Stingel v. Clark
(2006) 228 ALR 229[2006] HCA 37
(Judgment by: Hayne J)
Stingel v.
Clark
Judges:
Gleeson CJ
Gummow J
Kirby JJ
Hayne JJHeydon JJ
Callinan JJ
Crennan JJ
Judgment date: 20 July 2006
Canberra
Judgment by:
Hayne J
123 In 2002 the appellant commenced an action against the respondent in the County Court of Victoria. By her action the appellant claimed damages for personal injury allegedly suffered as a result of the respondent's assault upon her on two separate occasions in 1971. She was aged 16 years at the time of the alleged assaults. The appellant alleged that she suffered post-traumatic stress disorder of delayed onset and that she became aware of the connection between the assaults and the disorder only in 2000. Is her action for damages for trespass to the person statute-barred?
124 When the appellant commenced her action, the Limitation of Actions Act 1958 (Vic) (the Act) contained three provisions of particular relevance. First, s 5(1)(a) provided that, subject to s 5(1A), "actions founded on tort including actions for damages for breach of a statutory duty" "shall not be brought after the expiration of 6 years from the date on which the cause of action accrued". The hinge about which that provision turned was "actions founded on tort".
125 The second relevant provision is s 5(1A) (to which the general provision of s 5(1)(a) was made subject). Section 5(1A) dealt with:
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.
The Act then provided that such an action "may be brought not more than 6 years from, and the cause of action shall be taken to have accrued on, the date on which the person first knows" two matters - (a) "that he has suffered those personal injuries" and (b) "that those personal injuries were caused by the act or omission of some person". The hinge about which s 5(1A) turned was "an action for damages for negligence nuisance or breach of duty ... where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries".
126 The third provision of present relevance is s 23A. It turned about the same hinge as s 5(1A). That is, s 23A applied to "any action for damages for negligence nuisance or breach of duty ... where the damages claimed consist of or include damages in respect of personal injuries to any person". Section 23A permitted a court to extend the period within which an action on such a cause of action might be brought.
127 The issues in this appeal concern the operation of s 5(1A). In particular, is the appellant's action an action of the kind with which that provision dealt: is it "an action for damages for negligence nuisance or breach of duty"? Secondly, is the appellant's claim for damages which "consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by any person"? Both questions should be answered in the affirmative. The appeal should be allowed.
128 As the joint reasons of Gleeson CJ, Callinan, Heydon and Crennan JJ record, there is a deal of relevant legislative history which lies behind the three provisions of the Act that have been mentioned: s 5(1)(a) and (1A) and s 23A.
129 The language used as the hinge in ss 5(1A) and 23A ("an action for damages for negligence nuisance or breach of duty ... where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries") appears in provisions intended to ameliorate the effect of the general bar provided in s 5(1)(a) in respect of "actions founded on tort". But that has not always been so. The language found in ss 5(1A) and 23A was originally used in s 5(6) of the Limitation of Actions Act 1955 (Vic) (the 1955 Victorian Act), a provision prescribing a shorter limitation period for the actions with which it dealt than the general limitation period of 6 years for actions founded on tort. And it was for this same purpose that the language had been used in the analogous English legislation [145] considered by the House of Lords in Stubbings v Webb , [146] and was later to be used in equivalent Irish legislation [147] considered by the Supreme Court of Ireland in Devlin v Roche . [148] The purpose of s 5(6) of the 1955 Victorian Act was to provide a shorter limitation period for some actions than would otherwise have applied. As an exception to a general rule, it may well have been open to argue that it should be narrowly construed. Yet, in the Victorian courts, [149] the provision was construed as engaged in actions alleging trespass to the person in which damages for personal injury were claimed.
130 That construction of s 5(6) was not inevitable. The contrary conclusion was reached in Stubbings and Devlin . The effect of the construction adopted by the Victorian courts was to treat actions for damages for personal injury (however framed) as being subject to an abbreviated, 3-year, limitation period. Powerful arguments could have been, and can now be, mounted against construing the words "an action for damages for negligence nuisance or breach of duty ... where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries" as embracing all forms of claims for damages for personal injuries. It may readily be acknowledged that trespass to the person is not easily accommodated by the expression "negligence nuisance or breach of duty" and that, if it is to be accommodated, the parenthetical amplification of "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)" - does not assist the construction that was favoured in Victoria, both before [150] and after [151] the House of Lords had reached the opposing view in Stubbings . But for present purposes, the critical fact is that the received understanding in Victoria of the reach of s 5(6) was that it embraced all forms of action for damages for personal injury.
