Mixed messages on sexual assault and the statute of limitations: Stingel v. Clark, the Ipp 'reforms' and an argument for change.

• Jurisdiction: Australia
• Date: 01 August 2008
• Author: Sarmas, Lisa

[This article examines the application of limitation periods to civil actions for sexual assault, with particular reference to the High Court of Australia's decision in Stingel v Clark and the 'reforms' enacted pursuant to the recommendations of the Ipp Report. In Stingel v Clark, a majority of the High Court held that under the Limitation of Actions Act 1958 (Vic) as it stood at the relevant time, the limitation period would only begin to run from the time the survivor of the sexual assault recognised the connection between the assault and the harm resulting from it. This article argues that the case was correctly decided both on grounds of correct statutory interpretation and on sound public policy. It then reviews changes that have been enacted to limitation periods in Victoria and other Australian jurisdictions based on the recommendations of the Ipp Report. The article is critical of the fact that the effect of the changes in Victoria has been to erode the extension of time benefits conferred by the High Court's decision. It then examines the relevant statutory limitations provisions throughout Australia and argues that these are inconsistent, unduly complex and inadequate in the context of civil sexual assault actions. The article concludes that the only way to ensure that a consistent and just approach is taken to the issue is to enact simple and uniform legislation throughout Australia which completely eliminates the time bar in sexual assault actions.]

CONTENTS I Introduction II Stingel v Clark A The Background to the Case B Is an Intentional Trespass a Breach of Duty? 1 The Legislative History (a) The Tucker Committee. (b) The Context of Subsequent Legislative Amendments (c) The 'Decisional Context' in Which s 5(1A) Was Enacted 2 Jurisprudential Analysis of the Phrase 'Breach of Duty'. 3 An Anomalous Result C Is PTSD of Delayed Onset a 'Disease or Disorder Contracted'? 1 The Court of Appeal Majority: Section 5(1A) Applies to Insidious Diseases Only 2 The High Court: Unambiguous Language 3 PTSD as a 'Disease or Disorder': Taking PTSD Seriously III The Current Position in Victoria: The Ipp Report and Subsequent Amendments to the Limitation of Actions Act 1958 (Vic) A The Ipp 'Reforms' in Victoria B Evaluation of the Ipp 'Reforms' in Victoria 1 The 12-Year Long-Stop Period: A Step Backwards for Survivors in Victoria 2 The Problem with Leaving the Extension of Time up to the Court's Discretion: The Story of Joanne McGuinness IV The Position in Other Australian States and Territories V The Need for Change: Towards the Abolition of the Time Bar VI Conclusion I INTRODUCTION

The High Court of Australia's decision in Stingel v Clark (1) is an important step forward for survivors of childhood sexual assault who pursue a 'late' (2) civil claim against the perpetrator. The High Court decided that, based on the Limitation of Actions Act 1958 (Vic) ('the Act') as it stood at the relevant time, the limitation period for bringing an action only began to run from the time the survivor recognised the connection between the assault and the harm resulting from it. (3) Unfortunately, legislative amendments introduced in Victoria following the Review of the Law of Negligence: Final Report ('Ipp Report') (4) have largely eroded the Victoria-specific extension of time benefits offered by the High Court's decision. (5) But for survivors like Ms Stingel who commenced late compensation proceedings before the 'reforms' took effect, (6) the decision provided a short-lived opportunity to at least have their cases heard. At a broader, continuing and symbolic level, the decision implicitly acknowledges that a delayed complaint of sexual assault is not to be treated with automatic suspicion and that, moreover, the delay in bringing an action is often a product of the consequences of the specific psychological harm suffered by the survivor. The decision supports the principle that the damage caused by sexual assault can be long lasting, suppressed and extremely serious. This article argues that it is high time for Australian state legislatures to also recognise this fact by following the lead of a number of overseas jurisdictions which have abolished the limitation period for civil sexual assault actions. (7)

