from infancy until about September 1966. She spent time both in an institution known as Cherbourg Girls’ Dormitory (the dormitory)as well as in foster care. The alleged abuse involved:

  • Serious physical abuse and punishment while she was resident at the dormitory;

  • Sexually and physically abused by her foster father whilst in care;

  • Severely neglected whilst in foster care to the point of malnutrition;

  • Witnessed the sexual abuse of her foster siblings whilst in foster care;

  • Sexually abused by two family members, on two occasions, while she was in the care of her grandmother but still deemed a State Child.

 

It appeared that the Plaintiff had no recollection of the alleged abuse she suffered whilst in foster care until 2016 after having had a conversation with one of her foster siblings.

The State accepted that it:-

  • Operated and controlled the dormitory at the time,;

  • Placed the Plaintiff in the care of her foster parents;

  • Was responsible for her care while she was a State Child;

  • Employed a Ms Maude Phillips as a supervisor of the dormitory in 1959 to 1966 (who was subject of the serious physical abuse allegations); and

  • Was responsible for the Plaintiff’s care from 1954 to 1966.

 

However, the State did not admit to the allegations of sexual abuse by the Plaintiff’s foster father, the sexual abuse whilst the Plaintiff resided with her grandmother, and the allegations about the extent of the duty and knowledge the plaintiff alleged the State had.

Given the abuse is alleged to have occurred over 60 years ago, the State argued it was prejudiced in its defence as it was unable to determine the truth of the allegations as all alleged perpetrators, except one family member, had long been deceased and a fair trial was unachievable. Solicitors for the State also gave evidence that all material relied upon did not mention any of the alleged abuse but for a single anonymous letter of complaint against one perpetrator that was sent to the dormitory in or about January 1951.

 

The Court’s decision

The Court echoed the decisions of Courts in other States that dealt with similar matters and stated that permanent stays should only be granted in exceptional circumstances. An example of an exceptional circumstance would be where the State (or a defendant) can show, on a balance of probabilities, that a fair trial will not be achievable.

The Court held that even though there was significant documentary material in this matter, oral evidence would be a serious consideration at trial; given all but one witness are deceased and any remaining witnesses memory would unlikely be of significant quality given the passage of time. In the circumstances, the Court found that the State would not be able to fairly defend the claim and achieve a fair trial.

Consequently, Bowskill CJ granted a permanent stay of these proceedings.

 

How does this affect future historical abuse claims?

Allegations of historical abuse are no longer subject to limitations in Queensland, meaning a person can bring such a claim at any point in time. As a result, Courts have the power to permanently stay proceedings where it is unfair to a defendant to allow the matter to run its course.

A person wishing to make a claim for historical abuse may have to face the challenge of time however, all may not be lost, and justice may still be possible. Further, if a defendant (or institution) is facing such a claim and is unable to fairly defend the matter given these obstacles, this case serves as a precedent for seeking a stay of proceedings.

 

Do you need assistance in a historical abuse claim?

If you have suffered an injury or have been served an injury claim relating to historical abuse, speak to a lawyer.

Our compensation lawyers can assist you in advising you of your options and the processes available to you and represent you in relation to the claim.

Contact the author or our compensation team to make an appointment with us today.

 

Footnote

[1] State Children Act 1911 (Qld) – “[a] neglected child, convicted child, or any other child received into or committed to an institution or to the care of the Department, or placed out or apprenticed under the authority of this Act.”