Chalmers v Leslie & Anor [2020] QSC 343, avaiilable on AUSTLII, concerned a claim alleging sexual assaults on the plaintiff by his maternal grandfather (the first defendant). The plaintiff also sought damages from his mother on the basis that she owed him a duty of care to avoid him suffering harm (and in particular, psychiatric injury arising from physical and sexual abuse).
The first defendant grandfather (by his litigation guardian) filed a defence alleging that he was unable, by reason of severe dementia, to provide instructions in relation to the claim or to give evidence about the allegations or to give instructions during any trial. The plaintiff did not dispute that.
At no time prior to the onset of his dementia was the first defendant ever confronted by the plaintiff with the allegations of sexual assault. As a result, there is no record of his response to them. Nor was there any useful documentary evidence hich might be able to be used with respect to the likelihood or otherwise of the alleged assaults having taken place. It was not suggested that the second defendant (the mother) could give any direct evidence about the alleged abuse.
However the first defendant pleaded guilty in 2003 to three charges of indecent assault. These offences had occurred while he was a teacher at a school in Brisbane (they were not related to the plaintiff). The Court held at [31] that similar fact evidence is admissible in civil proceedings. But where, as here, the circumstances of the first defendant have rendered a trial impossible of being conducted fairly, the admission of evidence about which the first defendant can give no instructions, would only render the trial more unfair.
Accordingly the Court held that the first defendant’s medical condition would render a trial of this action so unfair to him, as to require that the action be stayed.