The central issue in Stingel v Clark was whether an action for sexual assault could proceed in the context of a 31-year lapse from the alleged assault to the commencement of proceedings. This involved the resolution of two complex questions of statutory interpretation relating to the Act as it then stood. First, does an intentional trespass (the sexual assault) amount to a 'breach of duty' within the meaning of the Act? (8) Secondly, is post-traumatic stress disorder ('PTSD') of delayed onset a 'disease or disorder contracted' within the meaning of the Act? (9) The High Court's affirmative answer to the first question (10) marked a departure from the problematic position taken by the House of Lords in Stubbings v Webb (11) and the Supreme Court of Ireland in Devlin v Roche (12) in their interpretation of similarly worded legislation. (13) On the second issue, the High Court accepted that PTSD of delayed onset is 'a disease or disorder contracted', even though it is a delayed consequence of a 'traumatic' (rape) rather than 'insidious' injury. (14) In doing so, the Court overruled a distinction that had been made in earlier authorities between 'insidious' injuries and 'traumatic' or 'frank' injures, which had limited the benefits of the relevant statutory extension provision to cases of the former. (15)

This article argues that the decision of the High Court in Stingel v Clark should be applauded on the grounds of both correct statutory interpretation and public policy. It is, however, critical of the fact that Ms Stingel was only able to have her case heard after a complex and longwinded legal battle about the meaning of statutory language, rather than on the sound policy ground of giving childhood survivors of sexual assault the time they need to decide whether or not to bring an action. This article examines the complex, varied and (it is argued) inadequate nature of the relevant statutory limitations provisions applying throughout Australia and, in particular, the Ipp Report-inspired amendments to the Victorian Act that have eroded the benefits of Stingel v Clark in that state. The article then argues that the only way of ensuring a consistent and just approach for survivors is to enact simple and uniform legislation which completely eliminates the time bar in sexual assault actions.

II STINGEL V CLARK

A The Background to the Case

In August 2002, Carol Anne Stingel commenced an action for damages against Geoffrey Clark in the County Court of Victoria. (16) She alleged that in 1971, when she was 16 years of age, she was assaulted and raped on two occasions by a group of men led by Mr Clark. (17) She alleged that the assaults and rapes occurred in the Warrnambool Municipal Gardens in March and at Lady Bay in Warrnambool in April. (18) She claimed that she suffered PTSD of delayed onset as a result of the alleged assaults and rapes. (19) Her cause of action was based on the tort of trespass to the person.

Ms Stingel claimed that it was only around 1999-2000 that she made a connection between her injuries and the alleged assaults and rapes. (20) She said in evidence that for most of her life she believed that she had recovered from the attacks, but when in 1999 she started seeing Mr Clark on television she began to suffer from panic attacks and nightmares. (21) She reported the alleged rapes and assaults to police in July 2000, after she saw the publicity received by Mr Clark as a consequence of his election as Chair of the Aboriginal and Torres Strait Islander Commission and after she had heard about accusations of sexual assault made against Mr Clark by another woman. (22) Mr Clark denied the factual allegations of assault and rape and pleaded that the proceedings were time-barred by the Act. (23)

In November 2002, Ms Stingel sought a declaration that her case was not statute-barred under s 5(1A) of the Act. (24) In the alternative she sought an order for an extension of time under the discretionary provisions of s 23A. The s 23A application was, however, abandoned at the commencement of the hearing. (25)

Section 5(1)(a) of the Act prescribed a limitation period of six years for actions in tort. This was qualified by s 5(1A), which provided as follows:

5. Contracts and torts

...

(1A) An action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by any person may be brought not more than six years from, and the cause of action shall be taken to have accrued on, the date on which the person first knows--

(a) that he has suffered those personal injuries; and

(b) that those personal injuries were caused by the act or omission of some person. (26)

The effect of s 5(1A) then was to qualify the six-year limitation rule. For cases that could be brought within its terms, the limitation period would only start to run from the time that the person first knew both that they had suffered an injury and that the injury was caused by the act of a person. The question of whether Ms Stingel's claim could be brought within the section turned on the interpretation of the italicised words in the extract above. The first issue was whether the words 'breach of duty' encompassed the intentional tort of trespass. The second involved a consideration of whether PTSD of delayed onset was a 'disease or disorder contracted by any person'.

In the County Court, (27) Judge Hanlon held that the case fell within s 5(1A) of the Act, striking out the...