131 It was in that setting that those who drafted what were to become ss 5(1A) and 23A drafted provisions intended to confer advantages on plaintiffs. Those who drafted those provisions used, as the hinge of each of the new provisions, words which had been construed as imposing a shorter limitation period on all those who claimed damages for personal injuries, no matter how they framed their claim. That is, those who drafted ss 5(1A) and 23A sought to make separate provision for personal injury claims.
132 In the present matter, the respondent contended that s 5(1A) applies to only some kinds of claims for damages for personal injuries. On the respondent's construction, the subsection would apply to claims for damages for personal injury framed as actions in negligence, nuisance, breach of contract or breach of statutory duty, but not if the action was framed as an action for trespass to the person. There is no evident legislative policy for distinguishing between claims in this way. Despite the power of the argument that contrasts "negligence nuisance or breach of duty" with "actions founded on tort including actions for damages for breach of a statutory duty", the better view of s 5(1A), understood in its historical context, is that it embraced all actions for damages for personal injury. For these reasons, and the reasons given by Gleeson CJ, Callinan, Heydon and Crennan JJ, the respondent's contention should be rejected.
133 On the issue of whether the appellant's claim is a claim for damages which "consist of or include damages in respect of personal injuries", I agree with Gleeson CJ, Callinan, Heydon and Crennan JJ.
134 The appeal should be allowed and the consequential orders made in the form proposed in the joint reasons.
Section 3 of the Limitation of Actions (Personal Injuries) Act 1972 (Vic).
Mason v Mason [1997] 1 VR 325 at 328 (Mason).
Section 3(c) of the Limitation of Actions (Personal Injury Claims) Act 1983 (Vic).
Section 3(b) of the Limitation of Actions (Personal Injury Claims) Act.
See now s 3(3) of the Limitation of Actions (Amendment) Act 2002 (Vic).
Section 3(a) of the Limitation of Actions (Amendment) Act 1989 (Vic).
Clark v Stingel [2005] VSCA 107 (Clark).
Letang v Cooper [1965] 1 QB 232 ; [1964] 2 All ER 929 (Letang); Stubbings v Webb [1992] QB 197 ; [1991] 3 All ER 949 (Stubbings (CA)).
[1993] AC 498 ; [1993] 1 All ER 322 (Stubbings (HL)).
[2002] 2 IR 360 (Devlin).
Devlin at 367 per Geoghegan J.
Sweet & Maxwell, London, 2006, p 2000, paras 33-39. See also D Oughton, J Lowry and R Merkin, Limitation of Actions, Lloyds of London Press, London, 1998, pp 278-81; A McGee, Limitation Periods, 4th ed, Sweet & Maxwell, London, 2002, pp 129-31; A McGee, "Trespass and Limitation", (1993) 109 LQR, p 356; A McGee and J Scanlan, "Judicial Attitudes to Limitation", (2005) CJQ 460, pp 477-9.
[1963] VR 621 (Kruber).
Kruber at 623.
Letang at QB 241;All ER 934.
[1945] KB 11 at 18-19 ; [1944] 2 All ER 415 at 420 per Lord Greene MR.
Letang at QB 246-7;All ER 936-7.
Hayward v Georges Ltd [1966] VR 202 .
Long v Hepworth [1968] 1 WLR1299 ; [1968] 3 All ER 248 .
Cf Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309 at 324-5 8 ; 209 ALR 116 at 120 ; [2004] HCA 40 .
Stubbings (CA) at QB 205;All ER 953-4.
Mason at 330 per Callaway JA.
Victoria, Report from the Statute Law Revision Committee on Limitation of Actions, 1950, p 47.
Exemplified in S v W (Child Abuse: Damages) 1995 1 Fam Law R 862.
Section 3 of the Limitation of Actions (Amendment) Act 1989 (Vic), which also introduced s 5(1B) and (1C).
(2000) 3 VR 172 at 189 43-45 ; [2000] VSCA 230 (Mazzeo).
Clark at 81.
Clark at 80.
Mazzeo at 189 43-45.
Clark at 88-90.
Mazzeo at 178 9 per Winneke P.
[2005] VSCA 309 .
The Act since has been amended by the Limitation of Actions (Amendment) Act 2002 (Vic), by Pt 3 of the Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003 (Vic), by the Limitation of Actions (Amendment) Act 2004 (Vic), by the Limitation of Actions (Adverse Possession) Act 2004 (Vic) and by ss 47 and 48 of the Defamation Act 2005 (Vic), but it is not submitted that these changes bear upon the issue on this appeal.
