ADA v State of Queensland [2023] QSC 159 (on AUSTLII).
Cooper J.
The plaintiff claimed damages in negligence for psychiatric injuries caused by two alleged sexual assaults that occurred in 1968 and 1973 when she was a child in the care of the State. The first alleged assault was said to have been by an unnamed older male student, at a school. The second was said to have been by a truck driver as she walked home from school to the orphanage where she then lived.
The State was first informed of the two alleged sexual assaults in 2021 and had not been able to identify the alleged perpetrators of the two sexual assaults nor located any records relating to either of the alleged assaults.
The court accepted the submission by the State that it has no way of investigating whether or not the alleged sexual assaults occurred and no way of contradicting the plaintiff’s account of those events. That is because the perpetrators of the alleged sexual assaults have not been identified or located, there were no other witnesses to either of the alleged assaults, and no relevant documents addressing the alleged assaults have been located. In these circumstances, it is correct to describe the State as being “utterly in the dark” on these critical issues ([76]).
The court also accepted that the State has been significantly prejudiced in its ability to address the plaintiff’s claim that it is liable in negligence for failing to take adequate steps to protect her from the risk of being sexually assaulted. As to the first alleged assault, the question of the State’s liability must turn upon a consideration of the arrangements which applied when students were sent to the principal’s office as well as the circumstances in which the plaintiff and the older male student came to be left in the office alone on the day of the first alleged assault. … the only witnesses who could give relevant evidence on those matters are either dead (the principal) or cannot now be identified or located (the administrative assistant sitting near the office on the relevant day or the person who directed the plaintiff to go into the office). As to the second alleged assault, it seems highly improbable that those responsible for permitting the plaintiff to walk to and from work at the Allen residence (if they could be identified and located) would now have any accurate recollection of why that was considered appropriate at that time or of what consideration might have been given to other transport arrangements for the plaintiff. Nor is it likely that such witnesses would have any accurate recollection of steps that might have been taken to educate the plaintiff about the dangers of strangers approaching her ([82]).
Finally the court was satisfied that the lapse of time means that the State is now prejudiced in its ability to undertake the exercise of disentangling the causative effect of the alleged sexual assaults from the effect of subsequent life stressors ([85]).
A permanent stay of the proceedings was ordered.
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