DJW v State of Queensland [2023] QSC 138 (on Jade).
Crowley J.
With thanks to Mathisha Panagoda for drawing attention to this decision, where the plaintiff brought proceedings seeking to recover damages from the State for negligence on the basis of psychiatric injury alleged to have developed as a result of sexual abuse and/or serious physical abuse of him whilst he was in the care of the State in the early 1960s. The plaintiff alleged a failure to properly monitor and supervise the plaintiff, and those into whose care he was placed by the State.
All the named perpetrators of the alleged sexual abuse against DJW, and the management and supervisory staff within the dormitories at the relevant times of the alleged events, are now deceased. Despite searches for relevant documents having been undertaken, there are no records or documents concerning complaints of the kind made by DJW.
Accordingly a permanent stay was granted.
In relation to reasonable enquiries the court held at [215] – [216]:
As the State submits, DJW pleads a case which identifies specific alleged incidents of sexual abuse. It is those particular incidents which underpin the particular case that the State must meet if the matter proceeds to trial. The State’s obligation to make all reasonable enquiries obviously extends to investigating those particular incidents and the potential availability of documents and witnesses in respect of those matters. The State has made those enquiries. I do not accept that its obligation extends further to require it to undertake extensive enquiries in respect of other residents who may have been at the dormitories at the relevant times to see what they may have to say. In circumstances where DJW does not claim that any of the incidents were witnessed by any other person and he is unable to identify any other alleged perpetrator beyond those identified in his statement, affidavit and ASOC, I do not consider it is incumbent upon the State to undertake the wide ranging and general investigations and enquiries for which DJW contends.
Whilst it may be the case that other persons who have been identified by DJW’s lawyers as former residents of the dormitories may be available as potential witnesses who could give evidence of the general circumstances of the dormitories and the supervision, monitoring and management of the dormitories by the State’s employees and agents, there is not in my view a realistic possibility that such further enquiries and investigations would unearth witnesses who may be able to give evidence that would bear directly, or indirectly, upon the occurrence of the alleged incidents of sexual abuse perpetrated against DJW.
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