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Accident Compensation Cases

B v C (HC, 07/05/99)

Judgment Text

MASTER VENNING (reserved):
Introduction 
The plaintiff was sexually abused by her uncle, the defendant. The abuse continued for a period of 7 years. It started in early March 1979 when she was 15 and continued until late March 1986 by which time she was aged 22. 
In October 1994 she laid a complaint with the police. The defendant was charged. In September 1996 the defendant was convicted of the abuse following a criminal trial and in October 1986 was sentenced to imprisonment for a period of 4 years. These proceedings were filed on 13 August 1997. In these proceedings the plaintiff seeks exemplary damages against the defendant for the assault to her person and breach of an alleged fiduciary duty owed by the defendant to her. There also appears to be a claim for compensatory damages for breach of fiduciary duty. Mr Hall conceded that that last claim could not stand in light of the provisions of s 8(3) and s 14 of the Accident Rehabilitation and Compensation Insurance Act 1992. It is dismissed. 
The defendant applies to strike out the plaintiff's claims for exemplary damages. The defendant says the claims are barred by the provisions of the Limitation Act 1950 and also by the decision of the Court of Appeal in Daniels v Thompson [1998] 3 NZLR 22 (CA), confirmed by the Privy Council in W v W [1999] 2 NZLR 1; (1999) 16 CRNZ 336 (PC). 
Principles 
The principles to apply to a strike out application such as this have recently been summarised by the Court of Appeal in A-G v Prince & Gardner [1998] 1 NZLR 262; (1997) 16 FRNZ 258 at p 267; p 263 (CA). In short they are: 
(a)
It is assumed the facts pleaded are true. 
(b)
The proceeding will only be struck out if the causes of action are clearly untenable. 
(c)
The jurisdiction is to be exercised sparingly. 
(d)
The jurisdiction is not excluded by difficult questions of law which may require extensive argument. 
(e)
The Court will be slow to strike out where novel categories of duty of care or developing areas of the law are involved. 
Section 396 Accident Insurance Act 1998 
Prima facie the plaintiff no longer has a cause of action at law following the decision of Daniels v Thompson and the subsequent Privy Council decision referred to above. However, s 396 of the Accident Insurance Act 1998 must be considered. It provides that no rule of law shall prevent a person bringing proceedings for exemplary damages even though the defendant has been convicted or acquitted of an offence involving the conduct concerned in the claim. The section was enacted in December 1998 after the decision of Daniels v Thompson. It comes into effect on 1 July 1999. 
At the outset of his submissions for the plaintiff Mr Hall submitted that the defendant's application should be adjourned until after 1 July 1999. However, by the conclusion of his submissions his stance had shifted to the extent that he accepted in light of the above authority the proceedings would have to be dismissed, but on the basis no cause of action existed by reason of the Daniels v Thompson decision rather than by reason of any limitation bar. He indicated that the plaintiff might well wish to seek leave to issue fresh proceedings after 1 July 1999 when s 396 of the Accident Insurance Act 1998 comes into force and effect. 
While Mr Till relied upon Daniels v Thompson as an additional ground to strike these proceedings out, it was his primary submission that the proceedings should be dismissed on the ground they are statute barred; that the defendant has an absolute defence to the claim for damages arising out of bodily injury by reason of the Limitation Act and the cause of action based on fiduciary duty must also be struck out by analogy. He submitted that the Court should rule on those issues. 
I deal with the matter in this way. This application must be dealt with in accordance with the law as it now stands. On that basis, in light of the decision in Daniels v Thompson and the recent Privy Council decision the plaintiff is currently barred from pursuing proceedings for exemplary damages against the defendant arising out of the sexual abuse for which the defendant has either been convicted, or in relation to two charges, acquitted. The plaintiff's claim can be struck out on that basis alone as not disclosing any reasonable cause of action. 
However, the issue of the effect of the Limitation Act was extensively argued before me by both counsel and as requested by Mr Till I propose to consider in the alternative whether, in any event, the claim would be barred by the provisions of the Limitation Act. 
Limitation Act 
The defendant relies upon s 4(7) of the Limitation Act 1950 in relation to the claim for exemplary damages arising out of the bodily injury inflicted upon her by the defendant. 