Section 3 of the Statute of Limitations (Amendment) Act 1991 (Ir).
[1993] AC 498 ; [1993] 1 All ER 322 (Stubbings).
[2002] 2 IR 360 (Devlin).
The word "a" appears in s 23A(1), but not in s 5(1A), but this does not affect the construction of the expression.
Stubbings at AC 503;All ER 325-6.
Devlin at 363.
In s 23A(2), (3)(c)-(d) and (4).
(1957) 97 CLR 465 ; [1957] ALR 1145 (Williams). See also Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 245 ; 52 ALR 231 at 240 per Wilson J.
Williams at CLR 474;ALR 1149.
(1964) 111 CLR 384 ; [1965] ALR 788 (McHale); affirmed (1966) 115 CLR 199 ; [1966] ALR 513 .
[1959] 1 QB 426 ; [1959] 1 All ER 290 . See also Letang v Cooper [1965] 1 QB 232 ; [1964] 2 All ER 929 (Letang).
McHale at CLR 387-8;ALR 790-1; cf Hackshaw v Shaw (1984) 155 CLR 614 at 618-19 ; 56 ALR 417 at 420 (Hackshaw) per Gibbs CJ.
See the discussion by Dawson J in Hackshaw at CLR 671;ALR 458-9 and cf Letang at QB 239-40;All ER 932.
Clark v Stingel [2005] VSCA 107 .
[1997] 1 VR 325 (Mason).
Mason at 329.
[1963] VR 621 at 623. See also the statement by Murphy J in Macpherson & Kelley v Kevin J Prunty & Associates [1983] 1 VR 573 at 587 that torts are "breaches of a duty owed generally to one's fellow subjects" and that by Lord Denning MR in Letang (at QB 241;All ER 933): Our whole law of tort today proceeds on the footing that there is a duty owed by every man not to injure his neighbour in a way forbidden by law.
S Deakin, A Johnston and B Markesinis, Markesinis and Deakin's Tort Law, 5th ed, Clarendon Press, Oxford, 2003, p 19. See also G Fridman, The Law of Torts in Canada, 2nd ed, Carswell, Toronto, 2002, pp 9-11.
(1937) 58 CLR 479 at 505 ; [1937] ALR 597 at 605 ; (1937) 1A IPR 308 at 317. Professor Glanville Williams expressed a conclusion to similar effect in "The Foundation of Tortious Liability", (1941) 7 CLJ 111 , pp 131-2.
See Williams at CLR 474;ALR 1149; Collins v Wilcock [1984] 1 WLR 1172 at 1177 ; [1984] 3 All ER 374 at 377-8; R Heuston and R Buckley, Salmond and Heuston on the Law of Torts, 21st ed, Sweet & Maxwell, London, 1996, pp 120-1.
See Stubbings at AC 508;All ER 329; Devlin at 367.
Devlin at 367.
[1932] AC 562 ; [1932] All ER Rep 1.
(1866) LR 1 Ex 265; affirmed Rylands v Fletcher (1868) LR 3 HL 330.
Buckle v Holmes [1926] 2 KB 125 at 128; Draper v Hodder [1972] 2 QB 556 at 569 ; [1972] 2 All ER 210 at 217; Jones v Linnett [1984] 1 Qd R 570 at 574-5.
See, for example, Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 ; 69 ALR 615 ; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 ; 120 ALR 42 .
See, for example, the treatment of the rule in Indermaur v Dames (1866) LR 1 CP 274 ; (1867) LR 2 CP 311 by Dr Stallybrass, as editor of the 10th edition of Salmond's Law of Torts, Sweet & Maxwell, London, 1945, pp 476-81. This was followed by the rebuff in London Graving Dock Co Ltd v Horton [1951] AC 737 ; [1951] 2 All ER 1 to the assimilation of occupiers' duties into the general law of negligence, and then by the Occupiers' Liability Act 1957 (UK).
Mason at 326-7.
Mason at 329.
Section 5(1A) took the form critical for this appeal, and set out earlier in these reasons, after amendment by s 3 of the Limitation of Actions (Amendment) Act 1989 (Vic). This also added subss (1B) and (1C) to s 5. Section 5(1C) provides that s 5(1A) applies "despite anything to the contrary in this or any other Act".
Vic Hansard, Legislative Assembly, 14 December 1982, p 2765.
