Stingel v Clark

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ,Callinan,Heydon,Crennan JJ,Gummow J,KIRBY J,Hayne J
• Judgment Date: 20 July 2006
• Neutral Citation: [2006] HCA 37,2006-0720 HCA E
• Docket Number: M153/2005
• Date: 20 July 2006

Carol Anne Stingel

Appellant

and

Geoffrey Clark

Respondent

[2006] HCA 37

Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon AND Crennan JJ

M153/2005

HIGH COURT OF AUSTRALIA

Stingel v Clark

Limitation of Actions — Appellant alleged respondent had raped and assaulted her in 1971 — Appellant alleged that she suffered post-traumatic stress disorder of delayed onset in 2000 and became aware of the connection between this disorder and the rapes and assaults in the same year — Proceedings were commenced for trespass to the person in 2002 by which time the general limitation period of six years for commencing actions in tort stipulated in s 5(1)(a) of the Limitation of Actions Act 1958 (Vic) (‘the Act’) had expired — Whether s 5(1A) of the Act applied to extend the limitation period from the date she first knew of those injuries and their causal connection — Whether a trespass to the person is an action for a ‘breach of duty’ — Whether the injury alleged is a ‘disease or disorder contracted’.

Words and phrases — ‘breach of duty’, ‘disease or disorder contracted’.

Limitation of Actions Act 1958 (Vic), ss 5(1)(a), 5(1A), 23A.

Representation

R P Gorton QC with T J Seccull for the appellant (instructed by Maurice Blackburn Cashman)

R J Stanley QC with C M O'Neill for the respondent (instructed by Coadys)

T J Casey QC with J H L Forrest QC and A J M Moulds seeking leave to intervene on behalf of the Commonwealth of Australia (instructed by Australian Government Solicitor)

J H Kennan SC with K D Mueller seeking leave to intervene on behalf of Carl Henning Wright (instructed by Hollows Lawyers)

ORDER

1. Appeal allowed with costs.

2. Set aside orders 2 and 3 of the Court of Appeal of the Supreme Court of Victoria made on 12 May 2005 (as amended by order made on 8 June 2005) and, in their place, order that the appeal to that Court is dismissed with costs.

1 Gleeson CJ, Callinan, Heydon AND Crennan JJ. The appellant, who was born in 1955, alleges that in 1971 she was assaulted and raped by the respondent. She alleges that, in consequence, she suffered injury, in the form of post-traumatic stress disorder of delayed onset. She also says that she first became aware of the connection between the assaults and rapes, and the injury, in 2000. In August 2002, the appellant brought an action for damages against the respondent in the County Court of Victoria. She claims aggravated, exemplary and punitive damages. Her cause of action is for trespass to the person.

2 The merits of the appellant's case have not been tried. The present appeal concerns the application of the Limitation of Actions Act 1958 (Vic) (‘the Act’). For actions founded on tort, s 5(1)(a) of the Act prescribes a general limitation period of six years from the date on which the cause of action accrued (in the case of trespass, from the date of the trespass). If that period applied, it had long since expired in 2002. The general limitation period of six years is subject to certain qualifications, which have varied in a number of respects since 1958. The legislative history is important.

3 In 1955, the Victorian Parliament enacted a general Limitation of Actions Act, which came into effect on 1 January 1956. The topic had been under consideration by the Statute Law Revision Committee for several years. That committee, in turn, had examined the Report of the Tucker Committee in the United Kingdom. It had also received evidence from Mr Justice O'Bryan, in which he expressed his understanding of some aspects of what was intended by the Tucker Committee. The Victorian Parliament followed the precedent set by the United Kingdom and provided, in s 5(1) of the 1955 Act, a general limitation period of six years, which was qualified by s 5(6). The qualification was expressed as follows:

‘No 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 to any person, shall be brought after the expiration of three years after the cause of action accrued.’

4 Sections 5(1) and 5(6) were reproduced in the 1958 Act, which, in its amended form, is the legislation with which we are concerned.