Section 4(7) provides: 
“(7) An action in respect of the bodily injury to any person shall not be brought after the expiration of 2 years from the date on which the cause of action accrued unless the action is brought with the consent of the intended defendant before the expiration of 6 years from that date: 
Provided that if the intended defendant does not consent, application may be made to the Court, after notice to the intended defendant, for leave to bring such an action at any time within 6 years from the date on which the cause of action accrued; and the Court may, if it thinks it is just to do so, grant leave accordingly, subject to such conditions (if any) as it thinks it is just to impose, where it considers that the delay in bringing the action was occasioned by mistake of fact or mistake of any matter of law other than the provisions of this subsection or by any other reasonable cause or that the intended defendant was not materially prejudiced in his defence or otherwise by the delay. ”
The issue is when the cause of action accrued. 
Defendant's case on limitation 
For the defendant Mr Till submitted that the cause of action accrued when the plaintiff ceased to be under a disability and turned 20 in relation to the abuse which occurred when she was a minor, and on the date of the abuse after she turned 20. On that basis he submitted that the last date the cause of action accrued was 18 March 1986. He submitted that therefore the time for issuing the claim based on bodily injury as of right expired 17 March 1988 and the further period provided for the issue of proceedings with leave of the Court under the Act expired 17 March 1992, some 5 1/2 years before the issue of these proceedings. 
Plaintiff's case on limitation 
For the plaintiff Mr Hall first submitted there was an argument the plaintiff did not know whether or not true consent had been displaced and therefore time did not start running until the verdict of guilty was passed by the jury on the defendant in the criminal trial in September 1996. With respect, that cannot be right. Whilst the jury's verdict may have been confirmation to the plaintiff of the abuse she had suffered, the question for these proceedings must be to determine when she discovered, or reasonably ought to have discovered, all the facts making up her cause of action which includes recognition of the lack of true consent. That exercise is not dependent upon some third party finding about the matter. 
Discoverability 
In P v T [1998] 1 NZLR 257; (1997) 11 PRNZ 340 the appellant had been sodomised by the respondent in October 1980. She sought leave to issue proceedings against the respondent in February 1997. Leave was declined in the High Court, Gendall J finding that at least by 1986 when the appellant, as a patient at Ashburn Hall, disclosed to another patient that she had been sodomised by the respondent and attempted to convey the incident to a psychiatrist by letter, she was aware of her lack of consent. The decision was appealed. In delivering the decision of the Court of Appeal on the appeal the President stated at p 260; 343: 
“Upon the facts it is an uncomplicated case. It does not raise any question as to reasonable discoverability. Indeed, it is inapt to speak of later discovering what she had known at the outset. ”
That case was referred to in Daniels v Thompson where the majority of the Court confirmed at p 53: 
“As this Court said in S v G at p 686 a cause of action accrues when all of its elements are subsisting, though it may be postponed where the plaintiff is under a disability or where the plaintiff reasonably has not discovered all the elements. When the tort is trespass to the person and the plaintiff is not a child the question of reasonable discoverability will seldom arise (P v T [1988] 1 NZLR 257). ”
Mr Hall relied upon the following passage from the decision of S v G [1995] 3 NZLR 681; (1995) 8 PRNZ 465 where the Court, in considering a claim for exemplary damages based upon trespass to the person, stated at p 687; p 470: 
“With reference to the cause of action for assault and battery in which damage is not an element, Blanchard J applied the reasonable discoverability approach to the recognition of the lack of true consent to the conduct (which is an element of the cause of action). On appeal no argument was directed to that point — it seems on the basis that if reasonable discoverability is to be applied in cases such as this, it can be invoked in this manner also. We accept that as a correct view. ”
Mr Hall submitted that on the basis of that statement the plaintiff could not be said to have reasonably discovered or appreciated her lack of true consent until 16 October 1994 when she complained to the police regarding the defendant's actions. He submitted that at the least leave should be granted to her to bring these proceedings out of time. 
I am unable to accept that submission. Even accepting for the purposes of argument that it was not until 16 October 1994 the plaintiff appreciated there had been no real true consent by her, I would not at this stage of the proceedings be prepared to grant leave to commence the proceedings out of time to avoid the impact of the Limitation Act. 
As noted, the proceedings were not commenced until August 1997. On Mr Hall's submission on this point, leave was required pursuant to the proviso to s 4(7) of the Act at the time the proceedings were issued. No application for leave was made. No notice as required by the proviso to s 4(7) was given prior to the issue of proceedings. While that is not necessarily fatal (Parris v TVNZ (1996) 9 PRNZ 444 and the cases cited therein) these proceedings should not have been commenced without any application for leave. The only reference to leave is in the amended notice of opposition to the defendant's application. That amended opposition was filed 2 days before the hearing of this application to strike out. Amongst the grounds of opposition to the strike out the plaintiff says: 
“The claim is not barred by the Limitation Act 1950 … and if the claim is statute barred the plaintiff seeks leave pursuant to s 4(7) Limitation Act 1950 to proceed with the claim out of time on the grounds that it would be reasonable and just to grant leave. ”
While Mr Till did not take any point about the matter being dealt with in that way, I am not prepared to accept that as an appropriate way for an application for leave to be put before the Court. The application for leave should be filed before, or at the very least with, the substantive proceedings and should be supported by sufficient evidence to enable the Court to deal with the application. 