Vic Hansard, Legislative Assembly, 14 December 1982, p 2766.
(1981) 147 CLR 297 at 304 ; 35 ALR 151 at 156 (Cooper Brookes).
Cf Cooper Brookes at CLR 305;ALR 157.
Cf Cooper Brookes at CLR 323;ALR 171.
Cf Mason at 330.
Mason at 327-8.
Cmd 7740, 1949.
Mason at 328.
Stubbings at AC 503,507;All ER 325,329.
Stubbings at AC 508;All ER 329.
The only material difference was that in the Irish legislation, the limitation period ran from the later of the date when the cause of action accrued and the date of knowledge of the plaintiff, whereas in s 5(6) the limitation period merely ran from when the cause of action accrued.
See Mason at 329-30.
Cf Mason at 330.
[2005] VSCA 309 .
Clark v Stingel [2005] VSCA 107 (Clark).
Winneke P, Charles and Eames JJA; Warren CJ and Callaway JA dissenting.
Mason v Mason [1997] 1 VR 325 (Mason) per Callaway JA (Hayne JA and Smith AJA concurring), following Kruber v Grzesiak [1963] VR 621 (Kruber) per Adam J.
[2005] HCATrans 969 at 12-13.
The provisions of s 5(1A) were introduced into the Act by s 3 of the Limitation of Actions (Personal Injury Claims) Act 1983 (Vic).
Inserted by s 3 of the Limitation of Actions (Personal Injuries) Act 1972 (Vic). The provision commenced operation in 1973.
The appellant originally commenced proceedings for an extension of the limitation period under s 23A of the Act. However, this was abandoned, presumably because of recognised difficulties in establishing the preconditions to the application of that section in the circumstances.
Joint reasons at 18.
Reasons of Hayne J at 132-133.
Reasons of Gummow J at 75.
Joint reasons at 26-28.
Devlin v Roche [2002] 2 IR 360 at 367 (Devlin) per Geoghegan J (for the court).
Stubbings v Webb [1993] AC 498 ; [1993] 1 All ER 322 (Stubbings).
Devlin.
Such as Kruber; Hayward v Georges Ltd [1966] VR 202 ; Ure v Humes Ltd [1969] QWN 25; Mason; Clark at 51-61. See also O'Neill v Foster (2004) 61 NSWLR 499 at 510 42 ; [2004] NSWSC 906 .
Cf Queensland v Stephenson (2006) 227 ALR 17 at 28-30 49-56 ; [2006] HCA 20 ; Davison v Queensland (2006) 227 ALR 1 at 12 41 ; [2006] HCA 21 (Davison).
See, for example, Roy Morgan Research Centre Pty Ltd v Cmr of State Revenue (Vic) (2001) 207 CLR 72 at 77 9, 89 46 ; 181 ALR 307 at 309, 319 ; [2001] HCA 49 ; Neindorf v Junkovic (2005) 222 ALR 631 at 641 42 ; 80 ALJR 341 at 350-1 ; [2005] HCA 75 ; Weiss v R (2005) 223 ALR 662 at 671 31 ; 80 ALJR 444 at 452 ; [2005] HCA 81 .
As to the facts see the joint reasons at 1-7; reasons of Gummow J at 34-38. As to the statutory provisions see the joint reasons at 3-7; reasons of Gummow J at 45, 51; reasons of Hayne J at 124-126.
Joint reasons at 12-13.
Joint reasons at 13.
Joint reasons at 9, 14, 17.
Joint reasons at 13.
Joint reasons at 13.
Joint reasons at 12.
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552, 565 ; 139 ALR 1 at 8-9, 19 ; [1996] HCA 25 .
Cf Davison at 10 34.
News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563 at 580 42 ; 200 ALR 157 at 168 ; [2003] HCA 45 .
The Limitation of Actions (Personal Injury Claims) Act.
Cole v Turner (1704) Holt KB 108 ; 90 ER 958 ; Bunyan v Jordan (1937) 57 CLR 1 at 13 ; [1937] ALR 204 at 207-8; F Trindade, "Intentional Torts: Some Thoughts on Assault and Battery", (1982) 2 OJLS 211 ; P Glazebrook, "Assaults and their consequences", (1986) 45 CLJ 379 ; B Feldthusen, "The Canadian Experiment with the Civil Action for Sexual Battery", in Torts in the Nineties (ed N Mullany), Lawbook Co, Sydney, 1997, p 281. No argument was advanced in this appeal as to the existence of a new nominate tort of sexual battery.