5 Section 23A was introduced into the Act by amendment in 1973 1. It applied to causes of action in respect of personal injuries. It conferred upon a court a discretionary power to extend the limitation period. The conditions subject to which the power could be exercised were specified. An order under the section could be made on application by a person claiming to have a cause of action for damages for negligence, nuisance or breach of duty (whether the duty existed by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) where the damages claimed consisted of or included damages in respect of personal injuries to any person. Plainly, that part of the language of s 23A mirrored that of s 5(6) which, in turn, followed the language of the United Kingdom legislation enacted in response to the Report of the Tucker Committee. When giving evidence to the Statute Law Revision Committee, Mr Justice O'Bryan had referred to a passage in that Report which said that trespass to the person was not intended to be covered by the language which introduced the stricter three year limitation period as a qualification to the more general six year period. He said that his understanding was that ‘assault which [causes] gross personal bodily injury would certainly be covered, but a mere trespass … would not be covered’ 2. The appellant does not invoke s 23A in this case, but its terms are important to the issues of construction which must be decided.

6 In 1983, s 5(6) was repealed 3. Section 23A was amended, in a manner that is not presently material. A new s 5(1A) was inserted, which is of direct relevance. It provided 4:

‘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[ 5] from 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.’

7 In 1989, the words ‘and the cause of action shall be taken to have accrued on’ were added after the words ‘six years from’ 6. The language of the first part of s 5(1A) mirrored that of the repealed 5(6), and of s 23A. The respondent denies the application of s 5(1A) on two grounds. The first ground, upon which the appellant succeeded in the Court of Appeal of Victoria 7, is raised by notice of contention. If upheld, it would require this Court to overrule a line of authority in Victoria, going back to 1963, as to the meaning of the statutory language. The argument is that the appellant's action is not an ‘action for damages for negligence nuisance or breach of duty’. It is said that an action for trespass to the person is not an action for breach of duty. If that is so, the six year limitation period in s 5(1) applies, without qualification by s 5(1A). The second ground, upon which the respondent succeeded in the Court of Appeal of Victoria (Winneke P, Charles and Eames JJA; Warren CJ and Callaway JA dissenting), is that the facts alleged by the appellant do not bring the case within the concept of a ‘disease or disorder contracted’ so as to attract the operation of s 5(1A). That ground is the subject of the appellant's appeal. It is convenient to deal with the grounds in that order. The second point only arises if the notice of contention fails.

The notice of contention

8 The Court of Appeal in the present case followed the Victorian authority earlier mentioned. The Victorian decisions were in line with decisions of the English Court of Appeal 8 on comparable United Kingdom legislation, but the decisions of the English Court of Appeal were overruled by the House of Lords in Stubbings v Webb9. The decision of the House of Lords was followed by the Supreme Court of Ireland in Devlin v Roche10. The Supreme Court of Ireland,

noting that ‘there are two perfectly legitimate viewpoints on this question’ 11, decided to follow the House of Lords rather than the Court of Appeal of Victoria.

9 The learned authors of the 19th edition of Clerk & Lindsell on Torts described Stubbings v Webb as controversial 12. If the respondent's argument is correct, it produces a surprising result. Although in this case we are concerned directly with s 5(1A), the respondent's argument must apply equally to s 23A. It means that an injured plaintiff who is the victim of an intentional trespass is worse off, under the Act, than a plaintiff who is a victim of negligence. It means that there is a discretionary power to extend the limitation period in favour of a plaintiff who is run down by a negligent driver, but not in favour of a plaintiff who is deliberately assaulted. In the case of injuries of the kind dealt with by s 5(1A), assuming the other conditions are satisfied, the statute extends the limitation period in the case of a person who was neglected as a child, but not one who was sexually abused. It is difficult to understand why the policy of the Act would be to discriminate in that fashion.

10 The Victorian Parliament enacted both ss 23A and 5(1A) after it had been decided in 1963 by Adam J, in Kruber v Grzesiak13, that an action for trespass to the person,...