However, in any event, there is no need to consider the issue of leave as in my view the plaintiff's cause of action accrued in 1989 at the latest, and on that basis the proceedings are outside the extended period provided for in s 4(7) in any event. 
In S v G, immediately after the passage relied upon by Mr Hall, the Court of Appeal acknowledged that recognition of the absence of true consent could well emerge at a different and earlier time than the discovery of the link between psychological damage and the abuse. In P v T the Court noted that if it is suggested there is a disability by way of unsoundness of mind for Limitation Act purposes then that alleged unsoundness must result from a demonstrable and recognised mental illness or disability and must sufficiently inhibit the capacity to sue so as to preclude the plaintiff from bringing proceedings rather than just being an inability to face up to the process of suing. 
There is no evidence in this case that the plaintiff was suffering from a demonstrable and recognised mental illness or disability. An agreed statement of facts has been submitted to the Court which attaches the statement made at depositions in the criminal proceedings by the plaintiff. It also records the counselling and treatment the plaintiff has received over time. The first counselling was in January 1989. That was with a private counsellor. Next, the plaintiff spent a period of just over a month at Queen Mary Hospital at Hanmer in June 1989. Finally, the plaintiff had counselling in 1992 at Seaview, Hokitika. It is agreed that the plaintiff has suffered a number of ongoing effects as a result of the abuse. Without in any way belittling the effect of those matters upon the plaintiff's life, they do not amount to recognised mental illnesses or disabilities sufficient to preclude the plaintiff from bringing proceedings against the defendant. 
As noted in S v G at p 689; p 472: 
“It must be borne in mind that the remedies claimed are not compensation for the appalling psychological harm suffered by the respondent — which is not available to her — but for exemplary damages to be visited on the appellant for his alleged abusive conduct. Knowledge of the fact that it was abusive therefore gave her all that made up her causes of action. ”
Whilst that comment was made in relation to the breach of fiduciary duty claim, it applies equally to the assault and battery claim. Knowledge and appreciation of the fact she did not consent made up the plaintiff's cause of action. Mr Till identified excerpts from the plaintiff's evidence at the depositions hearing which support the view that she knew from an early stage that she had been abused and did not consent. Comments such as “I was too scared to say no” run throughout her depositions evidence. 
However, even more significantly, in the agreed statement of facts it is recorded that during June/July 1989 at Queen Mary Hospital: 
“She told the staff there that she needed to work on rape issues. 
She told the staff that when she was 15 years old her uncle who was married with two children raped her which she kept quiet to keep the peace. 
She told the staff on 1 June 1989 that there was a sexual abuse issue with her uncle who had raped her at age 15. ”
By 1989 when the disclosure was made the plaintiff was 25 years old. The last abusive incident occurred in 1986, over 3 years prior to her disclosures to the staff at Queen Mary Hospital. The agreed facts disclose that by 1989 the plaintiff recognised she had been raped by her uncle. That is a clear recognition of lack of consent to the act of intercourse. By the time of the disclosure in June 1989 the plaintiff knew she had been abused by the defendant against her consent. While it is understandable the plaintiff may have taken some time after that to lay a complaint against the defendant, it does not affect that she knew she did not consent. 
The extended 6-year period therefore expired in June 1995. 
These proceedings were not issued for over 2 years after that. 
For those reasons, if necessary, I would have found that the plaintiff's cause of action for bodily injury is barred by the provisions of the Limitation Act. 
In Daniels v Thompson the Court of Appeal accepted it was appropriate to apply the provisions of the Limitation Act by analogy to an alternative claim for breach of fiduciary duty in these circumstances (at p 54). For the same reason that cause of action would also be struck out. 
Conclusion 
The plaintiff's proceeding must be struck out as it discloses no cause of action in light of the decision in Daniels v Thompson. However, if necessary I would have been prepared to strike out the plaintiff's claims on the basis they are barred by the provisions of the Limitation Act in any event. 
Costs 
Mr Hall advised the plaintiff is in receipt of partial legal aid. The position is not completely clear. Costs are reserved to be dealt with by way of memorandum if necessary. Proceeding struck out. 

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