See, for example, M Franks, Limitation of Actions, Sweet & Maxwell, London, 1959, pp 196-7; cf A McGee, Limitation Periods, 4th ed, Sweet & Maxwell, London, 2002, pp 129-31.
Reasons of Hayne J at 130-131.
Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 at 257 16 ; 215 ALR 253 at 257 ; [2005] HCA 28 (Palgo Holdings) per McHugh, Gummow, Hayne and Heydon JJ.
Macpherson & Kelley v Kevin J Prunty & Associates [1983] 1 VR 573 at 587.
Joint reasons at 17.
Section 5(1)(a) of the 1955 Act.
Section 5(6).
In fact, the phrase "negligence, nuisance or breach of duty" seems to have appeared first in s 3(1)(b)(i) of the Personal Injuries (Emergency Provisions) Act 1939 (UK), for the exclusion of entitlements to damages caused by a "war injury". In Billings v Reed [1945] KB 11 at 18-19 ; [1944] 2 All ER 415 at 420, the English Court of Appeal held that, in such a context, the words "breach of duty" were wide enough to include trespass.
Victoria, Report from the Statute Law Revision Committee on the Limitation of Actions Bill, 1950.
Joint reasons at 10; reasons of Gummow J at 67.
United Kingdom, Report of the Committee on the Limitation of Actions, Cmd 7740, 1949.
Stubbings at AC 502-3;All ER 325-6.
Section 2(1), inserting a proviso into s 2 of the Limitation Act 1939 (UK).
Vic Hansard, Legislative Assembly, 7 September 1955, p 279.
The broad view was adopted in Letang v Cooper [1965] 1 QB 232 ; 1964 2 All ER 929 and Long v Hepworth 1968 1WLR1299 ; 1968 3 All ER 248.
Stubbings at AC 502-3;All ER 325-6.
Devlin v Roche unreported, High Court of Ireland, Morris P, 4 April 2001. See Devlin at 363.
Devlin at 367.
Joint reasons at 13-14.
Stubbings at AC 508;All ER 329-30.
Stubbings at AC 507-8;All ER 329. See also UK Hansard, House of Lords, 20 May 1954, p 825.
Law Society v Sephton & Co [2006] 3 All ER 401 at 405 7-9, 413 41, 418-19 60 ; [2006] 2 WLR 1091 (HL) at 1094-5, 1102, 1108.
Stubbings at AC 506;All ER 328.
Palgo Holdings at CLR 264 35-36;ALR 262-3.
Coleman v Power (2004) 220 CLR 1 at 95-6 245-246 ; 209 ALR 182 ; [2004] HCA 39 ; cf Ahmad v Inner London Education Authority [1978] QB 36 at 48 ; [1978] 1 All ER 574 at 583 per Scarman LJ.
See Clark at 80 cited in the joint reasons at 22. See also Mazzeo v Caleandro Guastalegname & Co (2000) 3 VR 172 at 189 43-44 ; [2000] VSCA 230 .
Joint reasons at 26.
Joint reasons at 26.
Joint reasons at 26.
Joint reasons at 27.
R v Lavender (2005) 218 ALR 521 at 537-8 69 ; 79 ALJR 1337 at 1350 ; 43 MVR 1 at 17 ; [2005] HCA 37 ; Clarke v Bailey (1993) 30 NSWLR 556 at 571.
Lord Steyn, "The Intractable Problem of The Interpretation of Legal Texts", (2003) 25 Syd LR 5, p 8.
Al-Kateb v Godwin (2004) 219 CLR 562 at 629-30 191 ; 208 ALR 124 at 173 ; 79 ALD 233 at 282.
Lord Steyn, "The Intractable Problem of The Interpretation of Legal Texts", (2003) 25 Syd LR 5, p 8.
Joint reasons at 28.
Joint reasons at 29.
[2005] VSCA 309.
Limitation Act 1980 (UK), the relevant provision of which derived from the Law Reform (Limitation of Actions, & c) Act 1954 (UK).
[1993] AC 498 ; [1993] 1 All ER 322 (Stubbings).
Statute of Limitations (Amendment) Act 1991 (Ir).
[2002] 2 IR 360 (Devlin).
Kruber v Grzesiak [1963] VR 621 (Kruber); Hayward v Georges Ltd [1966] VR 202 at 204 (Hayward).
Kruber; Hayward.
Mason v Mason [1997] 1 VR 325 .